Barakat v Goritsas

Case [2012] NSWCA 8

Court of Appeal

New South Wales
Case Title: Barakat v Goritsas
Medium Neutral Citation: [2012] NSWCA 8
Hearing Date(s): 9 February 2012
Decision Date: 09 February 2012
Jurisdiction:
Before:

Basten JA
Decision:

(1) Direct that the application for leave to appeal and the proposed appeal be heard concurrently.
(2) Order that there be a stay of the proceedings in the Common Law Division pending determination of the proceedings in this Court.
(3) Order (2) will cease to operate if before the proceedings in this Court are determined, they lose their utility because of a change in the composition of the Common Law Division for the purpose of the continuation of the pending proceedings.
(4) Grant leave to the parties to approach the Registrar forthwith to fix the hearing of the application for leave to appeal and the appeal with expedition, on the basis that the hearing will be completed in one day.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - application for leave to appeal - basis of stay pending appeal -applicant to show reasonably arguable case for leave 

PROCEDURE - civil - judgments and orders - refusal to disqualify for apprehended bias - stay sought pending appeal -whether applicant need identify an interlocutory order, other than a refusal to recuse - discussion of Michael Williams & Partners v Nicholls [2011] HCA 48; 282 ALR 685

PROCEDURE - civil - interlocutory issues - stay pending appeal - power of judge of appeal to make order directing that trial not proceed pending determination of appeal or order directing a stay in the Court below -Supreme Court Act 1970 (NSW s 46(2)
Legislation Cited:

Civil Procedure Act 2005 (NSW), s 67
Supreme Court Act 1970 (NSW), s 46(2)
Supreme Court Rules 1970 (NSW), Pt 55
Cases Cited:

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170
Barton v Walker [1979] 2 NSWLR 740
Brooks v The Upjohn Company (1998) 85 FCR 469
Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126
Edwards v Santos Ltd [2011] HCA 8; 242 CLR 421
Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48
Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478
Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13
Kirk v Industrial Court (NSW) [2010] HCA 1; 239 CLR 531
Makucha v Sydney Water Corporation [2011] NSWCA 234
Makucha v Sydney Water Corporation (No 2) [2011] NSWCA 249
Michael Wilson & Partners v Nicholls [2011] HCA 48; 282 ALR 685
Nicholls v Michael Wilson & Partners…

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AGLC
Barakat v Goritsas [2012] NSWCA 8
Case
[2012] NSWCA 8
Decision Date

CaseChat Overview and Summary

In *Barakat v Goritsas*, the applicant sought leave to appeal and a stay of proceedings in the Common Law Division of the Supreme Court of New South Wales pending the determination of that appeal. The underlying dispute concerned an application to disqualify a judge for apprehended bias, which had been refused.

The primary legal issue before the Court of Appeal was whether the applicant, having been refused an order for recusal, needed to identify a specific interlocutory order to establish a basis for a stay pending appeal. The court also considered the power of a judge of appeal to grant a stay under section 46(2) of the *Supreme Court Act 1970* (NSW).

Basten JA, applying principles discussed in *Michael Williams & Partners v Nicholls*, determined that the applicant was required to show a reasonably arguable case for leave to appeal to succeed in obtaining a stay. His Honour noted that the power to grant a stay was not confined to situations where an interlocutory order had been made, but rather extended to situations where the appeal itself had sufficient merit.

The Court of Appeal ordered that the application for leave to appeal and the appeal be heard concurrently, and granted a stay of proceedings in the Common Law Division pending the determination of the appeal. This stay was conditional on the appeal retaining its utility. The parties were also directed to approach the Registrar to fix an expedited hearing.

Orders

Orders of the court

(1) Direct that the application for leave to appeal and the proposed appeal be heard concurrently.

(2) Order that there be a stay of the proceedings in the Common Law Division pending determination of the proceedings in this Court.

(3) Order (2) will cease to operate if before the proceedings in this Court are determined, they lose their utility because of a change in the composition of the Common Law Division for the purpose of the continuation of the pending proceedings.

(4) Grant leave to the parties to approach the Registrar forthwith to fix the hearing of the application for leave to appeal and the appeal with expedition, on the basis that the hearing will be completed in one day.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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