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[2024] QCA 111
procedural. Application to stay the hearing of the appeal on 22 July 2024 refused. Costs reserved ([15]–[16]).
2 cited instruments linked from this judgment.
Wikeley wanted his Queensland appeal postponed until the New Zealand Court of Appeal ruled on a related appeal. Mullins P refused. A win in New Zealand would not automatically end the New Zealand case or resolve the Queensland contempt proceeding. Wikeley had already received one adjournment, there was no concrete plan for him to have lawyers at a later hearing, and he had detailed appeal outlines prepared by his former lawyers. The Court considered that further delay was not justified in the interests of justice. Costs were reserved.
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1,816 words · generated 08/10/2026
In Wikeley v Kea Investments Ltd [No 2] [2024] QCA 111, Mullins P dealt with an application to postpone the hearing of an appeal in the Queensland Court of Appeal. The applicant, Kenneth David Wikeley, wanted the appeal hearing stayed until the New Zealand Court of Appeal delivered its reserved decision on his appeal from a New Zealand High Court judgment ([1]). That New Zealand appeal had been heard on 20 May 2024.
The Queensland appeal was listed for 22 July 2024. It concerned the refusal by Cooper J to set aside interim injunctions made in April 2023 in support of the New Zealand proceeding and to stay a contempt proceeding brought against Wikeley for alleged breach of those injunctions, as described in the catchwords and at [12].
The procedural history was relevant. Wikeley’s original lawyers had prepared and filed appeal outlines. After those lawyers ceased acting, Wikeley obtained an adjournment of the appeal from its March 2024 listing. He then acted in person ([4]). The Court had previously warned that, subject to any further order, the relisted hearing would not be subject to “further deferment” ([4]). Mullins P made clear that this did not prevent Wikeley from applying for a stay, but it formed part of the procedural context.
The application was refused. Mullins P concluded that the interests of justice did not favour further delay, particularly because postponement was not assured of producing a different position on representation and Wikeley had the benefit of the outlines prepared by his former lawyers ([14]–[15]). Costs were reserved, to be addressed with the appeal or by specific submissions connected with it ([16]).
A central reason was that Wikeley’s application depended on an incorrect assumption about the relationship between the New Zealand and Queensland proceedings. He assumed that the Queensland case would collapse if he succeeded in New Zealand. Mullins P described that as “a misunderstanding of the nature of the proceedings in Queensland and New Zealand” ([10]).
The Court explained that, if the New Zealand appeal succeeded, the New Zealand judgment and subsequent costs judgment would be set aside, but the New Zealand proceeding would remain on foot. It could then proceed to a contested hearing. The Court also noted evidence that Kea might seek interim orders again if Wikeley succeeded, and that this possibility had been foreshadowed in argument before the New Zealand Court of Appeal ([11]). Thus, the expected New Zealand decision could affect the course of the litigation without necessarily bringing it to an end.
The contempt application was another relevant feature. Mullins P noted that it was not being pursued while the Queensland appeal remained outstanding ([12]). The Court considered that even if a court ultimately found that interim injunctive relief exceeded jurisdiction, there had still been orders in both jurisdictions which Kea alleged Wikeley had breached. The Court said the contempt proceeding would continue ([12]), citing Ross v Lane Cove Council (2014) 86 NSWLR 34 at [17]. The decision does not set out the reasoning in Ross in detail; it uses that citation in support of its observation about the continuing contempt proceeding.
The Court also considered the practical prospects of Wikeley having representation at a later hearing. He expressed hope that success in New Zealand might improve his circumstances sufficiently to re-engage junior counsel, but the Court regarded that as speculation because there was no concrete plan for representation ([9]). In addition, Wikeley had already received an adjournment, and detailed appeal outlines had been prepared by his former lawyers ([4], [13]).
Finally, the Court referred to the public interest in resolving contempt proceedings in a timely way. It connected that consideration with the r 5 philosophy of the Uniform Civil Procedures Rules 1999 (Qld), described at [4] as facilitating the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. The combined circumstances led to the refusal of further delay ([14]).
The judgment does not describe a change in the law or announce a new general test for stays. Its reasoning is a case-specific application of procedural considerations to an application to delay an appeal. The text refers to r 5 of the Uniform Civil Procedures Rules 1999 (Qld), the interests of justice, prior adjournment, the likely utility of further delay, the available appeal materials, and the public interest in timely contempt proceedings ([4], [14]).
