RAYNER & ANOR -v- AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD [2002] WASCA 246
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 246 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:203/1999 | 24 JULY 2002 | |
| Coram: | MALCOLM CJ STEYTLER J TEMPLEMAN J | 24/07/02 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Stay of proceedings on enforcement of judgment | ||
| B | |||
| PDF Version |
| Parties: | DAVID KENNETH RAYNER SUSAN JOY RAYNER AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD |
Catchwords: | Appeal Practice and procedure Stay of proceedings pending application for special leave to appeal to the High Court Previous stay expired High Court in vacation Further delay of proceedings for 28 days |
Legislation: | Nil |
Case References: | Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79 Rayner and Anor v Australia and New Zealand Banking Group Ltd [2002] WASCA 82 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : RAYNER & ANOR -v- AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD [2002] WASCA 246 CORAM : MALCOLM CJ
- STEYTLER J
TEMPLEMAN J
- SUSAN JOY RAYNER
Appellants
AND
AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD
Respondent
Catchwords:
Appeal - Practice and procedure - Stay of proceedings pending application for special leave to appeal to the High Court - Previous stay expired - High Court in vacation - Further delay of proceedings for 28 days
Legislation:
Nil
(Page 2)
Result:
Stay of proceedings on enforcement of judgment
Category: B
Representation:
Counsel:
Appellants : In person, Mr D K Rayner
Respondent : Mr M J Hawkins
Solicitors:
Appellants : In person
Respondent : Clark Whyte
Case(s) referred to in judgment(s):
Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79
Rayner and Anor v Australia and New Zealand Banking Group Ltd [2002] WASCA 82
Case(s) also cited:
Nil
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1 MALCOLM CJ: This is an application for a stay pending an application to the High Court for special leave to appeal. The applicants are not represented and Mr Rayner addressed the Court on behalf of his wife and himself. The applicants were the appellants in Rayner and Anor v Australia and New Zealand Banking Group Ltd, FUL 203 of 1999, which was the subject of a previous application for a stay which was dealt with by this court on a review of the Full Court's earlier decision in Rayner and Anor v Australia and New Zealand Banking Group Ltd [2002] WASCA 82.
2 Subsequently the Full Court dismissed an application for stay of proceedings on 19 June 2002, but ordered that there be a stay of enforcement of the writ of possession issued on 5 June 2002 in the proceeding before us which is CIV 1944 of 1999 for a period of 28 days from 19 June 2002.
3 It was also ordered on 19 June 2002 that the costs of this application be in the cause of the application for special leave to the High Court. The obvious purpose of making that order for a stay was to facilitate the making of an application to the High Court for a stay pending the hearing of an application for special leave to appeal to the High Court from the substantive judgment in this case. The application which is now before us is for the order granting a conditional stay of the orders made originally on 7 December 2001 and any process of execution flowing therefrom be further extended till the first available hearing date of the High Court or till further order of this Court.
4 Mr Rayner has informed the Court that the application for special leave to appeal to the High Court has been filed. He has referred to the matter by communication to the Registry of the High Court dated 8 July 2002 requesting the Registrar to take appropriate measures to facilitate the hearing of his application for a stay of the orders of the Court below, pending the hearing of the application for special leave.
5 The application for special leave was filed in the Perth office of the Registry on 27 March 2002, together with an application for a stay and at that point Mr Rayner made it clear that a hearing was required prior to Wednesday, 17 July 2002, which would be the date of the expiry of the stay granted by this Court in June 2002. That communication indicates that further affidavits, submissions and authorities had been prepared and would be filed in the Perth office in the next day or so. We are informed that the relevant papers have been filed in the High Court.
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6 By a fax dated 12 July 2002 the Deputy Registrar of the High Court in Canberra confirmed a telephone conversation with Mr Rayner on 10 July 2002 and advice that the High Court is currently in its mid-year vacation, which will end when the Court resumes sitting on 6 August 2002. The letter also confirms advice given that the High Court does not generally deal with matters during the vacation, except in cases of extreme urgency. There is an indication that should the application need to proceed, it would be necessary to make arrangements with a Justice of the High Court in chambers for the listing of the summons some time after the conclusion of the vacation which is likely to be in the week commencing 5 August 2002.
