Apache Northwest Pty Ltd v Department of Mines and Petroleum [No 3]
[2011] WASC 314
•26 OCTOBER 2011
APACHE NORTHWEST PTY LTD -v- DEPARTMENT OF MINES AND PETROLEUM [No 3] [2011] WASC 314
Pending Appeal
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 314 | |
| Case No: | GDA:1/2011 | 26 OCTOBER 2011 | |
| Coram: | EDELMAN J | 26/10/11 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Orders stayed for 28 days | ||
| B | |||
| PDF Version |
| Parties: | APACHE NORTHWEST PTY LTD DEPARTMENT OF MINES AND PETROLEUM LANDER AND ROGERS, LAWYERS |
Catchwords: | Practice and procedure Application by appellant for stay of orders Turns on its own facts |
Legislation: | Freedom of Information Act 1992 (WA), s 34 Supreme Court (Court of Appeal ) Rules 2005 (WA), r 26, r 43 |
Case References: | Apache Northwest Pty Ltd v Department of Mines and Petroleum [2011] WASC 283 Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222 Smolarek v Brian Keith McMaster as Administrator of Eznut Pty Ltd [2006] WASCA 216 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
DEPARTMENT OF MINES AND PETROLEUM
First Respondent
LANDER AND ROGERS, LAWYERS
Second Respondent
ON APPEAL FROM:
Jurisdiction : INFORMATION COMMISSIONER OF WESTERN AUSTRALIA
Coram : COMMISSIONER S H BLUEMMEL
File No : F 37 of 2009
Catchwords:
Practice and procedure - Application by appellant for stay of orders - Turns on its own facts
(Page 2)
Legislation:
Freedom of Information Act 1992 (WA), s 34
Supreme Court (Court of Appeal ) Rules 2005 (WA), r 26, r 43
Result:
Orders stayed for 28 days
Category: B
Representation:
Counsel:
Appellant : Mr L Brown
First Respondent : Ms F Seaward
Second Respondent : Mr B Reilly
Solicitors:
Appellant : Middletons
First Respondent : State Solicitor for Western Australia
Second Respondent : Lander & Rogers
Case(s) referred to in judgment(s):
Apache Northwest Pty Ltd v Department of Mines and Petroleum [2011] WASC 283
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222
Smolarek v Brian Keith McMaster as Administrator of Eznut Pty Ltd [2006] WASCA 216
(Page 3)
1 EDELMAN J: On 17 October 2011 I published my reasons for decision in an appeal from a decision of the Information Commissioner: Apache Northwest Pty Ltd v Department of Mines and Petroleum [2011] WASC 283. At the request of the parties I adjourned the making of orders to allow further time for the parties to confer about the appropriate consequential orders.
2 Following receipt of email correspondence this morning which indicated that the orders could not be agreed, I directed that a telephone hearing be held this afternoon for directions concerning the appropriate orders.
3 The parties agreed that the following two orders should be made:
1. Appeal dismissed
2. The Appellant pay the Second Respondent's costs of the appeal, including reserved costs, such costs to be taxed in default of agreement.
4 No agreement was reached concerning a third order. The appellant sought an order in the following terms:
3. Orders 1 and 2 be stayed until the later of 21 days after the date of these orders or the hearing and determination of any appeal from the judgment [sic: orders] of the Honourable Justice Edelman delivered 17 October 2011 [sic: 26 October 2011].
5 The second respondent, whilst not conceding that a stay was necessary, proposed that the third order should be as follows:
3. Orders 1 and 2 be stayed until 28 days after the date of these orders or further order.
6 The first respondent made no submissions, but agreed to abide by the order of the court.
7 Counsel for the appellant submitted (and it was not disputed) that access to the Documents which was ordered by the Information Commissioner was only deferred until the decision of the agency became final: see s 34(3)(b) Freedom of Information Act 1992 (WA) (the FOI Act).
8 Section 34(4)(d) of the FOI Act provides that an agency's decision to give access to a document is final if 'on the determination of an appeal under Division 5 of Part 4 the agency's decision has been confirmed'.
(Page 4)
9 The effect of orders 1 and 2 set out above is that I will have confirmed the agency's decision (as varied by the Information Commissioner). The appeal before me was brought under div 5 of pt 4 of the FOI Act.
10 The concern of the appellant, therefore, was that if a stay of my orders were not granted then any appeal which the appellant might bring would be rendered nugatory. The effect of my orders will be to allow the second respondent access to the Documents. The very purpose of an appeal would be to prevent that access.
11 Because of the concession of the second respondent it can be accepted for present purposes that a stay should be granted for 28 days from the date of my orders.
12 The period for appeal from my orders is 21 days: Supreme Court (Court of Appeal) Rules 2005 (WA), r 26(2).
13 A single judge of the Court of Appeal of the Supreme Court of Western Australia has power to grant a further stay of the proceedings before it: Supreme Court (Court of Appeal) Rules 2005, r 43(2)(h) and see the definition (b) in r 3 of 'interim order'.
14 If an appeal is brought to the Court of Appeal, the appellant will therefore have at least seven days to seek a further order staying my orders until determination of the appeal.
15 But the appellant wants me to go further than this. The appellant wants orders which stay my orders until the determination of an appeal by the Court of Appeal.
16 The appellant says that my orders should extend until the Court of Appeal has determined the matter for reasons of efficient use of the court's resources. I do not accept this submission. I do not consider that it would be appropriate to make such orders for two reasons. Both of these reasons outweigh any concern of efficiency.
17 First, no appeal has yet been brought. If an appeal is brought then the Court of Appeal will be seized of the matter. It is appropriate that consideration of whether a stay should be continued is a matter which should then be considered by the Court of Appeal. On the other hand, if an appeal is not brought then no stay is needed and, after 28 days, the stay I have ordered will expire.
(Page 5)
18 Secondly, although I consider that it is appropriate for me to proceed on the basis of the concession made by the second respondent, particularly in circumstances where there may be a danger that the appellant's rights could be rendered nugatory, I have none of the usual material before me which is ordinarily necessary to determine whether a stay should be granted.
19 The usual course in assessing whether a stay should be granted involves consideration of whether the applicant for a stay appears to have reasonable prospects of success, and consideration of the balance of convenience: see the decisions of Buss JA in Smolarek v Brian Keith McMaster as Administrator of Eznut Pty Ltd [2006] WASCA 216 [24]; and Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222 [21] - [22].
20 The Full Court of this Court held in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308, 311 [9] (Murray & Parker JJ) that a stay will generally be refused 'unless it can be established that the appeal process, whether upon the grant of leave or special leave or not, has ultimately reasonable prospects of success so as to result in the grant of relief to the appellant'.
21 The assessment of these usual principles, particularly whether there are reasonable prospects of success, is impossible in this case. No notice of appeal has been filed or provided to me. No grounds of appeal were suggested. I received no affidavit material.
22 For these reasons, the orders that I make are as follows:
1. Appeal dismissed
2. The appellant pay the second respondent's costs of the appeal, including reserved costs, such costs to be taxed in default of agreement.
3. Orders 1 and 2 be stayed until 28 days after the date of these orders or further order.
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