PRACTICE AND PROCEDURE — application for the stay of a final hearing pending an appeal — principles applicable
Quick Take
1On an application under s 67 of the Civil Procedure Act 2005 (NSW) to stay a final hearing pending appeal, the applicant bears the onus of showing that the appeal raises serious questions, that there is a real risk of prejudice not redressable by a successful appeal, and that the balance of convenience and discretionary considerations favour a stay. A detailed assessment of the grounds of appeal is not required.
2Where the proposed appeal seeks leave to challenge a discretionary decision on practice and procedure, its prospects may be assessed as arguable but not strong. On the facts, the mere commencement of a long-listed trial was not shown to cause irremediable prejudice, particularly given the trial judge's flexibility to adjourn if appellate hearings were listed.
3Under UCPR r 21.11, documents called for by an inter partes notice to produce should ordinarily be produced unless the court otherwise orders. A party's preference to produce documents during its own presentation at trial is not a good reason to be excused, since opposing parties are entitled to inspect the material before trial.
