Halabi v Westpac Banking Corporation

This matter concerned an application for special leave to appeal to the High Court of Australia, brought by Naji Halabi against Westpac Banking Corporation. The dispute arose from divergent approaches taken by the judges of the Court of Appeal of New South Wales concerning a question of public importance.

The legal issues before the High Court were twofold: first, the precise content of a principal rule as restated by the Court of Appeal in *Smith v Selwyn*; and second, whether the courts of New South Wales possessed the power to effectively abolish this principle.

The applicant argued that special leave was warranted due to the differing reasoning of the Court of Appeal judges. The President, Mr Justice Kirby, concluded that a settled rule would have dictated a stay in the present circumstances unless the court had the power to abrogate or modify it, and that it was appropriate to do so because the circumstances giving rise to the rule had disappeared. Mr Justice Samuels considered it appropriate to modify the principle so it would be spent upon the institution of criminal proceedings, even if not completed. In contrast, Mr Justice McHugh accepted that a court could not refuse to apply a settled principle to situations it had previously covered simply due to disapproval, but his reasoning differed from the President and Mr Justice Samuels.