Hancock v Rinehart [2016] NSWSC 116

Procedural Posture

Application for Stay Pending Appeal / Application by the First Defendant for Continuation of a Stay Pending the Hearing and Determination of Her Application for Leave to Appeal to the Court of Appeal

Legal Issues

1. 1 ["Whether the stay of order (1) made on 2 February 2016 should be further extended pending determination of the first defendant's application for leave to appeal." 'Whether refusal of a stay would render the proposed appeal nugatory.' 'Whether the proposed appeal was sufficiently arguable, including whether the first defendant could disturb both the question of principle and the discretionary aspect of the judgment.']

Ratio Decidendi

Although refusal of a stay would render the appeal practically nugatory, and there was at least an arguable case for leave to appeal on the question of principle concerning proof of legal professional privilege by inspection alone, the earlier judgment had a dual ratio. The first defendant would have to disturb not only the ruling on principle but also the discretionary conclusion that the proposed course was unsatisfactory and contrary to justice. No sufficient House v The King discretionary error was identified, and continuation of the stay would delay completion of the part-heard enforcement application. The prospects of a different ultimate outcome were remote, so a stay pending...

Court Disposition

Application for stay pending appeal refused. Short stay granted to permit application for stay to be made to Court of Appeal.

Orders

• ["The first defendant's application for a further extension of the stay of order (1) made on 2 February 2016, continued on 5 February and 8 February 2016, pending determination of her application for leave to appeal be dismissed." "The first defendant pay the plaintiffs' costs of the application for a stay." 'Order...