PARTIES:					ROBERT WILLIAM SOMERVILLE

						v
			
						THE LAW SOCIETY OF THE NORTHERN TERRITORY

TITLE OF COURT:			FULL COURT OF THE SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:				ORIGINAL

FILE NOS:					SC No.17 of 1995

DELIVERED:				Darwin 2 March 1995 

HEARING DATES:				1 March 1995

JUDGMENT OF:				Kearney, Thomas and Gray JJ

CATCHWORDS:

APPEAL - practice - stay by Full Court pending application
	for special leave to appeal to High Court - relevant considerations - whether applicant must show  "substantial prospect" that special leave will be granted, or merely an arguable case - whether exceptional circumstances or an appropriate case for a stay must be shown to warrant a stay - relevance of need to preserve subject matter of the litigation - significance to balance of convenience of right to apply for special leave 

	Legal Practitioners Act (NT), s30

	Sibuse Pty Ltd v Shaw [No 2] (1988) 13 NSWLR 125, followed
	Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] (1986) 161 CLR 681, referred to
	Re Monks and Federated Ironworkers' Association; ex p. Australian Building Construction Employees and Builders' Labourers Federation (1981) 34 ALR 208, referred to 
	Manfal Pty Ltd (in liq.) v Trade Practices Commission (1990) 65 ALJR 256, referred to
	Re Moore; ex p. Pillar (1991) 103 ALR 11, referred to
	Elspan International Ltd v Aerospatiale Holdings Ltd (1992) 67 ALJR 177, referred to
	Rahme v Commonwealth Bank of Australia (1993) 68 ALJR 53, referred to
	Elliott v Seymour (1993) 68 ALJR 173, referred to
	Smith Kline & French Laboratories (Australia) Ltd v Commonwealth of Australia (1991) 103 ALR 117, applied
	Jesasu Pty Ltd v Minister for Mineral Resources (1987) 11 NSWLR 110, followed
	Enterprise Gold Mines NL v Mineral Horizons NL (No 1) (1987-88) 52 NTR 13, followed

JURISDICTION, PRACTICE AND PROCEDURE - refusal to revoke Law
	Society's suspension of practising certificate - application for special leave to appeal to High Court - whether inherent jurisdiction in Full Court to stay Law Society's suspension pending determination by High Court of special leave application

	Legal Practitioners Act (NT), ss29(2) and (5) 30

	Dwyer v National Companies & Securities Commission (1988) 15 NSWLR 285, followed
	Herron v McGregor (1986) 6 NSWLR 246, followed

PRACTICE - stay by Full Court pending determination of
	application for special leave to appeal to High Court - relevant considerations - whether appellant must show "substantial prospect" that special leave will be granted, or an arguable case - whether exceptional circumstances or merely an appropriate case for a stay must be shown - relevance of need to preserve subject matter of the litigation - significance to balance of convenience of right to apply for special leave to warrant a stay

	Legal Practitioners Act (NT), s30

	Sibuse Pty Ltd v Shaw [No 2] (1988) 13 NSWLR 125, followed
	Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] (1986) 161 CLR 681, referred to
	Re Monks and Federated Ironworkers' Association; ex p. Australian Building Construction Employees and Builders' Labourers Federation (1981) 34 ALR 208, referred to 
	Manfal Pty Ltd (in liq.) v Trade Practices Commission (1990) 65 ALJR 256, referred to
	Re Moore; ex p. Pillar (1991) 103 ALR 11, referred to
	Elspan International Ltd v Aerospatiale Holdings Ltd (1992) 67 ALJR 177, referred to
	Rahme v Commonwealth Bank of Australia (1993) 68 ALJR 53, referred to
	Elliott v Seymour (1993) 68 ALJR 173, referred to
	Smith Kline & French Laboratories (Australia) Ltd v Commonwealth of Australia (1991) 103 ALR 117, applied
	Jesasu Pty Ltd v Minister for Mineral Resources (1987) 11 NSWLR 110, followed
	Enterprise Gold Mines NL v Mineral Horizons NL (No 1) (1987-88) 52 NTR 13, followed

