Temwood Holdings Pty Ltd v Western Australian Planning Commission - [2004] WASCA 65

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

TITLE OF COURT : THE FULL COURT (WA)

CITATION: TEMWOOD HOLDINGS PTY LTD -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2004] WASCA 65

CORAM: WHEELER J
WALLWORK AJ

HEARD: 12 DECEMBER 2003

DELIVERED : 7 APRIL 2004

FILE NO/S: FUL 121 of 2001

BETWEEN: TEMWOOD HOLDINGS PTY LTD
Appellant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Turns on own facts

Legislation:

Land Administration Act 1997, s 195

Metropolitan Region Town Planning Scheme Act 1959 (WA), s 36
Town Planning and Development Act (WA), s 11

Transfer of Land Act 1893 (WA), s 136C, s 136F

Result:

Application allowed
Stay granted

Category: B

Representation:

Counsel:

Appellant: Mr J C Giles
Respondent: Ms C J Thatcher

Solicitors:

Appellant: Solomon Brothers
Respondent: State Crown Solicitor

Case(s) referred to in judgment(s):

Federal Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220
Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593
McBride v Sandland (No 2) (1918) 25 CLR 369
Nykredit Mortgage Bank plc v Edward Erdmann Group Ltd (No 2) [1997] 1 WLR 1627
Provident Capital Ltd v Hazaran Pty Ltd [2002] NSWSC 825
Robinswood Pty Ltd v Deputy Commissioner of Taxation for the Commonwealth of Australia [2003] WASCA 325
Smith v New South Wales Bar Association (1991) 66 ALJR 219
Software Engineers Australia (NSW) Pty Ltd v Bonket Pty Ltd [2002] FCA 1168
Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd (1992) 34 FCR 287
Temwood Holdings Pty Ltd v Western Australian Planning Commission & Anor (No 2) (2002) 25 WAR 484

Case(s) also cited:

Advance Building Systems Pty Ltd v Ramset Fasteners (Aust) Pty Ltd (1997) 145 ALR 121
Anayan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 196 ALR 332
Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460
Cliffs Robe River & Associates v Drabo Pty Ltd [1988] WAR 322
CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345
Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79
Henry v Henry (1996) 185 CLR 571
Hughes Aircraft Systems International v Air Services Australia (1997) 146 ALR 1
Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681
Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333
National Benzole Co Ltd v Gooch [1961] 1 WLR 1489
Raveh v Official Receiver of the State of Israel [2002] WASCA 27
Re Freight Victoria Ltd (2002) ATPR 41-884
Re Marks & Federated Iron Makers' Association; ex parte Australian Building Construction Employees & Builders' Labourers' Federation (1981) 34 ALR 208
Roberts v Roberts (1994) 12 WAR 505
Scott v Handley (1999) 58 ALD 373
Temwood Holdings Pty Ltd v Western Australian Planning Commission (2001) 25 WAR 311

