Majak v Rose (No 2) [2016] NSWCA 337

Majak v Rose (No 2) [2016] NSWCA 337

Section 69C(2) of the Supreme Court Act 1970 (NSW) automatically stays execution of costs orders from the Local Court and District Court (other than an apprehended violence order) in judicial review proceedings. Since no application was made to lift the stay, all steps to enforce such orders are stayed, and earlier orders to the contrary must be set aside. Declaratory relief is appropriate to clarify the operation of the statutory stay to third parties.

Jurisdiction
Australia
Judgment Date
06 December 2016
Procedural Posture
Judicial Review; Motion for Stay of Execution / Decision on Motion to Review Prior Order and Stay Execution of Costs Orders
Outcome
Orders made as set out in the judgment; earlier costs order set aside in part; declaration made as to operation of stay; costs awarded to applicant on reviewed motion.
Legal Topics
['stay of Execution' 'apprehended Domestic Violence Orders' 'costs Orders' 'supreme Court Act 1970 (nsw) S 69 C' 'appellate Procedure']
['civil Procedure' 'judicial Review' 'criminal Law'] ['stay of Execution' 'apprehended Domestic Violence Orders' 'costs Orders' 'supreme Court Act 1970 (nsw) S 69 C' 'appellate Procedure']

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Procedural Posture

Judicial Review; Motion for Stay of Execution / Decision on Motion to Review Prior Order and Stay Execution of Costs Orders

Legal Issues

  1. 1 ['Does s 69C(2) of the Supreme Court Act 1970 (NSW) operate to automatically stay execution of costs orders issued by the Local Court and the District Court pending judicial review?' 'Whether the earlier order dismissing the applicant’s motion for a stay (by Meagher JA) should be set aside in light of s 69C(2) not being previously considered.' 'Entitlement to costs of stay application motions in light of operation of the statutory stay.']

Ratio Decidendi

Section 69C(2) of the Supreme Court Act 1970 (NSW) automatically stays execution of costs orders from the Local Court and District Court (other than an apprehended violence order) in judicial review proceedings. Since no application was made to lift the stay, all steps to enforce such orders are stayed, and earlier orders to the contrary must be set aside. Declaratory relief is appropriate to clarify the operation of the statutory stay to third parties.

Court Disposition

Orders made as set out in the judgment; earlier costs order set aside in part; declaration made as to operation of stay; costs awarded to applicant on reviewed motion.

Orders

  • ['Set aside order 2 made by Meagher JA on 12 October 2016.' "Each party's costs of the notice of motion filed 5 September 2016 be that party's costs of the summons filed 5 September 2016." 'Declare that, no order having been made pursuant to s 69C(4) of the Supreme Court Act 1970 (NSW), the execution of costs orders...