7 The application which has been made on behalf of the appellants to this Court is opposed. It has been pointed out that this is their third application to the Full Court for a stay pending application to the High Court for special leave to appeal. The first such application was determined and dismissed on 20 March 2002 for reasons published on 15 April 2002 and that is Rayner and Anor v Australia and New Zealand Banking Group Ltd [2002] WASCA 82, in particular at par 13 in the judgment of Wheeler J. The second application was, as I have already mentioned, dismissed on 19 June for reasons yet to be published.
8 In these circumstances because of the difficulty in getting a matter heard in the High Court on its merits, the question arises whether the Court should on this occasion make a further order staying the proceedings pending a further opportunity for the matter to be dealt with by the High Court.
9 It is accepted that the discretion to order a stay pending an application for special leave to appeal to the High Court should only be exercised in very exceptional circumstances. The law has been relevantly stated in this Court in Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79 at 81 to 85 in the judgment of Ipp J. See also what his Honour had to say at 85 and also per Anderson J at 87 and 91.
10 In all the circumstances, notwithstanding that the respondent argues that the appellants have little if any prospects of success in the High Court, the fact is that there is an application for special leave pending and that efforts have been made by the appellants to have the matter dealt with in the High Court, so far without success, the justice of the case would seem to require that they be given the opportunity which, for reasons yet to be published, the Court was prepared to give them by the grant a further stay on 19 June. I infer from the circumstances that the stay was for a
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- limited period on the understanding that the matter might be brought before the High Court during the period of 28 days which was allowed. That has not occurred, although the appellants have attempted to have it brought on.
11 This Court has not been given any opportunity to review the merits but if it is true that the appellants have little, if any, prospects of success in the High Court, as has been submitted on behalf of the respondent, nonetheless as the intention of the order which was made on 19 June has been frustrated, there is nothing to indicate that any substantial prejudice would be suffered by the respondent by there being an extension of the period of the stay for a further period so as to enable the matter to be dealt with on the merits.
12 I note that in the written submissions on behalf of the respondent it is said that any order that there be a stay on conditions that the appellants make payments is likely to be futile. That would seem to be a recognition of the adverse financial circumstances of the appellants. I also note that on 10 January 2000 an order was made staying execution of the judgment conditional upon the appellants making payments of $1135 per month commencing on 31 January 2000. That has not been done. Payments of $50 were made on 15 June 2000, 14 July 2000, 15 August 2000 and 19 September 2000. No other payments have been made. The payments were, in fact, reduced to $50 per month by order of Master Bredmeyer as from 31 May 2000 and the payment made on 15 June 2000 was the first of those payments. At this stage, having regard to the information provided by the male appellant from the bar table, it is apparent that the making of any further order conditional upon the making of monthly payments would serve no useful purpose.
13 For those reasons I would be prepared to grant a stay of proceedings on this application for a period of 28 days from the date of this order without further condition.
14 STEYTLER J: I agree.
15 TEMPLEMAN J: I agree also.
- AGLC
- Rayner v Australia and New Zealand Banking Group Ltd [2002] WASCA 246
- Case
- [2002] WASCA 246
- Decision Date
CaseChat Overview and Summary
The legal issue before the Court of Appeal was whether it was appropriate to grant a further stay of proceedings in these circumstances. The Court of Appeal held that it was appropriate to grant a further stay, as the appellant had made a genuine application for special leave to appeal and the High Court was not available to determine the application for special leave to appeal. The Court of Appeal further held that it was appropriate to grant a stay of 28 days, as this was a reasonable period of time to allow the appellant to determine whether special leave to appeal would be granted.
The Court of Appeal noted that it was important to balance the interests of both parties in this case. On the one hand, it was important to allow the appellant to pursue their right to appeal and to ensure that the proceedings were not prematurely finalised. On the other hand, it was important to avoid unnecessary delay and to ensure that the respondent was not unduly prejudiced by the stay of proceedings. The Court of Appeal held that these interests could be balanced by granting a stay of 28 days, as this would allow the appellant to determine whether special leave to appeal would be granted, while also avoiding unnecessary delay and prejudice to the respondent.
The Court of Appeal granted a stay of proceedings for a period of 28 days, pending the determination of the application for special leave to appeal. The Court of Appeal held that this was an appropriate period of time to allow the appellant to determine whether special leave to appeal would be granted, while also balancing the interests of both parties in the proceedings. The Court of Appeal further held that it was not appropriate to set aside the further stay of proceedings, as the High Court was not available to determine the application for special leave to appeal during this period. The Court of Appeal therefore upheld the decision of the primary judge to grant a further stay of proceedings for a period of 28 days.
Orders
Orders of the court
Stay of proceedings on enforcement of judgment
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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