WHEELER J: I have had the advantage of reading in draft the reasons for decision of Wallwork AJ. I gratefully adopt his Honour's summary of these somewhat complex proceedings, and I am in agreement with his Honour's reasons. There are, however, some further observations which I would make.
The concept of a "stay" of the decision of the Full Court is an odd one, in some respects. The principal orders of the Full Court were that:-
•The appeals of Temwood to the Town Planning Appeal Tribunal be allowed.
•Certain of the conditions imposed upon the subdivision approval be declared void.
•In lieu thereof certain conditions be imposed by consent, they being conditions that a public access easement be created by Deed at Temwood's cost pursuant to s 195 and s 196 of the Land Administration Act 1997, in favour of the City of Rockingham, to enable access in perpetuity by the general public over all of the foreshore land [which land was previously the subject of the conditions declared to be void].
We were informed that the easements have been created and annotated on the deposited plan pursuant to the Transfer of Land Act.
It appears that the "stay" originally sought by the Commission (never, as I understand it, articulated in the form of a proposed order) was aimed principally at the declaration in relation to the conditions. The question of whether one could "stay" such an order, so that in effect the declaration became a prospective or conditional one, was not argued before us and I assume that an order of that kind may be made. If made, its practical effect presumably would be to continue in existence the condition requiring the transfer of the land free of cost.
As Wallwork AJ has described, proceedings took a different course and, rather than any stay being granted, Temwood gave the undertakings described by his Honour and consented to the easement condition to which I have referred.
As a matter of chronology, it is clear that the development application to carry out development on the foreshore land had been on foot for some considerable time at the time at which Temwood gave the undertakings which were given in Full Court. It seems clear that no express reference was made, in any of the negotiations between the parties which led to that undertaking, to the fate of the development application and to the possibility of any subsequent claim for compensation. The submissions Temwood made before us were to the effect that it had contemplated that its development application would remain on foot and that the undertakings would not prevent it from proceeding with an application for compensation should that development application be refused. That understanding and that view was, it appears, not expressly communicated to either of the respondents, the matter not having been raised by them.
However, considering the whole of the course of the dealings between the parties, it is difficult to see how the undertaking to re-transfer the land if the appeal succeeded could be considered to be consistent with the prosecution of the development application. Should the application succeed, it would permit a development on the land which, if Temwood then undertook that development, would mean that the land could not be re-transferred in anything like its condition at the time of the undertaking. Since the whole point of the respondent's appeal was to ensure that the land in question could be maintained as foreshore land free of development at no cost to the Crown, the purpose of the appeal would be frustrated in respect of the land by the success of the development application and the undertaking of development consequent upon it.
Further, it is difficult to see, as Wallwork AJ has noted, how Temwood's application to develop the land could possibly be seen as consistent with the condition to which Temwood consented requiring the creation of an easement which would permit the general public access in perpetuity over all of the land. Any development by way of building dwellings on the land would prevent public access to that portion of it. It is a curious feature of this case that Temwood has consented to a condition which apparently renders it entirely unable to use the land for the purpose for which it maintains it would wish to use it, but as that matter relates to issues which may well arise in arbitration proceedings in future, it is not appropriate to consider it further at this time.
Of course, as Temwood points out, the development application was in the end refused and, that being so, it is submitted that there is no reason why compensation should not now be assessed. However, that appears to me to be too simplistic a view. The agreement between Temwood and the respondents was, it seems to me, one which was not consistent with any development of the land in the period leading up to the determination of the appeal to the High Court. In my view, it is appropriate during that period therefore to stay proceedings which are based upon the proposition that Temwood did during that period wish to develop the land and should be compensated for its inability to do so.
A further factor which is in my view relevant relates to the long history of proceedings between Temwood and the respondents. It is clear from the history of this appeal in this Court, from associated proceedings arising from the dispute between these parties, and from both the correspondence in the application book and the tenor of the submissions made to us, that these parties are, for whatever reason, unable to agree on almost any issue. There is no reason to believe that arbitration proceedings between them will be other than extremely complex and protracted. Should the respondent's appeal proceed, very considerable amounts of unnecessary work might be carried out in the arbitration in the meantime.
Further, as we were informed subsequent to the hearing of this application, the appeal is in any event listed for hearing in the High Court on 27 April. That is not a very lengthy delay and it seems appropriate to leave Temwood to seek a removal of this stay and a variation of any of its undertakings or conditions at that time if it considers it appropriate to do so.
Finally, I should say that I regret very much the delay between the hearing and judgment in this application. Shortly after the hearing of the application the Full Court delivered judgment in Robinswood Pty Ltd v Deputy Commissioner of Taxation for the Commonwealth of Australia [2003] WASCA 325. Temwood sought the opportunity to make further submissions to us based upon one aspect of the reasons for decision in that matter, contending that it flowed from the observations of the Court in Robinswood that we lacked jurisdiction to grant a stay in the arbitration in any event. Most unfortunately, that letter was not brought to the attention of members of the Court but it appears to have been simply placed on file. It was not discovered until shortly before we proposed to deliver judgment. We then invited the parties to make written submissions in relation to that issue. That caused further delay.
Having read the submissions, it is my view that Temwood's argument in relation to jurisdiction should not now be entertained, no question of jurisdiction having been raised before us at the hearing of the application. Put shortly, it is contended on behalf of Temwood that the Full Court lacks jurisdiction to order a stay of the arbitration proceeding

because to grant a stay in other proceedings would be to make an order in the nature of an injunction restraining them, a course which is precluded by s 24(5) of the Supreme Court Act 1935. It is not, however, contended, as I understand it, that if an application were made in ARB 3 of 2003, also a proceeding pending in this Court, that the Court would lack jurisdiction to stay that proceeding. That is, Temwood's argument which goes to matters of procedure rather than to the merits of the order sought, or to the jurisdiction of this Court, broadly considered.

