Why v Zernike Group

[2006] WASCA 61

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   WHY -v- ZERNIKE GROUP & ORS [2006] WASCA 61

CORAM:   PULLIN JA

HEARD:   14 MARCH 2006

DELIVERED          :   14 MARCH 2006

FILE NO/S:   CACV 22 of 2006

BETWEEN:   PETER HARMAN WHY

Applicant

AND

ZERNIKE GROUP
First Respondent

ANTONIUS MARTINUS JOSEF HIUSSEN
Second Respondent

MARK PETER COLLINS
Third Respondent

ZERNIKE AUSTRALIA PTY LTD
Fourth Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :MASTER NEWNES

File No  :COR 308 of 2005

Catchwords:

Appeal - Stay of orders pending interlocutory appeal - Turns on own facts

Legislation:

Civil Judgments Enforcement Act 2004 (WA)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicant:     In person

First Respondent           :     Mr M L Bennett

Second Respondent      :     Mr M L Bennett

Third Respondent          :     Mr M L Bennett

Fourth Respondent        :     Mr P C Doherty

Solicitors:

Applicant:     In person

First Respondent           :     Deacons

Second Respondent      :     Deacons

Third Respondent          :     Deacons

Fourth Respondent        :     Minter Ellison

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

Nil

Case(s) also cited:

Nil

1. PULLIN JA:  This is an application for a stay of orders said to have been made in COR 308 of 2005, pending the hearing of the appeal which has been instituted in these proceedings.  The appeal notice which has been filed in these proceedings says that the orders appealed against are:

   (1) the refusal to discharge an injunction;

   (2)the refusal to order discovery;

   (3)the refusal to order pleadings; and

   (4)an order that the matter be heard in March 2006.

2. The real complaint of the applicant appears to be the existence of the injunction, and when I look back at the fiat sheet of the hearing on 27 January 2006, which is said to be the date when these orders were made, I find that no such orders were made.  On 27 January 2006 the orders made by Master Newnes were:

   (1)the originating process was adjourned to 2 March 2006 at 9.15 am and an order in terms of a minute of 23 January 2006 (containing programming orders for affidavits and submissions); and

   (2)costs reserved. 

3. I notice that in the minute there was liberty to apply at short notice granted to the parties. 

4. I have also been handed an affidavit of Jennifer Mary Hill sworn 13 March 2006 which indicates that Mr Why had given an indication at the 27 January hearing that he wanted the injunction discharged and that the Master had said that if he wanted to bring any application, including an application to discharge the injunction, it would need to be done on notice to the first, second and third respondents' solicitors and on proper evidence.  There were no written reasons for the decision on 27 January 2006.

5. If a stay is to be ordered, s 15 of the Civil Judgments Enforcement Act 2004 (WA) provides that a suspension order may be made suspending the enforcement of a judgment, but that the Court may only make such an order if there are special circumstances that justify doing so.

6. This corresponds with the principles that used to apply, before that Act came into effect, when a party sought a stay for the purposes of appealing or seeking leave to appeal to the High Court.  It is necessary to consider the arguability of the case and whether or not a stay is necessary to preserve the subject matter of the litigation.

7. As I have indicated, the orders which were said to have been made were not made, so the prospects of the appeal do not appear to be great.  Also, there is nothing before me which indicates that the stay is required to ensure to ensure that the subject matter of the litigation is preserved.  The effect of the injunction is to prevent Mr Why exercising powers that he says he could exercise in control of the company.  On the other hand, Mr Collins and Mr Hiussen claim that they are directors and that they control the company.  That has to be sorted out at the hearing.

8. The other factor to note is that the matter is listed for hearing on 22 March, only a few days away, when the primary issues between the parties concerning control of the company will be dealt with. 

9. In relation to the appeal regarding discovery and pleadings, I see no arguable case in relation to those points.  The matter at issue in COR 308/05 appears to be a question about whether or not Mr Collins and Mr Hiussen have been validly appointed as directors of the company and that depends upon documents which appear not to be in dispute. 

10. It also strikes me as an eminently sensible course to proceed without pleadings so that the parties do not get bogged down in having to file those documents when they could be preparing for the hearing itself. 

11. For those reasons I would refuse the application for a stay.