Norilya Minerals Pty Ltd v Adam Jonathon Ireland as Named Executor of the Estate of Dean Edward Ireland [No 3]
[2010] WASC 287
•25 OCTOBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: NORILYA MINERALS PTY LTD -v- ADAM JONATHON IRELAND as Named Executor of the Estate of DEAN EDWARD IRELAND [No 3] [2010] WASC 287
CORAM: LE MIERE J
HEARD: 14 OCTOBER 2010
DELIVERED : 25 OCTOBER 2010
FILE NO/S: CIV 2232 of 1990
Consolidated by Orders dated 28 July 2009
BETWEEN: NORILYA MINERALS PTY LTD
Plaintiff
AND
ADAM JONATHON IRELAND as Named Executor of the Estate of DEAN EDWARD IRELAND
CLARK ERVIN EASTERDAY
LEONARD LANCELOT IRELAND
First DefendantsKAYLENE HOLDINGS PTY LTD
Second DefendantBRENDA ANNE EASTERDAY
Third DefendantWEBGO PTY LTD
Fourth DefendantFIM PTY LTD
Fifth DefendantPAUL CHRISTOPHER IRELAND
Sixth Defendant
FILE NO/S :CIV 2364 of 2007
BETWEEN :NORILYA MINERALS PTY LTD
Plaintiff
AND
CLARK ERVIN EASTERDAY
LEONARD LANCELOT IRELAND
First DefendantsKAYLENE HOLDINGS PTY LTD
Second DefendantBRENDA ANNE EASTERDAY
Third DefendantWEBGO PTY LTD
Fourth DefendantFIM PTY LTD
Fifth DefendantPAUL CHRISTOPHER IRELAND
Sixth Defendant
Catchwords:
Practice and procedure - Application for adjournment of trial pending application for special leave to appeal - Prospects of success of special leave application - Whether refusal of adjournment will cause serious and irremediable loss - Delay
Legislation:
Rules of the Supreme Court 1971 (WA), O 1 r 4B
Result:
Application dismissed
Category: B
Representation:
CIV 2232 of 1990
Consolidated by Orders dated 28 July 2009
Counsel:
Plaintiff: Mr S M Davies SC & Ms J M Hill
First Defendants : Mr J A Thomson
Second Defendant : Mr J A Thomson
Third Defendant : Mr J A Thomson
Fourth Defendant : Mr J A Thomson
Fifth Defendant : Mr J A Thomson
Sixth Defendant : Mr J A Thomson
Solicitors:
Plaintiff: Norton Rose Australia
First Defendants : Bostock & Ryan
Second Defendant : Bostock & Ryan
Third Defendant : Bostock & Ryan
Fourth Defendant : Bostock & Ryan
Fifth Defendant : Bostock & Ryan
Sixth Defendant : Bostock & Ryan
CIV 2364 of 2007
Counsel:
Plaintiff: Mr S M Davies SC & Ms J M Hill
First Defendants : Mr J A Thomson
Second Defendant : Mr J A Thomson
Third Defendant : Mr J A Thomson
Fourth Defendant : Mr J A Thomson
Fifth Defendant : Mr J A Thomson
Sixth Defendant : Mr J A Thomson
Solicitors:
Plaintiff: Norton Rose Australia
First Defendants : Bostock & Ryan
Second Defendant : Bostock & Ryan
Third Defendant : Bostock & Ryan
Fourth Defendant : Bostock & Ryan
Fifth Defendant : Bostock & Ryan
Sixth Defendant : Bostock & Ryan
Case(s) referred to in judgment(s):
Batistatos v Road Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681
Norilya Minerals Pty Ltd v Adam Jonathon Ireland As Named Executor of the Estate of Dean Edward Ireland [2010] WASC 260
Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1991) 65 ALJR 360
Wilson v Metaxas [1989] WAR 285
LE MIERE J: On 3 September 2010 the defendants applied for an order that unless and until the plaintiff pays into court the amount due from it to the defendants pursuant to the orders of the Court of Criminal Appeal these actions be stayed or alternatively that unless and until the plaintiff files an affidavit disclosing that it has sufficient assets from which to pay the amounts due to the defendants pursuant to the orders of the Court of Criminal Appeal then these actions be stayed. On 24 September 2010 I dismissed the defendants' application: Norilya Minerals Pty Ltd v Adam Jonathon Ireland As Named Executor of the Estate of Dean Edward Ireland [2010] WASC 260. The defendants applied to the Court of Appeal for leave to appeal. On 12 October 2010 the Court of Appeal refused leave to appeal and stated that it would publish written reasons at a later date. The trial of these actions is listed for hearing on various days commencing on 25 October 2010 and concluding on 11 March 2011.
