Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Rinehart v Welker [2011] NSWCA 425
• Hearing dates: 19 December 2011
• Decision date: 21 December 2011
• Before: Beazley JA

Decision

Stay order (1) made on 19 December 2011 up to and including 13 January 2012.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Legislation Cited: Court Suppression and Non-Publication Orders Act 2010; Supreme Court Act 1970
• Cases Cited: Adeels Palace Pty Ltd v Moubarak (No 2) [2009] NSWCA 130; Advanced Building Systems Pty Ltd v Ramset Fasterners (Aust) Pty Ltd [1997] HCA 24; 145 ALR 121; Australian Broadcasting Commission v Parish (1980) 43 FLR 129; Bryant v Commonwealth Bank of Australia [1996] HCA 3; 134 ALR 460; Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 81 ALJR 1107; Hearne v Street [2008] HCA 36; Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651; International Litigation Partners Pte Ltd v Chameleon Mining NL [2011] NSWCA 186; Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; 161 CLR 681; John Fairfax and Sons Limited v Kelly (No 2) (1987) 8 NSWLR 510; Miller v Nationwide News Pty Ltd [2008] NSWCA 261; Minister for Local Government & Anor v South Sydney City Council (No 3) [2002] NSWCA 327; Palmer v Permanent Custodians Ltd [2009) VSCA 164; Saleh v Romanous [2010] NSWCA 373; Sibuse Pty Limited v Shaw (No 2) (1988) 13 NSWLR 125; White v State Bank of NSW [2002] NSWCA 408
• Category: Interlocutory applications
• Parties: Australian Broadcasting Corporation, Fairfax Media Publications Pty Ltd, Nationwide News Pty Ltd (Applicants - First Set); Hope Rinehart Welker, John Langley Hancock, Bianca Hope Rinehart (Applicants - Second Set); Gina Hope Rinehart (First Opponent); Ginia Hope Frances Rinehart (Second Opponent)
• Representation: A T S Dawson (Applicants - First Set); Dr A S Bell SC; D F C Thomas (Applicants - Second Set); B A Coles QC (First Opponent); F Kunc SC (Second Opponent); Addisons (Applicants - First Set); Johnson Winter & Slattery (Applicants - Second Set); Corrs Chambers Westgarth (First Opponent); Gadens Lawyers (Second Opponent)
• File Number(s): CA 2011/344306; 2011/344307

Decision under appeal

• Citation: Rinehart v Welker and Ors [2011] NSWCA 345
• Date of Decision: 2011-10-31 00:00:00
• Before: Tobias AJA
• File Number(s): CA 2011/344306; 2011/344307

Judgment

1 HER HONOUR : There are two applications before the Court, brought by Gina Hope Rinehart and Ginia Hope Frances Rinehart respectively, in which each seeks an order in identical terms that the order of the Court of Appeal made on 19 December 2011 (the Order) be stayed until 16 January 2012 and if, on or before that date, the applicant files an application in the High Court of Australia for special leave to appeal against the Order, that stay shall then continue until the determination of the application for special leave or further order of this Court or the High Court of Australia.

2 The Order was made in Rinehart v Welker [2011] NSWCA 403 and discharged orders made by Tobias AJA on 31 October 2011 under the Court Suppression and Non-Publication Orders Act 2010, s 7, s 11 and s 12. I will refer to the Court's decision as the Review judgment.

Background to proceedings

3 The applicants and respondents, who, for present purposes, may be referred to as the Trustee interests and the Beneficiary interests respectively, are parties to a deed (the Deed) made in 2006, which provides for the submission of disputes " under this Deed " to confidential mediation and arbitration: see the Deed, cl 20. The Deed was entered into following disharmony between the parties, who are all members of a prominent Western Australian family and whose affairs tend to attract media publicity.

4 On 5 September 2011, an application was made, ex parte , in the Supreme Court, Equity Division, seeking relief in relation to the affairs of a family trust of which Ms Gina Rinehart is the trustee (the Trustee proceedings). The other party in the Trustee interests, Ms Ginia Rinehart, is a beneficiary under the Trust, but has joined with Ms Gina Rinehart in the dispute with the other beneficiaries. The ex parte application was made without any prior resort to the confidential alternate dispute mechanisms for which the Deed made provision.