REPRESENTATION:

	Counsel:

	Applicant:				S.R. Southwood
	Respondent:				J.E. Reeves

	Solicitors:

	Applicant:				DeSilva Hebron
	Respondent:				Law Society of the Northern Territory

JUDGMENT CATEGORY:				C

JUDGMENT ID NUMBER:				kea95010.dis

NUMBER OF PAGES:				19

kea95010J

IN THE FULL COURT OF THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA

No. AP17 of 1995

						BETWEEN:

						ROBERT WILLIAM SOMERVILLE
							Applicant

						AND:

						THE LAW SOCIETY OF THE NORTHERN TERRITORY
							Respondent

CORAM:  KEARNEY, THOMAS AND GRAY JJ

	REASONS FOR DECISION

	(Delivered 2 March 1995)

KEARNEY J:
		The application for a stay
		On 28 February 1995 the applicant filed a summons in this Court seeking an order that the suspension of his   practising certificate by the Law Society be stayed, pending    the hearing of his application for special leave by the High Court.  We were informed on 1 March by Mr Southwood of      counsel for the applicant that the application for special    leave is not yet listed to be heard before the High Court, but  may be heard in May; and that an application for a stay is   listed to be heard in Sydney later this morning before    Mason CJ.   The Court convened early yesterday to hear the application of 28 February.   Submissions were made by Mr Southwood and Mr Reeves of counsel for the Law Society.  We rule this morning on the application.

		The background to the application
		On 18 January 1995, in the exercise of its powers under s27(1)(b)(i) of the Legal Practitioners Act (herein "the Act"), the Law Society of the Northern Territory suspended for a period of 3 months the applicant's certificate to practise as a legal practitioner.  It directed that the suspension take effect from 25 January.
		On 24 January the applicant filed a summons in this Court seeking an order under s29(2) and (5) of the Act that the Law Society's suspension of his practising certificate be revoked.  The jurisdiction invoked stems from s22 of the Supreme Court Act read with s29 of the Act.  
		On 14 February, after hearing counsel for the applicant and the Law Society on 3 and 9 February, the Court refused to revoke the suspension, for reasons then published.  During the course of the hearing the Court made interim deeming orders under s30 of the Act, the nett effect of which was that the suspension of the practising certificate took effect from 14 February.
		Following judgment on 14 February the applicant's then counsel, Mr Hebron, applied orally for a further deeming order or for a stay of the judgment, stating that the applicant intended to approach the High Court for special leave to appeal; this application was refused.  The deeming power in s30 of the Act is of an interim nature; it applied only until judgment was delivered on 14 February.  A stay of the decision refusing the relief sought would be of no practical effect.  It may be noted that the relief then sought is not the same in terms as that now sought in the summons of 28 February; see pp1 and 6.
		On 20 February the applicant filed in the Registry of the High Court an application for special leave to appeal from the judgment of 14 February. For events thereafter, see p1.
		Considerations
		First, as to the proper approach to a stay by this Court ancillary to a pending application for special leave to the High Court.  In this regard I respectfully adopt the observations of Kirby P, dissenting in the result, in the Court of Appeal in Sibuse Pty Ltd v Shaw [No 2] (1988) 13 NSWLR 125, at pp126-128:-
	126.	"The relief sought [there a stay of execution of an order by the trial judge] is given, essentially, for the purpose of protecting the utility of the appellate process. It is thus offered as an attribute of the administration of justice in our society.  Save in a respect which will be mentioned, it is not concerned with the merits of the appeal as such.

		The stated purpose of the stay was to protect the position of the claimant whilst it prosecuted its proposed application for special leave to appeal to the High Court of Australia against the order of this Court.

		- - -

	127.	Until 1987, this Court had a fairly uniform approach to applications for a stay such as the claimant now makes. Save for the exceptional circumstances where a short stay was necessary to provide protection for a day or so, it was the practice of the Court normally to deny such applications.  This left it to a justice of the High Court of Australia, protecting the process of that Court, to decide whether or not he or she would grant a stay or other relief in support of a summons for special leave to appeal from the order of this Court.

