1. Order pursuant to s.118 of the Victorian Civil and Administrative Tribunal Act 1998 that the orders made on 8th February 2006 do not come into effect until 4:00pm on 24th February 2006.

Mr Fox, instructed by the Victorian Government Solicitor.

Mr North S.C., with Mr Nugent and Mr Hopper, instructed by Mitrakas Savas & Co., Lawyers & Consultants.

Mr Hammond Q.C., with Mr Reilly, instructed by Cornwall Stodart, Lawyers.

1 In these matters, I delivered detailed written reasons on 3rd February last. I also announced that I would be making orders of the type sought by the State of Victoria ("the SOV"), but, for reasons then announced, I would permit "fine tuning" of the proposed wording.

2 On 8th February, the matters were before me again. Counsel on behalf of Bradto Pty Ltd ("Bradto") and Tymbook Pty Ltd ("Tymbook") along with counsel for the SOV, were then heard in this regard. Ultimately a formal wording of the orders was agreed, and I made the orders as at that date. They will be authenticated this day. Counsel for both Bradto and Tymbook made it clear that they objected to both the form and substance of the orders, and each had instructions that leave to appeal would be pursued upon the orders being made. I accept that. However, at least in relation to the actual wording of the orders, agreement was reached, a rarity in these cases.

3 The question then argued, at length, was, in essence, whether any and if so what stay should or could be granted. The ruling which follows, prepared with some haste, should be read in the context of and in conjunction with the various rulings previously given.

4 In relation to the issue of whether a stay can be ordered in circumstances where leave to appeal has not been obtained but an application for it is foreshadowed, I would make the following observations.

5 Section 149 of the Victorian Civil and Administrative Tribunal Act 1998 ("the Act") does seem to me to be capable of bearing a number of interpretations. It may mean, as argued by Mr Fox on behalf of the SOV, that the granting of leave to appeal is a prerequisite. It may mean that a stay pursuant to that section can only be granted on the basis that the stay continues until the determination of the appeal, and not for a shorter time. It may be intended to cover a situation - and I suspect that this is the most likely broad interpretation - where the result of an appeal in a particular matter may affect related matters or a class of matters, which should be put on hold pending a determination. The fact that the section provides that the Tribunal may stay the operation of an order "on its own initiative" and that the section refers to "any appeal" strengthens my suspicion. Section 149 may cover both that situation and individual appeals. I appreciate that the section has been applied by this Tribunal in different ways.

6 Therefore I am of the view that the safer way to effectively order a stay in particular cases such as those before me, and where leave to appeal has not been obtained, is pursuant to s.118 of the Act. This also enables an effective stay to be granted to a particular day and not only until the determination of the appeal. Section 118 clearly contemplates a distinction between the time of the making of an order and the time in which it comes into operation.

7 Whether the correct section applicable be s.118 or s.149, the same principles will apply. Consideration must be given as to whether the granting of the stay, as I shall describe it whichever section may be utilised, will render a proposed appeal nugatory. As discussed by Hollingworth J in Brown and Anor v A.E.P. Belgium S.A. and Anor [2004] VSC 255, consideration should be given to the prospect of obtaining leave to appeal, the effect of a grant or refusal of the stay, and the balance of convenience. In Stephens v Garandu P/L [2004] VCAT 1751, Morris J, in considering the stay application, determined it in a practical fashion "having regard to the justice of the matter".

8 When these various factors are taken into account, in my opinion a stay of the type sought in the proposed orders presented by counsel on behalf of Tymbook should not be given - that is, I am against the making of an order to the effect that the orders made do not come into effect until the granting of leave to appeal and any subsequent appeal or further order. Bradto also effectively seeks a stay pending appeal.

9 The granting of such a stay effectively deprives the SOV of the fruits of its judgment, something which must also be taken into consideration. Since the matters commenced before me a considerable time ago, the SOV has repeatedly stressed the urgency of the situation and the desirability of it obtaining the injunctive relief sought in order for its examiners to gain access to the subject premises before the expiry of the Crown leases which, it argues, relying upon the covenants in the leases, occurs on 31st March 2006. This timetable in relation to the proposed tendering process is, at least in part, contingent upon this. I have referred to urgency on its part, and the lack of delay on its part, in my reasons of 3rd February last.

10 As far back as my first ruling in the case of Bradto on 7th September 2005, I observed that many would consider that the approach then being adopted by Bradto smacked of obfuscation and delay for commercial purposes. At that early stage I was bearing in mind the overall urgency of the situation. My remarks generally as to delay and technicality appear in several rulings, including my reasons of 3rd February last.

11 It is argued that not granting a stay of the type sought would render any appeal nugatory. However, when weighing up the balance between this factor and the factor of depriving the SOV of the fruits of its judgment, and when considering the balance of convenience and what Morris J describes as the justice of the matter, it seems to me that the scales tip heavily in favour of the SOV. I have already commented in my principal reasons on the nature of the relief sought - basically limited examinations, testing and the taking of samples - and the various undertakings, including the usual undertaking as to damages - which have been given. I agree with Mr Fox on behalf of the SOV in his assertion, in the context of the absence of exceptional circumstances, that no irreparable damage shall be done. This is not a possession case, unlike some of the authorities to which I have been directed. I again refer back to my principal reasons for granting the relief sought.

12 Counsel on behalf of Bradto has said that the damage done will be the dissemination of information. If information is so disseminated as anticipated, presumably it will be a report on the existence or non-existence of asbestos and other hazardous material, such report being presented to a very limited number of tenderers. I do not regard this as being something tilting the balance in favour of Bradto.

13 In short, in exercising my discretion and having regard to the principles to be applied, I am against granting a stay of the type sought by Bradto and Tymbook. I should add that, in relation to a consideration of the prospects of obtaining leave to appeal, these matters, whilst at heart are simple, have required consideration, and the dealing with, of a considerable number of submissions, some of which arguably involve questions of law. To adopt the wording of Hollingworth J in Brown, I cannot say that the prospects of Bradto and Tymbook are obviously hopeless in that regard. I am not against Bradto and Tymbook in relation to that argument. However, to my mind, again adapting and adopting the wording of Hollingworth J, the balance of convenience overwhelmingly favours the refusal of a stay of the type sought.

14 However, I am also aware that the Court of Appeal may take a different view. As Mr Hammond, on behalf of Tymbook said, no man is infallible.

15 I am prepared to order pursuant to s.118 that these orders not come into effect until 4:00pm on Friday, 24th February next. I appreciate that affidavit material before me indicates that an application for leave to appeal and a stay would be heard on 17th March 2006, subject to any other applications filed before 10th February 2006. To render the orders made ineffective until the 17th March 2006, assuming the application for leave to appeal and the stay could then be heard, would again be effectively to deprive the SOV of the fruits of its judgment. There has been much delay in the hearing of these matters, and, as I have previously stated, very little, if any, of that delay is attributable to the SOV.

16 Everyone should be overwhelmingly familiar with the substance of this matter. The delay in the coming into effect of these orders until 4:00pm on 24th February 2006 provides an opportunity for any urgent application to the Court of Appeal that any party should wish to make. If I am wrong in refusing to grant a stay of the order sought, the Court of Appeal will remedy the situation.

17 Accordingly there is an additional order that, pursuant to s.118 of the Victorian Civil and Administrative Tribunal Act 1998, the orders made on 8th February 2006 shall not come into effect until 4:00pm on 24thth February 2006.