5 Ms Gina Rinehart made an application for a stay of the application brought by the Beneficiary interests as well as an application for a suppression order made under the Court Suppression and Non-Publication Orders Act (the Act). On 13 September 2011, Brereton J made an order under s 7 of the Act, prohibiting the disclosure, by publication or otherwise, of any information as to the relief claimed, or any pleading, evidence or argument filed, read or given in, the proceedings. Pursuant to s 9(4), the order did not prohibit disclosure or publication of his Honour's judgment, or of orders made in the proceedings.

6 On 7 October 2011, Brereton J dismissed the application brought by the Trustee interests to stay the Trustee proceedings on the basis that the Trustee proceedings did not involve a dispute under the Deed, so that cl 20 of the Deed had no application. His Honour ordered that the Trustee proceedings continue on pleadings and gave directions as to the filing and service of the statement of claim. His Honour directed that the pleadings thereafter be filed in accordance with the Rules. I have been informed that the defence is to be filed by 11 January 2012.

7 His Honour also made an interim suppression order under s 10 of the Act, or alternatively, in the Court's inherent jurisdiction, pending the Trustee interests filing a summons for leave to appeal or the determination of any such application or further order of the Supreme Court, or the Court of Appeal.

8 The interim suppression order made by Brereton J on 7 October 2011 prohibited disclosure by publication or otherwise of information as to any relief claimed in the proceedings or any pleading, evidence or argument filed, read or given in the proceedings. Pursuant to s 9(4) of the Act, the order did not prohibit disclosure or publication of any judgment given in the proceedings to date or of any orders made in the proceedings.

9 In his reasons for judgment, Brereton J, at [4], set out the relief sought by the Beneficiary interests in an amended summons which they sought leave to file and which was treated, in the hearing before Brereton J, as the summons upon which the Beneficiary interests would proceed if the stay application made by the Trustee interests failed. Because the relief sought by the Beneficiary interests was contained within the terms of the judgment, it did not fall within the suppression order made by his Honour and is thus now in the public domain.

10 On 28 October 2011, the Trustee interests filed a summons seeking leave to appeal from the order made by Brereton J dismissing their application for a stay of the Trustee proceedings. The Trustee interests also filed an application seeking an order under the Act prohibiting the disclosure, by publication or otherwise, of any information as to the relief claimed, or any pleading, including the summary of argument, the summons, the draft notice of appeal, evidence or argument filed, read or given in the proceedings the subject of the summons for leave to appeal. This application was made as the orders of Brereton J did not extend to any documentation filed in the Court of Appeal.

11 On 31 October 2011, Tobias AJA made the following orders:

"1. Pursuant to s.7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (Act), and on the grounds referred to in s 8(1)(a), a suppression order is made prohibiting the disclosure by publication or otherwise of any information as to the relief claimed or any pleading, the Summary of Argument, submissions, the draft Notice of Appeal, evidence or argument filed, read or given in these proceedings, and including the contents of the red book, blue book, black book and orange book but not including the Summons seeking Leave to Appeal or the pronounced or published judgment of Tobias AJA.

2. Pursuant to s.12 of the Act, the suppression order in paragraph 1 above operates until determination of the Applicant's application for leave to appeal is determined or until further order of the Court.

3. Pursuant to s.11 of the Act, the suppression order in paragraph 1 above applies throughout the Commonwealth."

12 The Beneficiary interests made an application to review the decision of Tobias AJA pursuant to the Supreme Court Act 1970, s 46. On 19 December 2011, the Court, constituted by Bathurst CJ, McColl and Young JJA, made an order discharging orders 1, 2 and 3 made by Tobias AJA on 31 October 2011. The present applications for a stay are in respect of the order discharging the suppression orders of Tobias AJA.

13 A further matter of background which should be recorded is that at some stage leave was given to the Australian Broadcasting Commission, Fairfax Media Publications, Nine Network And Nationwide News to intervene in the proceedings. I will refer to the intervening parties as the Media interests.

