Case: Alexander v Cambridge Credit Corp. Ltd (receivers apptd) [1985] 2 NSWLR 685
Outcome: cited
The principles influencing the exercise of the discretion are these. Order 52, r 17(1) suggests by its language a broad discretion, unlimited, in the Court to order a stay notwithstanding that an appeal shall not operate as a stay of execution or of proceedings under the judgment appealed from ( Powerflex Services Pty Ltd v Data Access Corporation (1996) 137 ALR 498 , Burchett J). The starting point however, is to recognise that the discretion, although importantly broad, is a true exception , conditioned by demonstrated circumstances, to the general proposition that an appeal does not operate as a stay. That is because the judgment appealed from is prima facie assumed to be correct and a person put to trial in a controversy rather than enjoying the benefit of performance or settlement is entitled to enforce the orders which when made reflect the position inter-parties according to law. However, consistent with Powerflex and Alexander v Cambridge Credit Corp. Ltd (receivers apptd) [1985] 2 NSWLR 685 per Kirby P, Hope and McHugh JJ at 694, it is sufficient but also necessary that the applicant for a stay demonstrate "a reason" or an "appropriate case" to warrant the exercise of discretion in the applicant's favour. Otherwise, judgments of the Court in its original jurisdiction might be treated as merely provisional. A reason tipping the balance in favour of an applicant in an appropriate case will take account of whether the applicant has discharged an onus of demonstrating that a stay order, in the terms proposed, is "fair to all parties" ( Alexander v Cambridge Credit at 694F) having regard to the balance of convenience ( i.e. the balance of risks and irremediable harm) and the competing rights of the parties ( Alexander v Cambridge Credit at 694G). For example, is there a risk that should a stay be ordered, the appellants will dissipate or transfer assets that might otherwise have answered the judgment? Should a stay be conditioned on the payment of money into Court, a payment of some monies to the judgment creditor or the provision of security for the judgment debt? 40 "Fairness" will be, in part assessed, by an applicant demonstrating that the benefit of a successful appeal will be taken away in every practical sense or rendered nugatory, if no stay of the primary order(s) is granted. Such a consideration has been described as a "substantial factor" influencing the discretion to order a stay ( Alexander v Cambridge Credit at 695D). Weighed in the balance is a preliminary non-speculative assessment of whether the appellant by the grounds of appeal has raised an arguable case. Such an assessment however is designed to be "protective" of the judgment creditor in the sense of being undertaken to test whether the appeal has "been lodged without any real prospect of success and simply in the hope of granting a respite against immediate execution upon the judgment" ( Alexander v Cambridge Credit at 695F). These principles have been applied in Powerflex v Data Access Corporation ; Starborne Holdings Pty Ltd v Radferry Pty Ltd &amp; Ors [1998] FCA 548 ; Henderson v Amadio Pty Ltd (No. 3 ) (1996) 65 FCR 66 and other cases in this Court. The assessment of the prospects of success of the appeal by reference to such a test reflects a low threshold of arguability. In Sevenhill Holdings Pty Ltd v Musovic [1992] FCA 372 , French J put the notion of an appeal reflecting an arguable prospect of success in these terms: In saying so, I accept that the very findings which underpin [it] are under challenge in an appeal which is not frivolous, that is to say, an appeal which has an arguable prospect of success.