Fitzgerald v Deloitte Services Pty Ltd (No 2)

[2017] NSWCA 152

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Fitzgerald v Deloitte Services Pty Ltd (No 2) [2017] NSWCA 152

Hearing dates:

22 June 2017

Decision date:

22 June 2017

Before:

Payne JA

Decision:

(1) the application for a stay is refused.
(2) the applicant for a stay pay the respondent’s costs of the application for a stay as agreed or assessed.

Catchwords:

PRACTICE AND PROCEDURE – application for stay pending special leave to appeal to the High Court – Burgundy Royale test – stay refused

Legislation Cited:

Competition and Consumer Act 2010 (Cth), Schedule 2 Australian Consumer Law, ss 18, 236

Cases Cited:

Fitzgerald v Deloitte Services Pty Ltd [2017] NSWCA 139
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; [1986] HCA 84
Rinehart v Welker [2012] NSWCA 1

Category:

Procedural and other rulings

Parties:

Kevin Michael Fitzgerald (Appellant)
Deloitte Services Pty Ltd (Respondent)

Representation:

Counsel: No appearance (Appellant)
D Stack (Respondent)

 

Solicitors:

  Bridges Lawyers (Respondent)

File Number(s):

2016/373439

Judgment

[Amended in accordance with the principles in Bar-Mordecai v Rotman [2000] NSWCA 123 at [194]]

1. HIS HONOUR: On 21 June 2017, this Court dismissed an appeal from Mr Fitzgerald from a decision of McDougall J in the Equity Division of the Supreme Court, who determined that the appellant was liable to the respondent in the amount of $3,636,368: Fitzgerald v Deloitte Services Pty Ltd [2017] NSWCA 139. In what follows familiarity with the Court’s principal judgment is assumed.

2. The history of this matter is as follows. At the conclusion of the Court of Appeal’s hearing of this matter on 29 May 2017, Mr Fitzgerald, who was appearing for himself, asked the Court for a stay of the proceedings. He was informed by the Chief Justice that the application for a stay was premature and could be renewed if necessary when judgment was handed down.

3. On 21 June 2017, when the decision was handed down, Mr Makkar, who informed the Court that he was a non-legally qualified employee of the appellant, appeared by leave for the appellant. Mr Makkar applied for a stay of the orders of both this Court and McDougall J.  Mr Makkar said from the bar table that the appellant was overseas. Given that the Court was about to embark upon a contested appeal hearing on 21 June 2017, I informed Mr Makkar that the stay application was stood over until 2pm today, 22 June 2017, before me and that he should check the Court listings for which courtroom the case would be heard.  

4. Electronic communication of today’s hearing was effected upon the appellant at his electronic address for service, although no response was received from him. Mr Makkar did not appear today. The matter was called 3 times outside the Court today but there was no appearance on behalf of the appellant.

5. I had proposed to allow Mr Makkar leave to appear today for the limited purpose of seeking a stay. Mr Stack of…