Director of Public Prosecutions for Western Australia v Bennett & Co (A Firm)
[2005] WASC 1 (S)
•5 JANUARY 2005
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- BENNETT & CO (A FIRM) [2005] WASC 1 (S)
| Link to Appeal : | [2005] WASCA 141 [2005] WASCA 141 |
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 1 (S) | |
| Case No: | CIV:2335/2004 | 22 OCTOBER 2004 | |
| Coram: | ROBERTS-SMITH J | 5/01/05 | |
| 5/01/05 | |||
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA BENNETT & CO (A FIRM) |
Catchwords: | Practice and procedure Application for stay of execution pending appeal Solicitors injuncted from acting Imminent hearings of appeals against previous decisions Balance of convenience |
Legislation: | Nil |
Case References: | Ardrey v Bartlett & Ors [2004] WASCA 256 Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- BENNETT & CO (A FIRM) [2005] WASC 1 (S) CORAM : ROBERTS-SMITH J HEARD : 22 OCTOBER 2004 DELIVERED : 5 JANUARY 2005 SUPPLEMENTARY
DECISION : 5 JANUARY 2005 FILE NO/S : CIV 2335 of 2004 BETWEEN : DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
- Applicant
AND
BENNETT & CO (A FIRM)
Respondent
Catchwords:
Practice and procedure - Application for stay of execution pending appeal - Solicitors injuncted from acting - Imminent hearings of appeals against previous decisions - Balance of convenience
Legislation:
Nil
(Page 2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Mr M Mischin
Respondent : Mr M L Bennett & Mr S K Shepherd
Solicitors:
Applicant : State Director of Public Prosecutions
Respondent : Bennett & Co
Case(s) referred to in judgment(s):
Ardrey v Bartlett & Ors [2004] WASCA 256
Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308
Case(s) also cited:
Nil
(Page 3)
1 ROBERTS-SMITH J: In relation to the respondent's application for an order staying the execution of judgment following the delivery of my reasons for decision this afternoon in this matter, I accept the broad statement of principles applicable to such an application as set out by Murray J in Ardrey v Bartlett& Ors [2004] WASCA 256 specifically at [21] where his Honour there refers to the way in which the principles were distilled by Parker J in Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308 at [9].
2 What does appear from that distillation is that a stay of execution pending appeal will ordinarily not be readily granted, the first principle being that the successful litigant at first instance will ordinarily be entitled to enforce the judgment pending the determination of any appeal. In similar vein, the second bullet point there sets out notes that it is for the applicant for a stay to move the Court to a favourable exercise of its discretion, and I emphasise that it is a discretionary order which is sought.
3 The difficulty upon which the respondent relies in this application as being sufficient either by itself or in the context of the matter generally as sufficient to justify a stay is the imminence first of all and primarily of the appeals against decisions made by me in matters numbered FUL 137 of 2004 and FUL 136 of 2004 which are presently listed for hearing before the Court of Appeal on 7 February 2005. I understand from Mr Bennett's submissions that the respondent would be prepared today to give an undertaking to use its best endeavours at least to have an appeal against my decision today lodged and listed for hearing so as to be heard together with those extant appeals.
4 The problem therefore, as I say, upon which the respondent principally relies, is that if my order stands and operates with effect from today, then the likelihood (as I apprehend it to have been put to me) that other solicitors can be adequately briefed to appear on the appeals would not be one which would be readily met.
5 As against that, Mr Mischin submits that the situation arises out of the circumstances in which the respondents became aware of the confidential information the subject of the reasons for decision and the consequent conduct of the solicitors continuing to act in those circumstances. He submits that in the circumstances any adjournment of the appeals, were that to be sought, would first of all not be opposed by the DPP and, secondly and in any event, would be merely the result of the position taken by the respondent solicitors.
(Page 4)
6 So far as the question whether or not the effectiveness or implementation of the judgment would create practical difficulties in respect of the relief which might be granted on appeal is concerned and whether or not, looked at in a particular way, a stay is necessary to preserve the integrity of the litigation pending appeal and enable the respondent solicitors to conduct the extant appeals on behalf of Centurion, is concerned, it is perhaps not surprisingly the case that no particular ground of appeal against my decision today has been foreshadowed.
7 Nonetheless, in relation to that, as Mr Bennett points out, my reasons today are to some extent based upon earlier findings in judgments which are the subject of the appeals listed for 7 February.
8 It seems to me the situation is one of some difficulty but the ultimate consideration as I apprehend it, is that having regard to the principles referred to by Murray J, the making of a stay order in the present circumstances would defeat the rationale and purpose of the reasons for my reaching the conclusion I did in the judgment delivered today.
9 On the other hand, so far as the position of the parties and the balance of convenience - or perhaps to put it more accurately - the balance of disadvantage or detriment is concerned, the interests of both Centurion and the respondent solicitors can be accommodated should they consider it necessary by an application for an adjournment of the appeals, which adjournment or which application, as I have said, I am told would not be opposed by the Director.
10 Under those circumstances and having regard to the considerations which I have briefly mentioned, albeit in no detail, I am not disposed to exercise my discretion to order a stay of the judgment today.
11 Mr Bennett has further submitted, however, that if there not be a stay there should be some modification of the orders sought in the applicant's notice of originating motion and I am prepared to accommodate his submissions in relation to that and I will hear counsel further on the specific wording to be added.
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