For the reasons given I would therefore join with Wallwork AJ in ordering that the proceedings in ARB 3 of 2003 be stayed until the determination of the High Court appeal Western Australian Planning Commission v Temwood Holdings Pty Ltd, High Court No P 90 of 2003, or further order.
WALLWORK AJ: On 12 December 2003, this Court heard argument on the respondent's motion that proceedings in ARB 3 of 2003 be stayed pending the determination of an appeal to the High Court from the judgment of the Full Court of Western Australia in Temwood Holdings Pty Ltd v Western Australian Planning Commission & Anor (No 2) (2002) 25 WAR 484.
In that decision, the Full Court had declared void a condition which had been imposed by the respondent ("the Commission") for the approval of three subdivision applications by the appellant ("Temwood") relating to land near the beach to the north of Mandurah in this State.
The condition was that land being part of an area of land owned by the appellant and being a strip along the beach extending 200 metres inland for the whole length of the land fronting the beach, be ceded free of cost to the Crown without any payment of compensation.
Temwood had appealed against this condition being imposed on its applications for subdivision of parts of the relevant land and the Full Court had unanimously held that the condition was beyond power and void. The Court also held that the condition had not been imposed for a valid planning purpose. The reasons for that decision are reported in full in 25 WAR at 484 and following and I will not repeat them here except as is necessary.
Following the decision, the Commission appealed to the High Court. It also applied to the Master in chambers for a stay of proceedings in this Court in the matter ARB 3 of 2003 pending the determination of the special leave application in the High Court. Alternatively it asked for an

order that the proceedings in ARB 3 of 2003 be adjourned sine die pending the determination of the special leave application.

The Master held that there was no real basis upon which rights consequent upon Temwood's successful appeal to the Full Court ought to be denied to it. He noted that certain undertakings had been given consequent to the Full Court decision and there was no suggestion that those undertakings had not been honoured; also that any right to refer matters to arbitration were not the subject of the undertakings which were given at the time of the Full Court decision. The Master's decision was given on 29 July 2003. This motion was filed on behalf of the respondent on 6 November 2003.
There is a dispute in ARB 3 of 2003, the matter which the Commission wants stayed, concerning who should be appointed as arbitrator in the arbitration between the Commission and Temwood. In the arbitration there are two issues raised. Firstly, whether Temwood's development application was made in good faith, and secondly the value of the relevant foreshore reserve.
It is argued on behalf of Temwood that the issues in the arbitration and those in the appeal to the High Court are entirely different; that whereas the arbitration raises the two issues referred to above, the High Court appeal raises the issue as to whether the Full Court decision was correctly decided and consequently whether the condition requiring ceding of the foreshore reserve to the State without compensation was within the Commission's power and if so, whether the condition was a valid exercise of that power.
It is argued on behalf of Temwood that there will be no determination of common facts in the two matters, no duplication of witnesses and no duplication of interlocutory steps. Further, that there is no potential for the High Court and this Court to determine the same issues. Consequently there is no multiplicity of proceedings.
The Full Court handed down its reasons in Temwood (supra) on 1 February 2002. The Commission then indicated an intention to seek a stay of the Full Court's decision. That matter was not finalised until 22 May 2002, when Temwood provided certain undertakings to the Full Court.
In the meantime, on 1 February 2002, the same day as the Court had handed down its reasons, Temwood made a development application to carry out development on the subject land.
On 17 June 2002, the Commission applied for special leave to appeal the Full Court's decision to the High Court. It was following that, and on 26 June 2002, that the Commission refused the development application which had been made on 1 February 2002.
In December 2002, Temwood made a claim for compensation for injurious affection pursuant to s 36 of the Metropolitan Region Town Planning Scheme Act 1959 (WA). By letter dated 18 December 2002, the Commission informed Temwood's solicitors that it did not intend to acquire the land as it did not consider that compensation was payable under s 36(3) of the MRTPS Act because the development application had not been made in good faith.
On 16 April 2003, Temwood applied to the Supreme Court inter alia for an order that "the Hon John Hedigan QC be appointed arbitrator for the arbitration if he is available and willing to so act and if he is not available and willing to act the Hon Andrew Rogers QC be appointed arbitrator for the arbitration if he is available and willing to act". They are the proceedings which are the subject of the present application for a stay in this Court.
As stated above, on 29 July 2003 the Master ordered that the Commission's application for a stay or adjournment be dismissed. He stated that it was preferable in all the circumstances for a decision to be made by the Full Court. That is the reason for the present application.
On 23 October 2003, the High Court granted the Commission special leave to appeal against the Full Court's decision subject to undertakings by the Commission that it would agree to pay Temwood's reasonable costs of the appeal in any event and would not seek to disturb the costs order made in the Full Court. On 11 November 2003, the Commission filed a notice of appeal in the High Court pursuant to the grant of special leave.
In its application for a stay of the arbitration proceedings the Commission accepts that the effect of its application is to stay execution of the orders made pursuant to the Full Court's decision pending the outcome of the High Court appeal.

