1. Order 1 made by the Court of Appeal in these proceedings on 19 December 2011 be stayed up to and including 3 February 2012.
2. The stay in Order 1 shall not extend to a report of the proceedings in this Court on 19 and 21 December 2011 or 13 January 2012 excluding any reference to the provisions of the Deed between the first, second and third respondents and the applicants and various other parties dated 7 August 2006 and to the affidavit of John Dalzell sworn 6 October 2011 except to the extent that it is necessary for that material to be referred to in the judgment on this application.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
APPEAL - precedent - power to depart from previous decision of Court - test in Gett v Tabet - altering practice as distinct from altering a decision on a question of law - whether Court of Appeal practice should be altered when inconsistent with practice of the High Court and other intermediate Australian courts PROCEDURE - civil - judgments and orders - stay - pending special leave to appeal to the High Court - test in John Fairfax & Sons Ltd v Kelly (No 2) (1987) 8 NSWLR 510 conflicts with test in Jennings construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84 - whether exceptional circumstances must be shown before a stay is warranted PROCEDURE - civil - judgments and orders - stay - pending special leave to appeal to the High Court - whether substantial prospects of obtaining special leave - whether short stay appropriate even if no substantial prospects of obtaining special leave
[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 Rinehart v Welker
Sign in free to access the full text
Details
AGLC
Rinehart v Welker [2012] NSWCA 1
Case
[2012] NSWCA 1
Decision Date
CaseChat Overview and Summary
The parties in this matter were Rinehart and Welker. The dispute concerned an application for a stay of a Court of Appeal order pending special leave to appeal to the High Court. The case was heard by Bathurst CJ, Beazley and McColl JJA of the Court of Appeal.
The court was required to determine whether to grant a stay of its previous order. This involved considering the test for granting a stay pending special leave to appeal to the High Court, specifically addressing a conflict between the test in *John Fairfax & Sons Ltd v Kelly (No 2)* and that in *Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1)*. The court also had to consider whether exceptional circumstances were necessary for a stay, and whether a short stay might be appropriate even without substantial prospects of obtaining special leave.
The court applied the principles established in *Gett v Tabet* regarding the power of the Court of Appeal to depart from its previous decisions, distinguishing between altering practice and altering a decision on a question of law. It also considered the test for granting a stay pending special leave to appeal, noting that while substantial prospects of obtaining special leave are a significant factor, a short stay might be granted in certain circumstances even if those prospects are not strong. The court acknowledged the conflict between the tests in *John Fairfax* and *Jennings Construction* and the need for consistency with High Court and other intermediate Australian courts' practices.
The court ordered that the Court of Appeal's order of 19 December 2011 be stayed up to and including 3 February 2012. This stay, however, did not extend to reports of proceedings on specific dates, with exceptions for references to a particular Deed and affidavit, unless necessary for the judgment on the stay application.
Orders
Orders of the court
1. Order 1 made by the Court of Appeal in these proceedings on 19 December 2011 be stayed up to and including 3 February 2012.
2. The stay in Order 1 shall not extend to a report of the proceedings in this Court on 19 and 21 December 2011 or 13 January 2012 excluding any reference to the provisions of the Deed between the first, second and third respondents and the applicants and various other parties dated 7 August 2006 and to the affidavit of John Dalzell sworn 6 October 2011 except to the extent that it is necessary for that material to be referred to in the judgment on this application.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]