There are several jurisdictions in Australia, each of them with its own Court of Appeal (in some jurisdictions known as a “Full Court”). Last week I was in the Court of Appeal of the Supreme Court of Victoria.
Victoria is a strange jurisdiction. Traditionally, solicitors in Victorian trials sit in front of counsel with their backs to the bench. Wigs are worn in civil cases in the County Court, but it is a contempt to wear a wig in a civil case in the Supreme Court. They have no robing rooms in the court buildings – counsel parade through the open streets around the courts fully gowned and tabbed – sometimes wigged – like black flamingoes returned to their waters after the rain.
The Court of Appeal was rather civilised, I thought, with judges who were smart, who had read the papers properly, listened carefully and courteously to the oral arguments and delivered their judgment promptly. These things are not always to be taken for granted.
I was there on a stay application, and I am pleased to say that I prevailed. Here was the issue. My clients have appealed from a money judgment. They wanted a stay of execution pending the appeal. Anomalously (for Australia) the Victorian test is that an applicant for a stay must show “special” or “exceptional” circumstances to justify a stay. Given that ubiquitously the norm is that stays are not granted, and that the applicant for a stay must show good reason to depart from that norm, it is not entirely clear what useful purpose is served by this additional and elsewhere redundant test. Anyway, our “special or exceptional” circumstance was that the plaintiff had obtained litigation funding, and charged the proceeds of the litigation to the funder. So that the judgement sum, if paid, would immediately be dissipated, thus, I argued, be effectively be beyond the recall of the court, and hence would potentially have rendered the appeal nugatory absent a stay.
The court agreed. As is their habit, they ordered the application for leave to appeal and the appeal to be heard together.
Solicitors have full rights of audience in these courts, and I was juniored by the very helpful Gene Sykes Bidstrup. But he did not get a mention in the Austlii law report. Maybe because he is a solicitor and not a member of the independent bar?