The Undertakings of Temwood before the Full Court on 22 May 2002

The undertakings given to the Full Court by Temwood were that should the Commission's appeal to the High Court be allowed and the relevant condition be held to have been validly imposed for a proper planning purpose, Temwood would as soon as reasonably practical after the appeal was allowed, cede to the Crown free of cost without compensation by the Crown the land the subject of the condition. Alternatively should the proposed appeal be allowed and the condition be held to have been validly imposed and Temwood did not comply with the above mentioned undertaking, it would consent to an injunction by this Court requiring it to cede the relevant land to the Crown free of cost and without any payment of compensation by the Crown. Also it would consent to an order that it pay indemnity costs of that application.
Temwood also undertook not to sell, transfer or otherwise dispose of, or enter into any agreement to sell, transfer or otherwise dispose of, its interest as freehold owner of the relevant land or any part thereof without the Commission's consent which consent should not be unreasonably withheld, until either the day on which the proposed appeal is dismissed or if it is allowed and the condition is held to have been validly imposed, Temwood had complied with the undertaking to cede the land to the Crown free of cost and without any payment of compensation.
On the same day Temwood consented to an order being made that a public access easement be created by deed at Temwood's cost in favour of the City of Rockingham to enable access in perpetuity by the general public over all of the relevant land, such easement to be annotated on the deposited plan pursuant to s 136C and s 136F of the Transfer of Land Act 1893 (WA); also that an easement in gross be created by deed pursuant to s 195 of the Land Administration Act 1997 at Temwood's cost in favour of the City of Rockingham to enable access for management over all of the relevant foreshore land.

Temwood's Argument

Temwood's argument is that it should be allowed to proceed with the arbitration so that it can obtain compensation for the land pending the determination of the High Court appeal. It argues that the Commission is contractually bound by the consent orders made in the Full Court and that that contract cannot be varied other than on a ground pursuant to which the contract could be set aside or varied in equity or at law – Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593 at 599; Provident Capital Ltd v Hazaran Pty Ltd [2002] NSWSC 825 at [29]‑[30]. Temwood contends that the Commission cannot now resile from the consent order which it contends was a contract and that it has not shown or attempted to show grounds to set aside or vary that contract. It contends that the Commission having consented to the orders, it is required to conduct the litigation according to a standard of fair play and that having accepted the undertakings in lieu of applying for a stay, the Commission should not be permitted to seek to resile from the agreement. It also submits that special leave was granted so that the Commission could pursue a "test case" and that, as it is a State instrumentality, it was required but failed to disclose to the High Court its intention to make the present application for a stay. That might have affected the grant of special leave.