The reasoning in the review judgment

14 As one of the arguments advanced on the stay application related to the prospects of success of an application for special leave to the High Court, it is necessary to consider the reasons given by the Court for discharging the suppression orders of Tobias AJA. I will do so in as brief terms as possible.

15 Bathurst CJ and McColl JA had regard to four matters: the meaning of " necessary " in s 8(1) of the Act; the public interest in " open justice " as a primary objective of the administration of justice; the meaning of the " administration of justice "; and " the effect of parties' agreements ".

16 Their Honours considered, at [27], that the word " necessary " in s 8 of the Act was a strong word and, when used in collocation with the necessity to prevent prejudice to the proper administration of justice was a clear indication that the Parliament was not dealing with trivialities: see Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 at [30]. Their Honours also considered that s 6 of the Act reinforced the legislative intention that orders made under the Act should only be made " in exceptional circumstances ".

17 Their Honours expressed the view, at [31], that it was not a sufficient basis for the making of an order under the Act that:

"... the information is inherently confidential as distinct from personal or commercial information the value of which as an asset would be seriously, compromised by disclosure ..." (emphasis added)

18 In dealing with " open justice ", their Honours emphasised, at [32], that it was " one of the most fundamental aspects of the system of justice in Australia [ensuring] public confidence in the administration of justice ". Their Honours noted that there were a number of recognised exceptions to the principle, but that this case did not fall within those exceptions.

19 Their Honours next dealt with the administration of justice. It is sufficient for present purposes to refer to their Honours' reference that the administration of justice involves " the public interest that the court should endeavour to achieve effectively the object for which it was appointed to do justice between the parties ": see Australian Broadcasting Commission v Parish (1980) 43 FLR 129.

20 The Honours then had regard to the effect of " parties' agreements " and in particular, the provision of cl 20 in the Deed, whereby they agreed that disputes under the Deed would be dealt with by confidential mediation, and if that failed, by confidential arbitration. The importance of party autonomy in modern arbitration law was acknowledged. However, the Honours pointed out, at [45], that not everything associated with a private arbitration was confidential. Their Honours noted that even where an arbitration has been conducted in private pursuant to a court order, the fact that it was held in private is only a factor relevant to the question whether the proceedings should be heard in open court, once a court's supervisory jurisdiction was invoked.

21 In reaching their conclusion that the suppression orders of Tobias AJA should be discharged, their Honours, at [48], first had regard to the test to be applied on an application for review under the Supreme Court Act , s 46(4). The test is that it must be demonstrated that the judge erred in principle or that the judge's decision was plainly wrong. At [49], their Honours considered that Tobias AJA erred in that he failed to approach the question whether a suppression order should be granted on a basis which had the least adverse impact upon the open justice principle.

22 Their Honours also considered that his Honour erred in a further three respects; first, in treating the fact of the parties' agreement in cl 20 as effectively determining the question whether a suppression order should be made; secondly, in failing to give adequate weight to the fact that the proper conduct of trustees is a matter which warrants close public scrutiny and was a proper factor to take into account in determining whether a suppression order was necessary; and thirdly, in concluding that the failure to make a suppression order would render the proceedings nugatory.

23 As to this third matter, their Honours stated:

"53 ... Disclosure of the information the subject of the suppression order will not 'cause an entire destruction of the whole matter in dispute': Hogan v Hinch (at [21]). The trustee, if successful in obtaining a stay, will have the benefits of the substance of the allegations and matters concerning the trust being considered in a private arbitration rather than a public forum. This would seem to us to be the primary purpose of the arbitration/mediation provisions in the Deed. Such advantages remain irrespective of the fact that the allegations made against her have been publicly disclosed.

54 Tobias AJA's concern that if a suppression order was not made the allegations against the trustee would be in the public domain but her response would be confidential did not, in our view, demonstrate the order was necessary: 'In general ... parties and witnesses have to accept the embarrassment and damage to their reputation and the possible consequential loss which can be inherent in being involved in litigation': R v Legal Aid Board; Ex parte Kaim Todner (a firm) (at 978) ... It is the price of open justice that allegations about individuals are aired in open court. Such individuals, particularly if they are parties, can make their response to such allegations public in the same forum. The media, the vehicle by which such allegations are usually published to the world would be obliged to publish any response to ensure any report of the proceedings was fair: s 29, Defamation Act 2005."