		In Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] (1986) 161 CLR 681, Brennan J expressed the view that applications for a stay as ancillary to proceedings in the High Court, should first be made to the court from which special leave to appeal was sought.  His Honour said that such courts should not feel inhibited in considering such applications.  He stated that such courts would often have an advantage over the High Court of being familiar with the matter and therefore able to tailor their orders to meet the particular fact situations of each case.

		After these observations were reported, the usual practice of this Court was presented for review in John Fairfax & Sons Ltd v Kelly [No 2] (1987) 8 NSWLR 510.  - - - It acknowledged that there were special difficulties in applications to the High Court from outlying parts of the Commonwealth (such as was the case in Jennings Construction Ltd v Burgundy Royale, an appeal from the Northern Territory). - - -

		The Court also mentioned the added consideration that appeals now lie to the High Court from this Court only by special leave.  There are no appeals as of right from this Court or from other Federal and State Full Courts.  As disclosed in the reports to Parliament of the High Court of Australia, the numbers of successful applications for special leave to appeal are comparatively few.  - - -

		From these figures it is plain that most applications for special leave to appeal to the High Court from this Court are either refused or discontinued.  Yet, for those who seek such special leave, the protection of a stay of execution of the judgment challenged (and sometimes other relief) can often be vital.  Without such relief, the utility of the facility of seeking special leave to appeal to the High Court, which is provided by the law, may be frustrated or rendered nugatory in the particular circumstances of the case.

		In the light of an analysis of these competing considerations, and of the observations of Brennan J in Jennings Construction Ltd v Burgundy Royale, the
	128.	Court in John Fairfax & Sons Ltd v Kelly [No 2] indicated (at 512) a change from its former practice.  It did so in these terms:

			"... mindful of the position of the High Court of Australia and of the observations of Brennan J to which we should respond, it is clear that the Court should adopt a more discriminating approach to applications for the grant of a stay pending application for special leave to the High Court, than it has in the past.

			Accordingly, upon signification to the Court of the intention of a party to an appeal to this Court that it will seek special leave to appeal to the High Court of Australia, this Court will in future not insist, as in the past, that any such stay (except in exceptional circumstances) should be granted by a justice of the High Court of Australia.  Instead the Court will normally grant a stay of twenty-one days from the date of the judgment of this Court, to permit an application to be made for special leave to appeal to the High Court of Australia.  Such a stay will normally endure until such application is made or, if leave be granted, the appeal pursuant to such leave is disposed of by the High Court or until the High Court itself otherwise orders.

			Any such stay, granted by this Court, will be conditional upon:

			(i)	the application for special leave being made in accordance with the rules of the High Court of Australia;

			(ii)	an undertaking by the applicant to prosecute with due diligence; and

			(iii) where appropriate, undertakings being
				given as to any damages suffered in consequence of the stay by the opponent.

			Necessarily, the above course will not modify the discretion of the Court of Appeal to refuse such a stay where, for example, it deems such an application to be plainly hopeless. Nor will it affect this Court's consideration of the position of the opponents when determining any conditions to be imposed or whether it is proper, in the circumstances to decline the stay, requiring any such stay to be granted, as in the past, by a justice of the High Court."