Temwood contends that the arbitration is to assess compensation and not to cause the foreshore reserve to be transferred or otherwise cease to be in the Commission's name and that the arbitration will have no effect on the High Court appeal. Further, that there is no prospect of the arbitration being completed prior to the High Court appeal being determined.
Temwood contends that even if the arbitration is completed before the High Court appeal is determined an award can be made. If the appeal is allowed the High Court would have power to order the sum of the award to be repaid – Nykredit Mortgage Bank plc v Edward Erdmann Group Ltd (No 2) [1997] 1 WLR 1627 at 1629‑1637. Alternatively Temwood contends the award can be appealed if the High Court appeal is allowed. Alternatively it is said that the Commission would have a claim in restitution for a mistaken payment and that no payment would be made under a compulsory order unless the Court registers the award. At that time a stay could be sought.
Temwood contends that it is after the completion of the arbitration and prior to the making of an award which would be the appropriate time for any stay to be granted, because at that time the parties would be aware of their respective rights and liabilities.
Importantly, Temwood contends that if a stay is granted at this stage its rights to compensation will be deferred, at least arguably, without any entitlement to interest; that at least arguably it will be held out of compensation of $6,300,000 without any right to interest on that sum for loss of use of the money.
Temwood contends that the power to stay an action exists where the same or similar facts and causes of action are litigated in two different courts; that it is only enlivened if the two actions involve substantially the same issues – Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd (1992) 34 FCR 287. It contends that the issues in the arbitration are not substantially the same issues as these in the High Court appeal and are in fact entirely different; that the High Court appeal raises the issue as to whether the Full Court decision was correctly decided and consequently whether the condition requiring ceding of the foreshore reserve to the State was within the Commission's power and if so, whether the condition was a valid exercise of power, whereas ARB 3 of 2003 at this stage only raises the issue as to who should be appointed as an arbitrator in the arbitration between the parties.
With respect to that last proposition, in my view it is relevant to look at the arbitration as a whole rather than the stage it has reached at this time, because once it is decided who should be appointed as an arbitrator, the arbitration will proceed and the questions concerning whether the development application was made in good faith and the value of the foreshore reserve will be litigated. Temwood however says that there will be no determination in the arbitration of common facts or duplication of witnesses or interlocutory steps with those in the High Court appeal and that there is no potential for the two Courts to determine the same issues; there is no multiplicity of proceedings – Sterling Pharmaceuticals at 291‑292.
Further, Temwood contends that if the High Court appeal is allowed the Commission will be able to seek costs orders for the whole of the arbitration, including the application to appoint the arbitrator; and that there is no suggestion that Temwood could not pay such a costs order. Further that the application for the appointment of an arbitrator will be determined on affidavit evidence. It is a very short application with no foreseeable further interlocutory applications.
Importantly, Temwood also contends that it is entitled to the full benefit of its judgment in the Full Court. That includes the consequence that it has an immediate right to compensation subject to the matters raised in the arbitration. It stresses that its claim is for $6,300,000 and that it should not be held out of its money pending the determination of the High Court appeal. It says the arbitration is not inconsistent with its undertakings to the Court as the arbitration is to determine the value of injurious affection to the foreshore reserve caused by the reservation and not to determine any compensation for the transfer of the land to the State. It says it has taken significant steps to ensure that the Commission is not disadvantaged while preserving its entitlement to the benefit of the Full Court's judgement. In contrast it says that the Commission is attempting to deprive Temwood of compensation to which it is entitled.