24 Their Honours concluded, at [55], that suppression of the information of the nature of that caught by the suppression orders of Tobias AJA would undermine, rather then ensure, public confidence in the administration of justice.

25 Young JA, in his separate reasons, noted at, [114], that there was no question in this case of the protection of a property right in the nature of confidential information or trade secrets. Rather, there was a contractual right between the parties for which the protection was sought.

The application for a stay of the orders

26 The following principal issues arose on the stay application:

(1) The proper test to be applied by this Court in determining whether to grant a stay of proceedings pending an application to and the outcome of an application for special leave to the High Court, when it was alleged that the stay was necessary to preserve the subject matter of the litigation.

(2) Whether the rights of the Trustee interests will be completely sterilised unless a stay is ordered.

(3) Whether the Trustee interests' prospects on a special application would be diminished if the subject matter underpinning the special leave application has been rendered futile.

(4) The prospects of success on a special leave application.

(5) Whether the suppression orders of Tobias AJA were beyond power.

Proper test for determining whether a stay should be made

27 Both interests accepted that this Court has the power to grant a stay of its orders pending the making and determination of an application for special leave to the High Court.

28 The Trustee interests submitted that the test was not a high one, relying upon statements made in John Fairfax and Sons Limited v Kelly (No 2) (1987) 8 NSWLR 510, Adeels Palace Pty Ltd v Moubarak (No 2) [2009] NSWCA 130; and International Litigation Partners Pte Ltd v Chameleon Mining NL [2011] NSWCA 186.

29 In the John Fairfax case, the Court (Kirby P, Mahoney and McHugh JJA, noted that it was required to deal with stay applications pending the making of applications for special leave and stated that the Court would normally grant a stay unless the application for special leave to appeal was considered to be " plainly hopeless ".

30 In Adeels Palace , Hodgson JA observed that it had to be established that there was a reasonable basis for the application for special leave. His Honour noted that this was " not a high threshold ", because the stay is initially for a relatively short period until the High Court deals with the application for special leave.

31 In International Litigation Partners , Basten JA stated, at [16], that this Court, in determining whether to grant a stay, was required " to do no more than to assess whether there are reasonable prospects of an application being successful ".

32 The Beneficiary interests and the Media interests submitted that the test was more stringent and was the same test as the High Court applies in determining whether to grant a stay of a court of appeal's orders pending the determination of a special leave application. That test was stated by Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; 161 CLR 681, especially at 684-685:

"A stay to preserve the subject matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted.

...

In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court's discretion. In each case when the Court is satisfied a stay is required to preserve the subject matter of the litigation, it is relevant to consider - first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the Court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies."

See also Advanced Building Systems Pty Ltd v Ramset Fasterners (Aust) Pty Ltd [1997] HCA 24; 145 ALR 121 per McHugh J at 122-123.

33 Counsel for the Media interests also submitted to the Court that there is a decision of the Victorian Court of Appeal, Palmer v Permanent Custodians Ltd [2009] VSCA 164, which applied the same test as the High Court applied when determining whether to grant a stay pending the determination of a special leave application. The Media interests contended that in accordance with the principles in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 81 ALJR 1107, this Court should follow the decision of the Victorian Court of Appeal.

34 In making this submission, counsel for the Media interests referred to a number of decisions of judges of this Court which did not accord with the principle in Burgundy Royale , and which, it was submitted, ought not be followed. Those decisions were White v State Bank of NSW [2002] NSWCA 408 per Giles JA; Miller v Nationwide News Pty Ltd [2008] NSWCA 261 per McColl JA; Saleh v Romanous [2010] NSWCA 373.

35 It is neither necessary nor appropriate for me to seek to determine definitively on this application the test that ought to be applied. Nor am I required to follow Palmer v Permanent Custodians as, contrary to the submission made, that decision does not decide that the test to be applied by an intermediate court of appeal in determining whether to grant a stay is the same as that applied by the High Court.

