Young v Roads and Maritime Services (No 2)

[2019] NSWCA 291

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Young v Roads and Maritime Services (No 2) [2019] NSWCA 291
Hearing dates:	25 November 2019
Date of orders:	25 November 2019
Decision date:	25 November 2019
Before:	Macfarlan JA
Decision:	Notice of motion dismissed with costs.
Catchwords:	APPEALS – stay of proceedings – stay pending application for special leave to appeal to High Court – no prospects of success – stay refused
Cases Cited:	Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; [1986] HCA 84
Category:	Procedural and other rulings
Parties:	Maureen Mary Young (Applicant) Roads and Maritime Services (First Respondent) State of New South Wales (Second Respondent)
Representation:	Counsel: Self-represented Applicant P M Lane (Respondents)   Solicitors: Self-represented Applicant Crown Solicitor’s Office (First and Second Respondents)
File Number(s):	2019/290549
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2019] NSWSC 1014 Date of Decision: 13 August 2019, 30 September 2019, 12 April 2019, 21 May 2019 Before: Fagan J, Registrar Bradford and Registrar Brown File Number(s): 2018/83808; 2013/249441

Judgment

1. HIS HONOUR: By judgment of 31 October 2019, Emmett AJA and I dismissed an application by Ms Young for leave to appeal against decisions of Fagan J and two registrars ([2019] NSWCA 266). Fagan J had inter alia made an order in favour of the Roads and Maritime Services (“the RMS”) granting it possession of an area of the seabed in Sydney Harbour over which a houseboat which Ms Young occupies is moored. Ms Young proposes to file in the High Court an application for special leave to appeal against the judgment of 31 October, and now seeks a stay of that judgment pending determination of her application to the High Court.

2. In our judgment of 31 October, Emmett AJA and I found that none of Ms Young's proposed grounds of appeal had any prospects of success (see [24]). In her application for a stay, Ms Young has not sought to address that conclusion or any of the other observations that we made in our judgment. Nor has she provided a draft of her special leave application, if indeed one exists. In these circumstances, there is no reason to think that her High Court application for special leave to appeal has any prospects of success.

3. In Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; [1986] HCA 84, Brennan J referred to the inherent jurisdiction of the High Court to grant a stay pending the determination of High Court proceedings and said that that jurisdiction could be exercised by the court below if the circumstances warranted it. His Honour referred to the jurisdiction to grant the stay as an “extraordinary” one to be exercised only in exceptional circumstances (at 684).

4. His Honour identified four factors of particular importance in relation to the court’s exercise of its discretion (at 685). The first is whether there is a “substantial prospect that special leave to appeal will be granted”. The second is whether the “applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending”. That of course, is not of present relevance because Ms Young is in fact seeking a stay in this Court. Thirdly, Brennan J said that it is relevant to ascertain whether the grant of a stay will “cause loss to the respondent” and, fourthly, to consider where the “balance of convenience lies” (ibid).

5. In light of Emmett AJA and my conclusion in our 31 October 2019 judgment that Ms Young did not have any prospects of success on appeal to this Court, I conclude that her application for special leave to appeal from our judgment also has no prospects of success. Although that is not the only factor to be taken into account, in my view, in the circumstances of this case, it is an overwhelming factor which is effectively determinative of her present application.

6. For these reasons, the application by Ms Young for the orders set out in her notice of motion filed on 20 November 2019 is refused and that notice of motion is dismissed with costs.

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Decision last updated: 29 November 2019