Before the ruling, the appeal was set for hearing on 22 July 2024, while the New Zealand Court of Appeal’s decision was reserved. Wikeley sought to have the Queensland hearing wait for that decision. After the ruling, the Queensland hearing remained listed for 22 July 2024, because the stay application was refused ([15]). Costs of the stay application remained unresolved and were reserved ([16]).
The judgment’s analysis is specific to the overlap between these proceedings. It does not establish that a related overseas appeal can never justify a stay, nor that an applicant’s self-represented status is immaterial. Rather, the reasons identify the circumstances Mullins P considered here: the anticipated New Zealand decision would not necessarily end the related proceedings; contempt remained live; a previous adjournment had occurred; representation at a later date was speculative; and appeal outlines were available ([9]–[14]). The supplied judgment does not state a broader rule beyond those considerations.
At [4], Mullins P describes r 5 as reflecting “the overriding philosophy” of facilitating “the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.” In plain English, the Court considered that procedure should aim to resolve the genuine dispute fairly and without unnecessary delay or expense. The passage also clarifies that the earlier warning against “further deferment” did not bar a new application; the Court still considered the stay on its merits.
At [10], the Court says Wikeley’s assumption that the Queensland case would collapse if he won in New Zealand was a misunderstanding. In plain English, the two proceedings were related but not identical in their procedural consequences. A favourable result in one did not automatically dispose of the other.
At [11], the Court explains that setting aside the New Zealand judgment would leave the New Zealand proceeding on foot and allow it to proceed to a contested hearing. In plain English, appellate success might undo the existing judgment without ending the underlying dispute. Mullins P also noted the possibility of renewed interim orders, rather than treating that possibility as certain.
At [12], the Court distinguishes the challenge to the injunctions from the allegations that orders had been breached. In plain English, even a later argument that interim relief exceeded jurisdiction would not, as the Court viewed it, make the alleged past breach disappear or automatically end the contempt proceeding.
At [14], Mullins P states that timely resolution of contempt proceedings is a matter of public interest and that “the interests of justice do not favour further delaying” the appeal. In plain English, the Court balanced Wikeley’s request for more time against the need to progress the appeal and the related contempt matter, in light of the case-specific circumstances.
The decision is most directly relevant to a procedural application to postpone an appeal where the applicant relies on the expected outcome of related litigation in another jurisdiction. Its reasoning is particularly tied to a situation where the foreign appeal may not finally dispose of the underlying proceeding, and where the domestic appeal relates to interim orders supporting that foreign proceeding ([10]–[12]).
It may also be relevant where delay is sought because of a possible change in representation. Here, the Court considered that the applicant had no concrete plan to obtain lawyers later and had existing written outlines prepared by former lawyers ([9], [13]). The case does not establish that the availability of prior outlines will always be sufficient for a self-represented litigant, or that self-representation alone cannot support an adjournment. Those questions are not decided in the text.
The decision also addresses the procedural setting of an unresolved contempt application. The contempt matter was not being pursued while the appeal remained outstanding, and the Court treated timely resolution as a public-interest consideration ([12], [14]). The ruling should therefore be read in the context of a linked appeal and contempt proceeding, not as a general determination of the substantive jurisdictional issues concerning the injunctions.
The supplied judgment contains no information about how later courts treated Wikeley v Kea Investments Ltd [No 2]. It would not be possible, from this text alone, to say that a later court followed, distinguished, approved, or questioned the decision.
The only other case expressly identified in Mullins P’s reasons is Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50, cited at [12]. The judgment refers to Ross in connection with the observation that the contempt proceeding would continue despite a possible later finding that interim injunctive relief exceeded jurisdiction. It does not provide a fuller account of the cited case or describe its subsequent treatment.
Accordingly, the available source supports identifying Ross as a cited authority, but not making claims about subsequent judicial treatment of either case.
The judgment does not determine the merits of Wikeley’s Queensland appeal. In particular, it does not decide whether the Supreme Court of Queensland was a plainly inappropriate forum, whether the court exceeded its jurisdiction in making the anti-enforcement injunction, or whether the injunctions were otherwise correct. Those issues were described as matters advanced in the existing appeal outlines ([13]).
Nor does the decision resolve the allegations of contempt. It records that the respondent asserted breaches and that the contempt proceeding was not being pursued while the appeal remained outstanding ([12]). The ruling concerned only whether the appeal hearing should be postponed.
The effect of any eventual New Zealand appellate decision also remained open. Mullins P described what might happen if Wikeley succeeded, including the possibility that the New Zealand proceeding would continue and that further interim orders might be sought ([11]). The judgment does not state what the New Zealand Court of Appeal ultimately decided or what steps followed.