36 The Court's reasoning in Palmer v Permanent Custodians which is presently relevant is to be found at [56]-[57], as follows

"[56] Although some states have modified the traditional test applicable to a stay, this Court's jurisdiction to grant a stay in a conventional case, whether pursuant to the rules or its inherent jurisdiction, is still characteristically invoked by special or exceptional circumstances, which encompass the likelihood that the appeal will otherwise be rendered nugatory. Such principles generally accord with Brennan J's description of the jurisdiction identified in Jennings. No fundamental difference is readily apparent.

[57] It is, however, unnecessary to determine whether there are any differences in the basis or nature of the jurisdiction or the factors relevant to its exercise between the High Court and intermediate appellate courts or between intermediate courts inter se, because, in the present case, several fundamental considerations weigh against the present application."

37 It should also be noted that there has been some recognition in the High Court that the test applied by intermediate courts in some jurisdictions of Australia is less stringent than the test applied by the High Court itself: see Bryant v Commonwealth Bank of Australia [1996] HCA 3; 134 ALR 460 at 463 per Kirby J.

38 Finally, I should refer to M inister for Local Government & Anor v South Sydney City Council (No 3) [2002] NSWCA 327. There, Spigelman CJ appears to adopt the test propounded by Brennan J in Burgundy Royale : see at [10]. However, in Miller v Nationwide News McColl JA observed, at [25], that it did not appear that the Sibuse line of authority had been referred to the Chief Justice: see Sibuse Pty Limited v Shaw (No 2) (1988) 13 NSWLR 125. McColl JA noted that Sibuse affirmed a less stringent test that that propounded in the High Court.

Prospects of obtaining special leave

39 Although I have taken the view that I am not required to follow Palmer v Permanent Custodians , the question remains as to what test should be applied.

40 It was submitted on behalf of the Trustee interests that, in accordance with the principle in John Fairfax and Sons Limited v Kelly (No 2) they ought to be granted a stay because it could not be said that an application for special leave was utterly hopeless. In further support of this aspect of the case, the Trustee interests submitted that the litigation raised a matter of public importance, being the interrelationship between the common law right of parties to contract to keep their disputes confidential and the provisions of the Act.

41 Senior counsel for Ms Rinehart also submitted that there was no genuine disadvantage to any of the parties, should a stay be granted; the media has an entitlement to be heard pursuant to s 9(2) of the Act; no person's legal rights were diminished if the stay was granted; and there was no detriment to the public interest.

42 Senior counsel submitted that, by contrast, unless a stay was granted, there would be prejudice to the proper administration of justice, because the protection of the contractual right of confidentiality would be lost. It was submitted that such a result would in fact be prejudicial to the proper administration of justice. As I understand the submission, this was another way of saying that unless the stay was granted, the confidentiality of the dispute would be lost and the appeal would be rendered futile.

43 Senior counsel for the Beneficiary interests submitted that the prospects of special leave were weak. He pointed out that the Court reviewing Tobias AJA's orders was required to be satisfied that his Honour had made an error of law or was plainly wrong. The Court had found that his Honour was plainly wrong. It was also submitted that the majority had carefully analysed the key elements of the statutory language and no error had been demonstrated in their Honour's reasoning.

44 Senior counsel for the Beneficiary interests also submitted that should the Court accede to the Trustee interests' stay application, its orders would not be in conformity with s 12(2) of the Act, which provides:

"In deciding the period for which an order is to operate, the court is to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made."

45 Senior counsel contended that if the stay was granted and assuming that an application for special leave was made, the suppression order was likely to be in place for months and that that was inconsistent with the intent behind s 12. I consider that this submission was put too highly. If there is an interest to be protected, the protection required is the period up to the time of expiry for the filing of the special leave application and, if filed, the determination of the application. This is in accordance with the legislative intent in s 12.

46 Counsel for the Media interests submitted, in addition to establishing that the test to be applied in determining whether to grant a stay was that propounded in Burgundy Royale , that the Trustee interests had not established that the balance of convenience lay in granting a stay. In particular, they contended that the effect of granting a stay would be to continue the suppression orders to protect the personal contractual rights of two individuals, as against the public right to open justice.

