The John Fairfax v Kelly test — that a stay will normally be granted unless the application for special leave is 'plainly hopeless' — remains the applicable test in the NSW Court of Appeal for stays pending special leave applications, though the question whether the more stringent Burgundy Royale test should apply remains open for determination by a multi-judge bench. Palmer v Permanent Custodians Ltd [2009] VSCA 164 does not decide that intermediate appellate courts must apply the same test as the High Court.
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