Rinehart v Welker

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.