Citation: Woods v Director of Public Prosecutions (NSW); Fantakis v Director of Public Prosecutions (NSW) (No 2) [2016] NSWSC 448
Court: Supreme Court of New South Wales
Date: 8 April 2016
Judge(s): Campbell J
Background
Two plaintiffs faced murder committal proceedings scheduled to commence on the Monday following this hearing in the Burwood Local Court, with five days listed. They had brought judicial review applications in the Supreme Court challenging aspects of the committal proceedings, and Wilson J had made orders earlier that week in an attempt to have those applications resolved before the committal began. That proved impossible, and Campbell J adjourned the substantive judicial review hearing.
With the committal imminent, the plaintiffs applied for a stay of the Local Court proceedings pending the outcome of their judicial review applications. One plaintiff, Mr Fantakis, was also in the position of having organised a new legal team who were unavailable to appear at the committal the following week.
The central concern raised by Mr Fantakis was that the presiding Magistrate had, or appeared to have, materially prejudged the proceedings. If that bias argument succeeded on judicial review, the entire committal would need to recommence before a different Magistrate.
Legal Issues
- Whether the plaintiffs had a fairly arguable case for the relief sought in the judicial review proceedings
- Whether the balance of convenience favoured a stay of the Local Court committal proceedings pending the outcome of the judicial review
- Whether the unavailability of Mr Fantakis's new legal team was a relevant consideration in the stay application
Decision
Campbell J acknowledged the general principles governing a stay application of this kind. Although described as a "stay," such an order operates as an interlocutory injunction. The applicant must demonstrate a fairly arguable case for the relief sought and show that the balance of convenience favours the grant, including that the benefit of the Supreme Court remedy is likely to be rendered nugatory without the stay.
On the first limb, because the adjournment had prevented Mr Fantakis from taking the Court through the bias material, Campbell J was not in a position to assess the argument properly. The Judge noted that was not Mr Fantakis's fault, and accordingly assumed in his favour that the bias claim was at least fairly arguable.
On the balance of convenience, Campbell J found that the cost consideration cut both ways equally. If the plaintiffs ultimately succeeded, the costs of the committal would be wasted; but equally, if a stay were granted and the judicial review failed, the same costs would also be wasted. That factor was therefore neutral. Critically, the Judge noted that the committal was very unlikely to conclude within the five days listed, meaning the benefit of any successful judicial review order was not likely to be lost or rendered nugatory by the proceedings continuing.
As to Mr Fantakis's new legal team being unavailable, Campbell J held that was not a relevant consideration. The Court was not exercising a power to simply adjourn Local Court proceedings; it was determining whether a stay by way of interlocutory injunction should be granted, and the availability of legal representatives did not bear on that question. The stay application was refused.
Orders Made
• The application for a stay is refused.
Key Takeaways
- A stay of lower court proceedings, while described as such, operates as an interlocutory injunction and requires the applicant to demonstrate both a fairly arguable case and a balance of convenience in favour of the grant.
- Where an adjournment prevented full argument, the Supreme Court was prepared to assume a fairly arguable case in the applicant's favour rather than hold the procedural difficulty against them.
- Wasted costs from continued proceedings carry no independent weight in the balance of convenience if the same costs would equally be wasted were a stay granted instead.
- The fact that committal proceedings were unlikely to conclude before any judicial review determination meant the benefit of a successful review would not be rendered nugatory by refusing the stay.
- The unavailability of a party's newly retained legal team for an imminent hearing in a lower court is not a relevant consideration on a stay application of this kind; it bears on an adjournment, not on the grant of an interlocutory injunction.
Legislation and Cases Referenced
No legislation or cases were cited by name in the judgment text or metadata. Campbell J referred to general principles governing stays of lower court proceedings as interlocutory injunctions, without attribution to specific authorities.