		The principles stated in John Fairfax & Sons Ltd v Kelly [No 2] have been applied in a number of cases in the Court since that judgment was handed down: see, eg, Jesasu Pty Ltd v Minister for Mineral Resources (1987) 11 NSWLR 110.  It was my view that the principles were applicable to the present application and warranted the stay sought." (emphasis mine)
The majority (Hope and Priestley JA) observed at p132 that the High Court "would not be bound to approach an application in the nature of a stay on precisely the same basis as this Court."
		The relief presently sought is not a stay of execution of the Court's judgment of 14 February, though Mr Southwood initially sought that as well.  Conceptually, since the order of 14 February was simply that the application to revoke the Law Society's suspension be refused, I would have difficulty with an application to stay its execution.  I do not think that such a stay could have any practical effect;  it would leave the Law Society's suspension of 24 January in full force and effect.  A stay of execution of a Court order refusing relief will generally be pointless.  The relief presently sought is a stay of the suspension ordered by the Law Society on 18 January.  Mr Reeves rightly observed that it was akin to seeking an injunction pending appeal.  The practical effect of granting that stay would be that the applicant's practising certificate would remain in full force and effect until his application for special leave to appeal against the judgment of 14 February, and any consequent appeal, are determined by the High Court.  Thus the subject matter of the litigation would be preserved and the "utility of the appellate process" protected.
		The applicant has an application for a stay pending in the High Court.  In that connection, the applicant clearly had in mind when making the later application of 28 February for a stay to this Court the observation by Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No.1] (supra) that when an application for special leave is pending before the High Court, jurisdiction to stay proceedings so as to preserve the subject matter of the litigation may be exercised by the Court below, and it is to that court that an application to stay should first be made.  As a corollary, his Honour said that in these circumstances one factor material to the exercise by the High Court of its inherent and "extraordinary" jurisdiction to stay, exercisable only in "exceptional circumstances", is whether "the applicant has failed to take whatever steps are necessary to seek a stay from the Court in which the matter is pending [so as to preserve the subject matter of the litigation]."
		Mr Reeves rightly conceded that if the "subject matter of the litigation" were to be preserved, a stay was required; otherwise, the 3-month period of suspension would have been served before the application for special leave came on before the High Court.  To my mind that is an important factor militating in favour of a stay; otherwise, the application for special leave would be rendered nugatory, and the appellate process cease to have "utility" in this case. 
		Mr Reeves opposed the application for a stay primarily on the basis that in Jennings Construction Ltd v Burgundy Royale Investments Pty. Ltd [No 1] (supra) at p685 Brennan J had stressed the need for the applicant for a stay in the High Court to show a "substantial prospect that special leave will be granted".  Mr Reeves also submitted, as regards the balance of convenience, that the question of staying the suspension of the applicant's practising certificate involved the public interest, and this should be given greater weight than the effect of the suspension on the applicant, which was merely a loss of income to him.  I turn to examine the question whether "substantial prospect" of success in obtaining special leave is a requirement when the application for a stay is made in this Court.  First, the position in the High Court.
		[His Honour then referred to Re Monks and Federated Ironworkers' Association; ex p. Australian Building Construction Employees and Builders' Labourers Federation (1981) 34 ALR 208 at pp211-2, per Mason J; Manfal Pty Ltd (in Liq) v Trade Practices Commission (1990) 65 ALJR 256 at pp257-8, per Toohey J; Re Moore; ex p. Pillar (1991) 103 ALR 11 at p14, per Dawson J; Elspan International Ltd v Aerospatiale Holdings Ltd (1992) 67 ALJR 177 at p178, per Gaudron J; Rahme v Commonwealth Bank of Australia (1993) 68 ALJR 53 at pp54-5, per Deane J; and Elliott and ors. v Seymour (1993) 68 ALJR 173 at p176, per Gaudron J. He continued:-] 
		It seems clear from these authorities that where a stay is sought in the High Court an assessment is made of the prospects of success of the application for special leave, which must be ranked as "substantial" before a stay will be granted.  However I consider that that approach does not obtain when the Court below is considering the grant of a stay pending the hearing by the High Court of an application for special leave; I consider that the approach in that case is as outlined in Sibuse Pty  Ltd v Shaw [No 2] (supra) - see p5. 		