The defendants have instructed their solicitors to apply to the High Court for special leave to appeal from the judgment of the Court of Appeal and an interim stay of these actions until their determination of the application for special leave to appeal.
On 14 October 2010 the defendants applied for an adjournment of the trial of this action pending their application to the High Court for special leave to appeal. I dismissed the application. These are my reasons for doing so.
Jurisdiction to stay action pending special leave application
Pending the hearing of a special leave application, the High Court has an inherent jurisdiction to order a stay: Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681. As well as the High Court, the court whose decision is challenged may stay the proceedings. There are conflicting considerations over whether an application for a stay should be determined by the High Court or by the body whose judgment is challenged. On the one hand, the High Court is better able to judge whether there is a substantial prospect of a grant of special leave and how long it is likely to be before the application is heard. On the other hand, in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd Brennan J said that an application to stay should first be made to the court below because that is the court in which the matter is pending and which is familiar with the matter (684).
A stay pending an application for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted: Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd, (684) (Brennan J).
The defendants' application is for an adjournment of the trial pending the determination of their application for special leave to appeal. However, in substance the application is for a stay of the actions pending the determination of the application for special leave to appeal. Similar considerations should apply to this application as would apply to an application for a stay of the actions pending the determination of the special leave application.
The court should only grant the adjournment sought if exceptional circumstances are shown. Although other factors are relevant, the most important questions are:
•the defendants chances of ultimate success in the High Court; and
•whether the defendants will suffer serious and irremediable loss if an adjournment is not ordered.
Prospects of success
The Court of Appeal has not yet delivered its reasons for decision. The defendants' draft grounds of appeal are in general terms and do not identify the alleged error of the Court of Appeal other than to say that the Court of Appeal erred in holding that it was not an abuse of the court's processes for the plaintiff to maintain the present actions against the defendants and that the Court of Appeal should have held that it was an abuse of the court's processes for the plaintiff to maintain these actions against the defendants unless and until the plaintiff paid into court the amount due from it to the defendants pursuant to the judgments of the Court of Criminal Appeal or alternatively unless and until the plaintiff filed an affidavit disclosing that it had sufficient assets from which to pay the amount due to the defendants pursuant to the Court of Criminal Appeal orders (CCA orders).
In those circumstances it is not possible for me to undertake an analysis of the proposed grounds of appeal so as to assess the defendants' prospects of success in obtaining special leave. However, three matters are relevant to the defendants' prospects of success and as a result of which the defendants face a difficult task in obtaining special leave. First, the decision sought to be appealed from is an interlocutory judgment. Furthermore, the decision is a discretionary or evaluative decision: Batistatos v Road Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256, [150] (Kirby J). Secondly, the defendants have been unsuccessful all the way along the line; initially at first instance and unanimously before the Court of Appeal: see Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1991) 65 ALJR 360, 361 (Mason CJ). Thirdly, the Court of Appeal refused leave to appeal. In general, before the Court of Appeal grants leave to appeal it must be satisfied that the decision below is wrong or attended with sufficient doubt to justify the grant of leave and that a substantial injustice would be done if it remains unreversed: Wilson v Metaxas [1989] WAR 285, 294.
