Stopping a Judgement of the Court

Stopping a Judgement of the Court

The filing of a notice to appeal does not automatically grant a stay of execution of judgement.

The granting of a stay is a discretionary decision of the appellate judge.

The general principles governing the circumstances in which the Court may grant a stay were expressed in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 at [9]:

  1. The successful litigant at first instance will ordinarily be entitled to enforce the judgment pending the determination of any appeal.
  2. It is for the applicant for a stay to move the court to a favourable exercise of its discretion.
  3. It will not do so unless special circumstances are shown justifying the departure from the ordinary rule.
  4. The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation, or where refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. It is often put shortly that it will first and foremost be necessary to establish that without the grant of a stay, the right of appeal, whether upon the grant of leave or special leave or not, will be rendered nugatory (emphasis added).
  5. If that can be demonstrated, the stay will generally still be refused unless it can be established that the appeal process, whether upon the grant of leave or special leave or not, has ultimately reasonable prospects of success so as to result in the grant of relief to the appellant. (emphasis added)
  6. If that hurdle can be overcome, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant; where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted.

The decision of Eastland was approved in Currie v Currie [2018] WASCA 30.

2020-07-23T05:38:03+00:00 August 17th, 2020|Uncategorized|0 Comments