		There is no statutory power of which I am aware now to stay the suspension ordered by the Law Society on 18 January, pending the High Court's consideration of the application for special leave to appeal.
		I have no doubt that this Court has inherent jurisdiction, where an application is made to the High Court for special leave to appeal, to stay the suspension ordered by the Law Society on 18 January, and this jurisdiction is not affected by the existence of the express but interim deeming power in s30 of the Act. Mr Reeves rightly conceded the point.  See Dwyer v National Companies & Securities Commission (1988) 15 NSWLR 285.  In general, I consider that the observations by McHugh JA (as he then was) in Herron v McGregor (1986) 6 NSWLR 246 at 250 are applicable, viz:-
		"The jurisdiction of a court includes every power necessary to enable it to act effectively within the jurisdiction conferred on it by statute or charter: Connelly v Director of Public Prosecutions [1964] AC 1254 at 1301; John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465.  The jurisdiction of this Court extends to the supervision and protection of proceedings in inferior courts and tribunals: John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 363.  The principle of necessity is an illustration of the common law doctrine that everything necessary to the effectual exercise of a power is included in its grant."
In Dwyer v National Companies & Securities Commission (supra), McLelland J said at p287:-
		"Since it rests on necessity for the purpose of preventing injustice, the extent of the power [to stay] is commensurate with the requirements of the necessity which calls it into existence."
		The applicant has, I consider, an arguable case on his application for special leave.  As indicated at pp8-9, it is unnecessary in my opinion for this Court to seek to make a closer assessment of his prospects of success in that regard; that could be embarrassing, as the Court of Appeal said in John Fairfax & Sons Ltd v Kelly [No.2] (1987) 8 NSWLR 510 at 512.  Further, the very nature of the decision on an application for special leave is such as to militate against seeking to make a closer assessment.  In Smith Kline & French Laboratories (Australia) Ltd v Commonwealth of Australia (1991) 103 ALR 117 at 131, the Full Court of the High Court said:-
		"- - - an application [for special leave to appeal] has special features which distinguish it from most other legal proceedings.  It is a long-established procedure which enables an appellate court to control in some measure or filter the volume of work requiring its attention.  Ordinarily, it results in a decision which is not accompanied by reasons, or particularly by detailed reasons.  It involves the exercise of a very wide discretion and that discretion includes a consideration of the question whether the question at issue in the case is of such public importance as to warrant the grant of special leave to appeal: s35A of the Judiciary Act.  To that extent at least, the court, in exercising its jurisdiction to grant or refuse special leave to appeal, gives greater emphasis to its public role in the evolution of the law than to the private rights or interests of the parties to the litigation: Morris v R (1987) 74 ALR 161; 163 CLR 454, per Dawson J at 475."
		I consider that a stay is necessary to preserve the subject matter of the litigation.  A refusal to stay will render nugatory any appeal, should special leave be granted.  I do not consider on balance that a grant of the order sought will cause damage to the body politic though it is quite true, as Mr Reeves pointed out, that the Law Society is a statutory body and here exercised its power to suspend with a view to protecting the public interest.  In this regard this is a case very different on its facts from Sibuse Pty Ltd v Shaw [No.2] (supra) where the majority of the Court of Appeal considered that the grant of a stay would probably have permitted the continuance of criminal activity.  
		I consider that the balance of convenience clearly points to the relief sought being granted.  The position in this regard is somewhat akin to that set out by Kirby P in the injunction case of Jesasu Pty Ltd v Minister for Mineral Resources (1987) 11 NSWLR 110 at p117, viz:-
		"In the final analysis, I believe that the governing consideration is the importance to be attached to the Court's defending the usefulness of litigants coming here, to exercise an entitlement to appellate review which the law provides.  In previous times, as in stays, courts were less inclined than they now are to grant relief in support of that appellate right.  This was partly because, appeal being unknown to the Common Law, early authorities were less tender than they now usually are to the claims of appellants in the preservation of the status quo.  The change of approach was indicated by this Court in Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685.  It is true that that case dealt with stays.  But the same point is equally true of an injunction such as the claimant seeks in the present circumstances.