Serious and irremediable loss
Counsel for the defendants submitted that an adjournment of the trial should be granted so as to prevent loss of the subject matter of the special leave application. Counsel submitted that if the High Court granted special leave and allowed the appeal, a stay in the terms sought by the defendants would be of no practical effect or utility if the trial of the actions is not adjourned. The stated purpose of the defendants' stay application of 3 September 2010 is to ensure that if they are successful in resisting the claims made by the plaintiff, and obtain judgment, they will not have litigated in vain. In practice, the stay order sought by the defendants would be of no practical use or effect if it was made after judgment had been entered or reasons for decision delivered in these actions. If the stay was granted at any time before the delivery of reasons for judgment in the actions then the actions would be stayed unless and until the plaintiff paid into court the amount due to the defendants under the CCA orders. Counsel for the defendants accepted that in that event the principal prejudice to the defendants from the actions proceeding pending the determination of their application for special leave would be averted.
Counsel for the defendants submitted that the defendants would still suffer prejudice in the form of incurring costs in conducting the trial. If the stay order sought by the defendants is made and the plaintiff does not pay the required amount into court then the defendants might apply for the actions to be dismissed or permanently stayed and for the plaintiff to pay their costs. The plaintiff has been required to give security for the defendants' costs, so the defendants' costs would be met.
Other considerations
An adjournment of the trial will prejudice the plaintiff. If the trial is adjourned it will not be able to proceed until mid‑2011 at the earliest. Some of the plaintiff's witnesses are elderly. Furthermore, the adjournment of a 53 day trial six working days before it is due to commence will cause the plaintiff to incur additional costs.
Order 1 r 4B of the Rules of the Supreme Court 1971 (WA) expressly states that the processes and procedures of the court are to have among their objectives the efficient disposal of its business and the efficient use of available judicial and administrative resources. The rule recognises that delay is undesirable and that delay has deleterious effects, not only upon the party to the proceedings, but to other litigants. The court has set aside 53 hearing days for the trial of this action. If it is adjourned a significant number of those hearing days will be lost.
The defendants' application for a stay was made on 3 September 2010. At that time the actions had been proceeding for many years and trial dates had been fixed. There is no satisfactory explanation for why the defendants did not make their stay application earlier. It appears that they did not do so because they and their then legal representatives had not appreciated that the application could or should be made. The delay in bringing the stay application has had a knock on effect on the present application for an adjournment of the trial being brought six working days before the trial is now due to commence and, indeed, after the time at which the trial was originally scheduled to commence on 11 October 2010. That commencement date was adjourned to enable the defendants to seek leave to appeal to the Court of Appeal from the dismissal of the stay application of 3 September 2010. The defendants' delay in bringing their stay application of 3 September 2010 weighs against the defendants' application for an adjournment.
Conclusion
Having regard to what I have said, I do not regard this case as one of exceptional circumstances such as to justify the grant of an adjournment on the eve of the trial pending the determination of the defendants' application for special leave to appeal to the High Court. The defendants' application for special leave to appeal is likely to be determined in February 2011 if not earlier. That is, the application for special leave to appeal is likely to be determined before the trial of these actions is concluded. If special leave is refused then there is no reason why the trial should not continue and be completed. If special leave is granted then the High Court may make an order staying the trial. Alternatively, the defendants may apply to this court to adjourn the trial until determination of the High Court appeal. Alternatively, this court might complete the trial and then stay the actions, or not deliver reasons for judgment, until determination of the High Court appeal. In any of those events a successful appeal to the High Court would not be futile and the defendants would not have suffered serious and irremediable harm.
Counsel for the defendants raised the possibility that the defendants may submit that there is no case to answer at the close of the plaintiff's case. If the defendants decide to submit no case then they may at that time apply for an adjournment of the proceedings pending the outcome of the special leave application. Of course, any such application would have to be determined having regard to all of the circumstances as they then existed.
The application for an adjournment is refused.
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