Finally, the reasons do not formulate a comprehensive test for stays in cross-border litigation. They explain why this application was refused on its particular facts, applying the procedural objectives identified at [4] and the interests-of-justice assessment at [14]. Any use of the decision in another setting would need to take account of differences in the procedural history, the relationship between the proceedings, the consequences of the expected judgment, and the practical basis advanced for delay.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Wikeley v Kea Investments Ltd [No 2] [2024] QCA 111
PARTIES: KENNTH DAVID WIKELEY / (appellant/applicant) / v / KEA INVESTMENTS LTD / (respondent)
FILE NO/S: Appeal No 13868 of 2023 / SC No 4338 of 2023
DIVISION: Court of Appeal
PROCEEDING: Application to Stay Proceedings
ORIGINATING COURT: Supreme Court at Brisbane – [2023] QSC 79 (Cooper J)
DELIVERED EX TEMPORE ON: 13 June 2024
DELIVERED AT: Brisbane
HEARING DATE: 13 June 2024
JUDGES: Mullins P
ORDERS: Application to stay the hearing of the appeal on 22 July 2024 is refused.Costs reserved.
CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – WHEN REFUSED – where the primary judge had made ex parte interim injunctions against the appellant (the injunctions) in support of the New Zealand proceeding brought against the appellant by the respondent in which similar injunctions had been made – where the respondent brought an application for contempt against the appellant for breach of the injunctions – where the primary judge refused to set aside the injunctions and stay the contempt proceeding – where the appellant appealed against that refusal – where the appellant had obtained an adjournment of the appeal for four months when his lawyers withdrew – where the appellant had appealed the final primary judgment in the New Zealand proceeding and the decision of the New Zealand Court of Appeal was reserved – where the appellant applied for a stay of the hearing of the appeal until after the judgment was given by the New Zealand Court of Appeal – where the appellant was mistaken that the proceedings in Queensland would collapse if his appeal in New Zealand succeeded – where the contempt proceeding in the Trial Division was not being pursued while the appeal in Queensland was outstanding – where the appellant was self-represented but had the benefit of the outlines for the appeal prepared by his original lawyers – whether it was in the interests of justice to further delay the hearing of the appeal / Uniform Civil Procedures Rules 1999 (Qld), r 5 / Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50, cited
COUNSEL: The appellant/applicant appears on his own behalf / P K O'Higgins KC, with S A Noble, for the respondent
SOLICITORS: The appellant/applicant appears on his own behalf / Colin Biggers and Paisley for the respondent
MULLINS P: The appellant applies for a stay of the hearing of the appeal in this matter until after the judgment is given by the New Zealand Court of Appeal in respect of the appellant’s appeal against the judgment of Gault J given on 17 November 2023: Kea Investments Ltd v Wikeley Family Trustee Limited (in interim liquidation) [2023] NZHC 3260 (NZ final primary judgment). The hearing of the appeal against the NZ final primary judgment was heard on 20 May 2024 and the decision was reserved.
The appeal in this Court was originally listed for hearing on 19 and 20 March 2024. I heard a security for costs application on 12 December 2023 and made orders granting security: Wikeley v Kea Investments Ltd [2023] QCA 255 (security for costs reasons).
In the security for costs reasons, I summarised the proceedings before the Trial Division of this Court and gave brief details of the proceedings in Kentucky and New Zealand. I will not repeat the summary but refer to the history of that litigation between the parties, as it is relevant to dealing with the appellant’s application for a stay of the appeal to this Court.
The lawyers who were originally representing the appellant in the appeal to this Court had filed the outline of submissions on behalf of the appellant on 5 December 2023. The respondent’s outline was filed on 19 January 2024 and the appellant’s submissions in reply prepared by his lawyers were filed on 16 February 2024. Subsequent to that, the appellant’s lawyers ceased acting for him. He applied for an adjournment of the appeal that was listed in March 2024. Morrison JA adjourned the appeal to a date to be fixed by the Registry and noted that, subject to any order of the Court, the date that is set for the hearing of the appeal will not be the subject of “further deferment”. That warning by Morrison JA does not preclude the appellant’s current application for a stay (or an adjournment) of the hearing of the appeal but reflects the overriding philosophy of rule 5 the Uniform Civil Procedures Rules 1999 (Qld) to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. A notice that the appellant was acting in person was filed on 27 March 2024. The appeal was relisted for a one day hearing on 22 July 2024.
The respondent opposes the appellant’s application for a stay of the appeal or any adjournment of the hearing of the appeal that is listed for 22 July 2024.
