Proietti, In the matter of an application for leave to issue or file

The applicant, Philip Proietti, sought leave from the High Court of Australia to issue or file a further application for a stay of orders. This application followed the dismissal of his previous stay application by Gageler J. The underlying dispute concerned orders made by Kunc J in the Supreme Court of New South Wales, which included the appointment of trustees for the sale of property owned by Mr Proietti and his brother, and subsequent dismissal of Mr Proietti's appeal by the Court of Appeal of New South Wales.

The primary legal issue before the High Court was whether Mr Proietti should be granted leave to file a second application seeking a stay of the orders made by the New South Wales courts. This required the court to consider the criteria for granting a stay pending an application for special leave to appeal, particularly the requirement for "exceptional circumstances" and substantial prospects of success in the special leave application. The court also had to determine if any new circumstances had arisen since the dismissal of the first stay application that would warrant granting leave to file a further application.

The court reasoned that the power to grant a stay to preserve the subject-matter of litigation pending an application for special leave to appeal is a discretionary power that requires exceptional circumstances, including substantial prospects of the grant of special leave. The court found that Mr Proietti's application for special leave to appeal did not have realistic prospects of success, a conclusion consistent with the reasoning of Macfarlan JA in dismissing a prior stay application. As Mr Proietti did not identify any relevant changed circumstances, and his special leave application continued to have poor prospects, the court determined that there was no basis to grant a further stay, and it would be futile to grant leave to file the second stay application.

Consequently, the application filed on 22 December 2022 for leave to issue or file was dismissed without listing for hearing, pursuant to Rule 13.03.1 of the High Court Rules.