Bele & Vaughan

In the Family Court of Australia, Ms Bele (the applicant) sought a stay of orders made by Justice Cronin on 9 June 2011, and further orders to stay proceedings listed before Justice Le Poer Trench in December 2011, pending the determination of an appeal to the Full Court. The applicant also sought to stay a costs application made by Mr Vaughan (the respondent) arising from the June order. The application for a stay was heard on 9 September 2011.

The primary legal issue before the court was whether the applicant had demonstrated sufficient grounds to justify a stay of the existing orders and proceedings. This involved determining the applicable legal principles for granting a stay, particularly whether "special circumstances" were required, and assessing whether the applicant's arguments regarding jurisdictional issues and potential prejudice met this threshold. The court was also required to consider the presumption that a successful party is entitled to the benefit of a judgment and the onus placed on the applicant to displace this presumption.

Justice Cronin applied the principles established in cases such as *Kelly and Kelly* and *Maher v Commonwealth Bank of Australia*, which indicate that a stay is not granted as a matter of course and typically requires the applicant to show special or exceptional circumstances. The court found that the applicant had not demonstrated such circumstances. Specifically, the court was not satisfied that the appeal would be rendered nugatory, noting that any prejudice could potentially be addressed by an adjournment application to the trial judge or by orders relating to costs or evidence admissibility. The court also found no merit in the applicant's jurisdictional argument based on a "geographical requirement," noting that this issue was not raised at trial by senior counsel and that courts generally have jurisdiction to determine their own jurisdiction. Consequently, the court concluded that the respondent was entitled to the benefit of the judgment and that there was no significant prejudice to the applicant that would warrant a stay.

The application for a stay was dismissed, save for any issue of costs. The parties were to make written submissions regarding costs by 30 September 2011, with responses due by 14 October 2011, and any costs applications were to be determined in chambers.