Itek Graphix Pty Ltd v Elliott [No 2]

The Supreme Court of New South Wales, constituted by Spigelman CJ, Sheller JA, and Ipp AJA, considered an application by Itek Graphix Pty Ltd (the appellant) to re-open an appeal and for a temporary stay of proceedings pending an application for special leave to appeal to the High Court. The dispute arose from a prior decision of the court, and the application concerned the repayment of funds paid by the appellant under a previous stay order.

The primary legal issues before the court were whether it had the power to re-open its own appeal decision and, if so, whether it should exercise that power. The court also had to determine whether to grant a temporary stay of proceedings to allow the appellant to pursue special leave to appeal to the High Court, and in relation to the repayment of funds previously paid under a stay order.

The court determined that it possessed the power to re-open an appeal in exceptional circumstances, citing the principles established in *Ullmann v Jowett*. However, the court found that the appellant had not demonstrated the necessary exceptional circumstances to justify re-opening the appeal. While acknowledging the appellant's intention to seek special leave to appeal to the High Court, the court concluded that this alone did not warrant a stay of the original orders or the re-opening of the appeal. The court also addressed the repayment of the $100,000 paid by the appellant, ordering its repayment with interest.

Consequently, the court ordered the respondent to repay the appellant the sum of $100,000, with interest calculated according to Schedule J of the Supreme Court Rules from 23 March 2001. The appellant was ordered to pay the respondent's costs of the application.