Trad v Harbour Radio Pty Ltd [2010] NSWCA 41

Tobias JA:

46 The relevant principles applicable to a stay application were referred to by this Court (Kirby P, Hope and McHugh JJA) in Alexander v Cambridge Credit Corporation Ltd (Receivers appointed) (1985) 2 NSWLR 685 at 693-695. Particular reliance was placed by the defendant upon the following passage from the joint judgment at 695:

“Secondly, although courts approaching applications for a stay will not generally speculate about the appellant’s prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them considering the specific terms of a stay that will be appropriate fairly to adjust the interest of the parties, from making some preliminary assessment about whether the appellant has an arguable case. This consideration is protective of the position of a judgment creditor where it may be plain that an appeal, which does not require leave, has been lodged without any real prospect of success and simply in the hope of gaining a respite against immediate execution upon the judgment.”

47 In Chen v Lym International; Chen v Marcolongo [2009] NSWCA 121, Beazley JA, sitting as the referrals judge, observed (at [15]) that the comment by the Court in the passage which I have recorded above, indicates that there is no necessary requirement that the Court determine whether there is an arguable case on the appeal although it may be relevant in determining whether it is appropriate to grant a stay. Her Honour then remarked:

“In the present climate, where legal practitioners have a statutory obligation not to bring proceedings that do not have reasonable prospects of success: the Legal Profession Act 2004, s 347, this particular consideration may be one that the courts can approach with less scrutiny. It will depend upon the circumstances of the particular case. The court will always be concerned to ensure that its processes are not used inappropriately, for example, by permitting a defendant from keeping a successful plaintiff out of the fruits of his/her litigation victory by seeking a stay in respect of a hopeless appeal. … The primary consideration in the court’s determination will be whether the applicant for the stay has discharged the onus of demonstrating that there is a proper basis for the stay.”