		- - -

		However, where, as here, there is an appeal as of right to this Court which the appellant has exercised, where no more relief is sought than to preserve the status quo pending the outcome of the appeal, where the appeal appears to raise an arguable point, where no special prejudice is alleged, where the Court could deal with the questions promptly and where the failure to give relief may involve serious (and arguably irreversible) damage to the appellant and loss of valuable rights, the balance of convenience favours the issue of an injunction upon appropriate conditions.  This is not an exercise of judicial "caprice": see Beddow v Beddow (1878) 8 Ch D 89 at 93.  It is the resolute defence by a court of its own process." 
There his Honour was dealing with the grant of interlocutory relief by the Court of Appeal itself, pending its determination of the appeal.  But the same approach holds, I consider, when this Court is considering a stay when there is an application for special leave to appeal.  See also the matters set out under the heading "Exceptional circumstances", and under "Balance of convenience" in the applicant's written outline of submissions for a stay; in my opinion they point to the balance of convenience as being in favour of the applicant.
		I do not consider that the applicant must make out special or exceptional circumstances to secure a stay; it is sufficient that he demonstrate an appropriate case to warrant the exercise of the discretion in his favour.  See Enterprise Gold Mines NL v Mineral Horizons NL (No 1) (1987-88) 52 NTR 13 at p20. In my opinion he has done so.

		Accordingly, I would grant the relief sought, in the following terms:-

		The applicant by his counsel having undertaken -
		(a)	diligently and expeditiously to prosecute his application of 20 February 1995 for special leave to appeal in accordance with the Rules of the High Court of Australia; and
		(b)	to serve the balance yet unserved of the period of suspension from practice as a legal practitioner ordered by the Law Society on 18 January 1995, if his application to the High Court for special leave to appeal, or a consequential appeal, is unsuccessful -
		it is ordered that until the High Court orders otherwise, the order made by the Law Society of the Northern Territory on 19 January 1995 suspending for three months the applicant's certificate to practise as a legal practitioner, is stayed with effect from 2 March 1995 and shall not come into effect until the hearing and determination by the High Court of his application for special leave to appeal, or, if special leave to appeal is granted, until his appeal is heard and determined by the High Court.

THOMAS J:

		I have had the benefit of reading the reasons for decision of Kearney J and I concur in his Honour's conclusions.

GRAY J:

		On 19 January 1995, the respondent suspended the applicant's practising certificate for three months.  On 23 January, pursuant to s29(5) of the Legal Practitioners Act ("the Act"), the applicant applied to this Court for an order revoking the suspension order.  This application was heard on 3 February and 9 February.
		On 3 February, the Court made an order pursuant to s30 of the Act that the applicant be deemed to be a person who holds a practising certificate.  This order was expressed to operate until the determination of the application under s29(5).
		On 14 February, the Court refused the application and delivered written reasons for its decision.  On that occasion the Court was told that the applicant was contemplating an application for special leave to the High Court.  An application was made for the continuation of the s30 deeming order or some other order which would enable the applicant to continue to practise.  The Court refused these applications.
		On 28 February, the applicant issued a summons returnable before this Court on 1 March seeking an order that "The suspension of the Applicant's practising certificate as a legal practitioner is stayed pending the applicant's application for special leave".
		An affidavit in support of the summons showed that on 20 February an application for special leave to appeal to the High Court was filed, together with a statement in support of the application.
		The Court assembled on 1 March at 8.30 am.  Mr Southwood of counsel appeared for the applicant and Mr Reeves of counsel appeared for the respondent.
		Mr Southwood stated that the applicant was willing to undertake to diligently prosecute his application for special leave.  Upon the basis of that undertaking, Mr Southwood sought an order, the effect of which would suspend the respondent's order of suspension until the determination of the application for special leave and, if successful, the appeal.
		The first order sought was an order staying the order made by this Court on 14 February.  Mr Southwood appreciated that a stay of that order would not produce the desired result and, accordingly, pursued the alternative order sought, namely, a stay of the suspension order of the respondent made on 19 January.
		I am prepared to assume, without deciding, that the inherent power of the Court extends to an order staying the execution of a decision of the respondent.  Such a power, the exercise of which is discretionary, should only in my opinion be exercised in exceptional circumstances.
		The decision of the respondent was based upon the conduct of the applicant in the course of a transaction which led to his conviction on 31 October 1994 of an offence under the Bankruptcy Act.  The respondent acted upon certain findings made by Martin CJ in the course of sentencing the applicant.  The respondent, in its reasons for decision, considered that the facts as found by the Chief Justice amounted to misconduct which rendered the applicant unfit to practise law and which justified the suspension imposed.
		The relevant findings of the Chief Justice were attacked before the respondent and before this Court.  It was said that the findings were not supported by the evidence.  The same attack is made in paragraph 17 of the statement in support of this application for special leave.
		When the application under s29(5) was heard, this Court was satisfied that the findings of the Chief Justice were open to him and that such findings amply supported the respondent's suspension order.

