S v State of New South Wales (No 5)

In *S v State of New South Wales (No 5)*, Macfarlan JA of the Supreme Court of New South Wales considered an application by the applicant for a stay of judgment pending an application to the High Court of Australia for special leave to appeal. The core of the dispute revolved around the risk that the judgment creditor might be unable to provide restitution should the applicant succeed in the High Court after the judgment had been satisfied.

The primary legal issue before the Court was whether to grant a stay of the judgment. This required the Court to assess the likelihood of the applicant obtaining special leave to appeal to the High Court and, crucially, the potential prejudice to the applicant if a stay were not granted, particularly in light of the judgment creditor's capacity to make restitution.

Macfarlan JA applied the principles governing the grant of a stay of execution pending an application for special leave to appeal. His Honour considered the strength of the grounds for seeking special leave, the potential for the applicant to suffer irreparable harm if the stay was refused, and the balance of convenience between the parties. The Court's reasoning focused on the risk that the judgment creditor might be unable to repay the judgment sum if the appeal were successful, thereby causing significant detriment to the applicant.

The Court ordered that the judgment be stayed on terms that the applicant provide security for the judgment debt.