Capilano Honey Ltd v Dowling (No 1)

Capilano Honey Ltd sought a stay of certain orders made by McCallum J on 8 June 2018, pending the determination of its application for leave to appeal and the appeal itself. The Court of Appeal of New South Wales was asked to consider whether to continue the brief stay that had been granted by the primary judge.

The central legal issue before the Court of Appeal was whether to grant a stay of the primary judge's orders. This involved assessing whether the appeal was entirely without merit, whether the refusal of a stay would significantly diminish the value of the appeal, and balancing these considerations against the effect of a stay on the respondent's freedom of speech, as well as whether any stay would be futile.

Basten JA considered the arguments presented and determined that a stay was warranted. The Court reasoned that the appeal was not demonstrably without merit and that the potential prejudice to the appellant if the stay were refused, and the appeal were successful, outweighed the prejudice to the respondent. The Court also noted that the respondent's freedom of speech concerns, while relevant, did not necessitate the refusal of a stay in the circumstances.

The Court ordered that the operation of orders 2, 3, and 4 made by McCallum J on 8 June 2018 be stayed until the determination of the proceedings in the Court of Appeal. It further directed that the application for leave to appeal and the proposed appeal be heard concurrently, with costs of the motion to be costs in the application for leave to appeal or the appeal. A timetable was to be fixed to accommodate a concurrent hearing in late July 2018.