The NZ final primary judgment was delivered after a “formal proof hearing”, as the appellant did not appear to oppose the final relief sought by the respondent in the New Zealand proceeding.
For the purpose of the stay application the appellant sought to rely on the transcript of the hearing before the New Zealand Court of Appeal on 20 May 2024 (which I made exhibit 1 on the stay application) and five affidavits (which I made exhibits 2 to 6 on the stay application) in respect of which he sought leave to adduce into evidence before the New Zealand Court of Appeal that endeavoured to explain why he had acted on legal advice not to contest the merits of the respondent’s claims against him in the New Zealand proceeding but to rely on the question of jurisdiction and also went to the merits of his defence of the respondent’s claims. Those exhibits were received on this stay application for the purpose of showing the extent of the issues before the New Zealand Court of Appeal and not as the truth of the facts asserted before the New Zealand Court of Appeal by the appellant or in the affidavits which he seeks leave to adduce before the New Zealand Court of Appeal.
…
Wikeley
Kea Investments Ltd
(2014) 86 NSWLR 34
Application to stay the hearing of the appeal on 22 July 2024 refused. Costs reserved ([15]–[16]).
The appellant has not sworn any affidavit in support of his application for the stay. He has included evidentiary matters in his written submissions received by the Court on 10 June 2024 in support of the stay and also in his oral submissions.
There is no concrete plan on the appellant’s part that he will have legal representation for the appeal in this Court, whether it is heard on 22 July 2024 or at a later date. His submissions are put before the Court as a self-represented litigant. He expresses a hope that if he succeeds in the New Zealand Court of Appeal “things might have improved” to enable him to re-engage the junior counsel who assisted in the preparation of the outlines for this appeal but at this stage that appears to be speculation.
The assumption that underpins the appellant’s application for the stay is that the case against him in Queensland collapses, if he wins the appeal in New Zealand. That is a misunderstanding of the nature of the proceedings in Queensland and New Zealand.
If the appellant succeeds in his appeal against the NZ final primary judgment, the judgment of Gault J given on 17 November 2023 (and the subsequent costs judgment given on 5 December 2023) will be set aside but the New Zealand proceeding will remain on foot and there will be the opportunity for those proceedings to proceed to a contested hearing. It is not inevitable that the New Zealand proceeding will fail, if the appellant has some success in the New Zealand Court of Appeal. Mr Deighton who is the respondent’s solicitor in the proceedings in this Court deposes that if the New Zealand Court of Appeal allows the appellant’s appeal to that Court, it is likely that the respondent will also seek interim orders restraining the appellant similar to those it obtained from the Trial Division of this Court in April 2023 pursuant to the Trans-Tasman Proceedings Act 2010 (Cth) (in support of the New Zealand proceeding). That was, in fact, foreshadowed in the argument before the New Zealand Court of Appeal by the respondent’s counsel.
Apart from that misconception on the appellant’s behalf as to the effect of a successful appeal in New Zealand, there is the extant contempt application in the Trial Division which is not being pursued while the appeal to this Court remains outstanding. The appeal in this Court is, in substance, about the correctness of the orders made by Cooper J in April 2023 in support of the New Zealand proceeding and the interim orders that had been made in New Zealand. Even if the appellant is ultimately successful in either New Zealand or Australia in showing that the injunctive relief granted on an interim basis in New Zealand was in excess of jurisdiction, the fact remains that there were orders in both New Zealand and Australia to which the appellant was subject that the respondent asserts were breached by him and the contempt proceeding in the Trial Division of this Court would continue. See Ross v Lane Cove Council (2014) 86 NSWLR 34 at [17].
The appellant has the benefit of considered and extensive outlines prepared by lawyers on his behalf for the purpose of the appeal that assert that the Supreme Court of Queensland was a plainly inappropriate forum and that it exceeded its jurisdiction in making an anti-enforcement injunction against the appellant.
It is a matter of public interest that contempt proceedings be resolved in a timely way. The appellant has already been given one adjournment of the hearing of the appeal in this Court. Particularly as any further delay in the hearing of the appeal on 22 July 2024 is not assured of making any difference to the appellant obtaining legal representation and the appellant has the benefit of the outlines prepared by the lawyers who had acted for him originally in the connection with the appeal, the interests of justice do not favour further delaying the hearing of the appeal on 22 July 2024.
The application to stay the hearing of the appeal on 22 July 2024 is refused. I’m proposing to reserve the costs. They can just be dealt with on the hearing of the appeal. Did you wish to say anything about that?