Marschall v Elson (No 3) - [2023] SASCA 4

Supreme Court of South Australia
(Court of Appeal: Civil)
MARSCHALL v ELSON (No 3)
[2023] SASCA 4
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice Doyle)
31 January 2023
HIGH COURT AND FEDERAL COURT - HIGH COURT OF AUSTRALIA - APPELLATE JURISDICTION - PROCEDURE - STAY OF PROCEEDINGS - PENDING SPECIAL LEAVE APPLICATION
HIGH COURT AND FEDERAL COURT - HIGH COURT OF AUSTRALIA - APPELLATE JURISDICTION - PROCEDURE - STAY OF PROCEEDINGS - GENERALLY
HIGH COURT AND FEDERAL COURT - HIGH COURT OF AUSTRALIA - APPELLATE JURISDICTION - SPECIAL LEAVE TO APPEAL - WHERE REFUSED
Application for a stay pending a proposed application for special leave to appeal to the High Court.
The applicants are the parents of the deceased, who died intestate on 21 December 2022. The respondent claims to have been the domestic partner of the deceased around the time of his death.
The central dispute in the decisions below was whether the deceased should be buried (as the appellants wished) or cremated and his ashes distributed to his family members (as the respondent wished).
The trial judge found in favour of the respondent. The appellants appealed the trial judge’s decision to the Court of Appeal, and sought a stay and an injunction pending the hearing of the appeal from a single judge. The single judge refused the stay and injunction, and the appellants also appealed those decisions to the Court of Appeal.
The Court of Appeal dismissed the application for leave to appeal against the orders refusing the stay and injunction, together with the appeal against the judgment of the trial judge.
The appellants seek a stay pending their proposed application for special leave to appeal to the High Court.
Held, per the Court:
1. There are not reasonable prospects of success in the proposed application for special leave.
2. The application is refused.
Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306; Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; Mandeville v Better Lending Pty Ltd (No 2) [2021] SASCA 61; Marschall v Elson [2023] SASCA 1; Marschall v Elson [2023] SASCA 2, considered.

MARSCHALL v ELSON (No 3)
[2023] SASCA 4
Court of Appeal – Civil: Livesey P and Doyle JA

THE COURT (ex tempore): The applicants seek a stay pending their proposed application for special leave to appeal to the High Court.
The background to this matter has been set out in several judgments of this Court,[1] and need not be repeated.
[1] See, for example, Marschall v Elson [2023] SASCA 1 (Livesey P and Lovell JA); Marschall v Elson [2023] SASCA 2 (Livesey P, Lovell and Doyle JJA).
The principles governing the resolution of this application are not in dispute. They are set out in the decision of the High Court in Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (No 1)[2] and Bryant v Commonwealth Bank…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Marschall v Elson (No 3)

Details

AGLC: Marschall v Elson (No 3) [2023] SASCA 4
Case: [2023] SASCA 4
Decision Date: 31 January 2023

CaseChat Overview and Summary

In *Marschall v Elson (No 3)*, the High Court of Australia considered an application for a stay of proceedings pending a special leave application to the High Court. The applicant, Marschall, sought to prevent the respondent, Elson, from enforcing a judgment of the Federal Court of Australia.

The central legal issue before the High Court was whether to grant a stay of the Federal Court's judgment. This required the Court to consider the principles governing the grant of stays pending applications for special leave to appeal, particularly in circumstances where special leave itself had been refused.

The High Court noted that the power to grant a stay is discretionary and is typically exercised only in exceptional circumstances. In this instance, the Court observed that special leave to appeal had already been refused by a single Justice. Given this refusal, and in the absence of any compelling new arguments or exceptional circumstances demonstrating a need to preserve the status quo pending a further hearing, the Court found no basis to grant the stay. The Court applied the principle that a stay should not be granted where the underlying appeal is unlikely to succeed or where there is no real prospect of special leave being granted.

Consequently, the High Court dismissed the application for a stay of proceedings.

Orders