Conclusion

47 Although the Media interests' reliance on Palmer v Permanent Custodians was misguided, the question remains as to what test I should apply. As the foregoing short summary of the parties' submissions indicates, the parties align themselves with the test that is most suitable to their respective endgames. It is necessary, therefore, for me to decide which test to apply in the determination of the stay application. However, it needs to be on record that there is an issue as to the correct test to be applied and a court other than one constituted by a single judge may be required to determine it.

48 Given that John Fairfax and Sons Limited v Kelly (No 2) has been fairly consistently followed in this Court and is a decision of a fully constituted appeal court, it is appropriate that I follow it. There is a certain pragmatism in the approach of the Court in that case. It recognises that there are cases that are granted special leave, " against the odds "; and it does the least harm to the applicant for special leave.

49 There is also a certain pragmatism in my adopting this approach. The Court is in recess, and although the Court's resources are available for all urgent matters, there are now only two working days before Christmas. There would be considerable difficulties in assembling a Court of three, or, should it be considered necessary, a Court of five judges, with the attendant requirements of a full court staff, at any time, either in the next two days, or in the next two weeks, which is traditionally a peak holiday period in the legal profession generally. The same pragmatism has driven the conclusion that I have reached on the outcome of the application.

50 I should also add that the same difficulty attaches to immediately assembling a Court to review my decision pursuant to s 46.

51 In dealing with the prospects of obtaining special leave, I have reached the conclusion that those prospect are not strong. The reasoning of the majority which led to the discharge of the suppression orders of Tobias AJA is, in my opinion, likely to be upheld. With respect to their Honours, I consider that their reasoning is correct.

52 It is then necessary to consider the prejudice that is likely to be suffered by the opposing parties to the dispute. I can see no practical prejudice at all to either of the Beneficiary or Media interests in granting a stay in the short term. Although the media has an interest in publishing matters of public importance and matters that are considered to be of general interest to the public, a temporary suspension in the ability to engage that interest will render no substantive harm.

53 Whether there is likely to be prejudice to the Trustee interests is more problematic. The Trustee interests have the advantage of various juristic protections, including the law of defamation, to which the majority referred in the Review judgment. The Media interests have no common law or statutory right to access the Court file and would need the leave of the Court to do so. It is also unlikely that the Beneficiary interests would be at liberty to provide to the Media interests copies of the pleadings. To do so may expose them to the law of defamation and may put them in breach of their implied obligation to the Court in accordance with the principle in Hearne v Street [2008] HCA 36.

54 However, the Trustee and Beneficiary interests have agreed to bind themselves contractually to a Deed which provides for confidentiality in respect of a particular area of dispute which they have chosen to carve out of their financial relationships, namely, " disputes under the Deed ". As things stand at the present time, there is a binding decision of the Supreme Court, the effect of which is that the Beneficiary interests are not in breach of that contractual obligation. That decision is presently subject to an application for leave to appeal which is to be heard on 8 February 2012. Should Brereton J have been in error in his determination, the Trustee interests will have lost some, but not all, of the protection they sought to achieve by the Deed: see review judgment at [53].

55 It is for this last reason, namely, that the Trustee interests will have lost some of the protection under the Deed, that I have decided that, on balance, there may be a prejudice to the Trustee interests which are sufficient to require a short stay so that they are able to determine whether to apply for special leave to appeal to the High Court. In accordance with the rules of the High Court, any such application must be made by 16 January 2012.

56 I propose to grant a stay of the orders made on 19 December up until and including 13 January 2012. That date has been chosen, as the Court will be able to sit as a court of three judges on that day to determine whether any further stay should be granted. That Court will, most likely, comprise two of the judges who determined the review application, as well as myself. The Trustee interests may, of course, seek a stay from the High Court if it considers that course appropriate.

57 Accordingly, the order I make is as follows:

1. Stay order (1) made on 19 December 2011 up to and including 13 January 2012.

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Decision last updated: 21 December 2011