		There are a number of factors which, in my opinion, tell against the present application.  First, I would draw attention to the provisions of the Act.  Sections 22 to 26 deal with applications for practising certificates which applications are to be made to the respondent.  Section 27 authorises the respondent to refuse to issue a certificate or to cancel or suspend an existing certificate.  Section 29 allows a person whose certificate has been cancelled or suspended to seek a revocation of that order by the Court.  Section 30 authorises the Court to make an order that the applicant for revocation be deemed to be a person holding a practising certificate.  But, significantly in my view, the power to make such a deeming order is confined to the period between the making of the application for revocation and the determination of the application.  The Act does not give the Court any power to interfere with the operation of an order of the respondent except for the limited authority given by s30.  I consider that the provisions to which I have referred give expression to Parliament's intention that the respondent has the primary responsibility in relation to the fitness of persons to practise and that its orders in this regard should be subject to interference only in the limited manner provided for.

		In my opinion, there are sound reasons of public policy behind Parliament's expressed intention.  The making of a suspension order is conditional upon the respondent being satisfied, as it was in this case, that the person concerned is not a fit and proper person to practise law.  That being the case, the public interest requires that such a person not be allowed to practise, except for the limited exception provided for in s30.  This provision allows limited relief for a suspended practitioner to remain in practice pending a revocation application if he can persuade the Court to exercise its discretion in his favour.

		Despite this statutory scheme, we have been invited to make an order which would allow a person found to be unfit to practise law, to continue to practise over an indefinite period in the future.  I cannot accept that the Court's discretion should be exercised in a manner so inconsistent with the Parliamentary intention.  This is not a case of the Court staying its own order pending an appeal from it.  It is not a case of the staying of the decision of a tribunal from which an appeal is pending in this Court.  What is proposed is an order staying the operation of the order of a tribunal concerned with the regulation of the profession, which order has been upheld by this Court.

		As I have said, the result of a stay would be that a practitioner, having been found unfit for practice, would continue to practise pending the finality of his proceedings in the High Court.  This consequence is analogous to the state of affairs which deterred the Court of Appeal in NSW from granting a stay in Sibuse Pty Ltd v Shaw [1988] 13 NSWLR 125 after considering observations of Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No.1]  (1986) 161 CLR 681 at p684.

		In the latter case, Brennan J emphasised that an application for a stay pending an application for special leave to appeal "is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted" (at p684).  It is true that His Honour was dealing with an application to the High Court for a stay, but there seems to be no grounds for distinguishing that situation from the present.  His Honour also stated that it is relevant to consider whether "there is a substantial prospect that special leave will be granted".

		This, of course, is a difficult question but it seems to me that this case is devoid of any of the features which might be expected to lead to a grant of special leave.  The problems in the case are essentially questions of fact and no uncertain or difficult principles of law are concerned.

		The only substantial consideration which points to the grant of a stay is that otherwise the applicant will have to serve his period of suspension and, to that extent, his appeal will be rendered nugatory.  He will, if he succeeds in an appeal, have the stigma of the suspension order removed.  This, no doubt, is an important consideration and his appeal is by no means without point, even in the absence of a stay.  The disadvantage of having to serve three months suspension is, essentially, economic.  It is a consideration which does not make weight against the other matters I have mentioned.

		For the reasons I have endeavoured to express, I consider that to grant a stay would be an erroneous exercise of the Court's discretion.  Still less do I consider that any exceptional circumstances have been shown to warrant a stay.

		I would refuse the application.

	_______________________