Hamersley Iron Pty Ltd & Ors v Avon Francis Lovell & Ors

(1998) 20 WAR 79; [1998] WASCA 304

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Execution
3. › Stay of execution
4. › Stay pending application for special leave to appeal to High Court
5. › Whether special or exceptional circumstances required
6. › Whether stay necessary to preserve subject matter of litigation
7. › Whether risk that successful appellant could not be restored to former position
8. › Rules of the Supreme Court 1971 (WA), O 47 r 13(1)
1. Practice and Procedure
2. › Execution
3. › Stay of execution
4. › Fines for contempt of court and costs orders
5. › Whether arguability of appeal, absence of prejudice, bona fide application and expeditious prosecution amount to special circumstances
1. Practice and Procedure
2. › Stay of proceedings
3. › Principles governing stay applications
4. › Whether same principles apply in intermediate court as in High Court
5. › Whether more lenient New South Wales approach should be followed in Western Australia

Quick Take

In Western Australia, a stay of execution pending an application for special leave to appeal to the High Court requires special or exceptional circumstances — the same stringent test applied by the High Court itself. The more lenient NSW approach (John Fairfax & Sons v Kelly (No 2)) does not apply. The mere arguability of the appeal, absence of prejudice to the respondent, bona fide nature of the application, and expeditious prosecution do not, even taken together, constitute special circumstances. The applicant must show that a stay is necessary to preserve the subject matter or integrity of the litigation, or that there is a real risk a successful appellant cannot be restored to their former position.