The Commission's Argument

The Commission concedes that the lodging of an appeal to the High Court does not stay the enforcement of the orders made pursuant to the Full Court's decision. However it contends that a stay may be granted as the Court has an inherent jurisdiction to endeavour to ensure that the pursuit of its ordinary procedures does not lead to injustice; that a stay may granted at any stage of the proceedings where it appears to be demanded by the justice of the case. It submits that now that special leave has been obtained, the Court has a discretion to grant a stay unqualified by the restraint of exceptional circumstances – Smith v New South Wales Bar Association (1991) 66 ALJR 219 at 220 per Mason J. It concedes that special circumstances must exist justifying departure from the ordinary rule that a successful litigant is entitled to the fruits of his or her judgment pending the determination of any appeal – Federal Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220 at 222‑223 per Dawson J.
The Commission contends that special circumstances justifying a stay will exist where it is necessary to prevent the appeal if successful from being futile or nugatory and where for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to its former position if the judgment against it is executed – McBride v Sandland (No 2) (1918) 25 CLR 369 at 375. Further, that the Court has an inherent power to control and manage proceedings to the extent that it can stay proceedings for a period of time in order for the outcome of proceedings in another Court to be determined when that outcome may have an impact on issues to be resolved in the proceedings or may affect the proceedings in some other way: Software Engineers Australia (NSW) Pty Ltd v Bonket Pty Ltd [2002] FCA 1168 at [21]‑[22].
The Commission make the point that as a result of the orders made in the Full Court and the undertakings given by Temwood, Temwood has accomplished a subdivision of land which was the subject of two subdivision approvals in respect of which the relevant condition was imposed. To that extent Temwood has obtained the fruits of the Full Court's judgment. The Commission says that there has been a change of circumstances since the Full Court's decision in that Temwood has made the claim for compensation following the Commission's decision to refuse the appellant's development application; further that the High Court has granted the Commission special leave to appeal against the Full Court decision.
The Commission submits that there is an overlapping of the matters being considered by the High Court and in the arbitration insofar as the purpose of the arbitration is to determine the question whether the subject land is injuriously affected within the meaning of s 11 of the Town Planning and Development Act (WA) and as to the amount of the sum to be paid as compensation pursuant to s 11, whereas the High Court appeal pertains to the validity of the condition imposed under s 20 of the Act to cede the land under a Town Planning Scheme free of cost to the Crown without the payment of compensation.
The Commission argues that any determination of an arbitrator that compensation is payable by the Commission would render the appeal to the High Court futile or nugatory because the subject land would no longer be uncompensated reserve land, that status being central to the very issue to be determined by the High Court, namely, whether the respondent has power to acquire land which is reserved under a Town Planning Scheme to be ceded without compensation being payable. It contends that if the arbitration is to proceed and an order is made that compensation is payable in respect of the subject land, the High Court appeal would be rendered futile or nugatory. Similarly, if the High Court allows the Commission's appeal the relevant Supreme Court proceedings (ARB 3 of 2003) will be rendered futile or nugatory; that work done in procedural matters in the arbitration proceedings would be wasted if the Commission was successful in the High Court proceedings and there will be a substantial waste of time, expense and resources if an arbitration in relation to the relevant land is conducted in circumstances where it would be unnecessary if the Commission is successful in the High Court proceedings. To that extent it says, the two proceedings are inconsistent.
The Commission further contends that the arbitration proceedings are inconsistent with Temwood's undertakings which it provided in relation to Full Court's decision, namely that it would provide the land to the Crown free of cost and without payment of compensation by the Crown if the respondent was successful in the High Court appeal.

Conclusion

In my opinion, the Commission's submission that the arbitration proceedings are inconsistent with the appellant's undertaking that it will provide the land to the Crown free of cost and without payment of compensation by the Crown if the Commission is successful in the High Court appeal is correct. Further, in my view, there would be a duplication of costs and effort if the two proceedings which are fundamentally inconsistent are allowed to proceed at the same time.
Further, it was part of the order made on 22 May 2002 by this Court, that a public access easement in favour of the City of Rockingham would be granted by Temwood to enable access in perpetuity by the general public over all of the relevant foreshore land and also that an easement in gross would be granted to enable access for management over all of the relevant foreshore land. Neither of those conditions is consistent with Temwood proceeding with the present arbitration proceedings pending the outcome of the High Court appeal.
There is another matter which is relevant which we were informed of subsequent to the hearing of this application and that is that the High Court appeal is listed for hearing on 27 April of this year. Depending on what happens at that hearing the matter of the stay could be reconsidered at the conclusion of the hearing if that was thought desirable. Also, Temwood could make an application to the High Court to remove any stay on arbitration proceedings after the appeal has been argued.
With respect to the contention which has now been raised, that this Court lacks the jurisdiction to grant a stay in the arbitration, I agree with the reasons and conclusions of Wheeler J.
For those abovementioned reasons I would grant the stay requested by the Commission.