Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust v Bishop Irinej Dobrijevic (No 2) [2017] NSWCA 42

Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust v Bishop Irinej Dobrijevic (No 2) [2017] NSWCA 42

The stay was refused because, on the material before the Court, the appellants had not met the Burgundy Royale threshold: no grounds of appeal had been formulated or foreshadowed, no evidence of possible prejudice had been led, the Attorney-General's objections were accepted, and nothing to be done under the Court's orders was shown to be irreversible if the High Court later granted special leave and found error. A short mechanical order delaying presentation of the notice of transfer until 4pm on 27 March 2017 was made only to allow the appellants an opportunity to prepare material for any further stay application.

Jurisdiction
Australia
Judgment Date
07 March 2017
Procedural Posture
Practice and Procedure Ruling / Application for Stay Pending Application for Special Leave to Appeal to the High Court After Dismissal of the Appeal
Outcome
Application for a stay refused; short order made delaying presentation of the notice of transfer before 4pm Monday 27 March 2017.
Legal Topics
['stay Pending Special Leave to Appeal' 'burgundy Royale Test' 'transfer of Monastery Property' 'charitable Trusts Act 1993 (nsw) S 9']
['practice and Procedure' 'appellate Procedure' 'charitable Trusts'] ['stay Pending Special Leave to Appeal' 'burgundy Royale Test' 'transfer of Monastery Property' 'charitable Trusts Act 1993 (nsw) S 9']

Case Brief

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Procedural Posture

Practice and Procedure Ruling / Application for Stay Pending Application for Special Leave to Appeal to the High Court After Dismissal of the Appeal

Legal Issues

  1. 1 ['Whether orders announced by the Court earlier that day should be stayed pending an application for special leave to appeal to the High Court.' 'Whether the appellants satisfied the Burgundy Royale test for a stay, including exceptional circumstances, prospects of special leave, prejudice to the respondents and balance of convenience.' 'Whether a notice of transfer of the Monastery Property should be delayed to allow the appellants to prepare a further stay application.']

Ratio Decidendi

The stay was refused because, on the material before the Court, the appellants had not met the Burgundy Royale threshold: no grounds of appeal had been formulated or foreshadowed, no evidence of possible prejudice had been led, the Attorney-General's objections were accepted, and nothing to be done under the Court's orders was shown to be irreversible if the High Court later granted special leave and found error. A short mechanical order delaying presentation of the notice of transfer until 4pm on 27 March 2017 was made only to allow the appellants an opportunity to prepare material for any further stay application.

Court Disposition

Application for a stay refused; short order made delaying presentation of the notice of transfer before 4pm Monday 27 March 2017.

Orders

  • ['A Notice of Transfer transferring the Monastery Property at Wallaroo, NSW, not be presented to the first appellant by the second respondent on the appeal before 4pm Monday 27 March 2017.' 'The application for a stay is refused.']