Applying for a stay of proceedings
A stay of proceedings suspends the progress of litigation. Courts have inherent jurisdiction to stay proceedings and specific statutory powers. The applicant must demonstrate a sound basis for the stay and, in most cases, that the balance of convenience favours granting it.
This is an 8-step workflow for applying to stay (pause or halt) proceedings in an Australian court. A stay may be sought on various grounds including an arbitration clause, forum non conveniens, abuse of process, pending related proceedings, or to preserve the status quo pending an appeal.
Before you start
- Details of the proceedings to be stayed
- The ground for seeking the stay (arbitration clause, forum non conveniens, abuse of process, etc.)
- Any arbitration agreement or forum selection clause
- Details of any related proceedings in other courts or jurisdictions
The workflow
Identify the ground for the stay
Determine the legal basis for the stay application. Common grounds include: mandatory arbitration clause (International Arbitration Act 1974 s 7 or Commercial Arbitration Act s 8), forum non conveniens, abuse of process, multiplicity of proceedings, or pending appeal.
Act promptly and preserve the right to stay
File the stay application before taking any step in the proceedings that could be treated as a submission to the jurisdiction or waiver of the right to a stay. For arbitration-based stays, this is critical — taking a step in the proceedings can constitute a waiver.
Draft the interlocutory application
Prepare the notice of motion or interlocutory application seeking the stay. Clearly identify the ground relied on and the orders sought — whether a permanent stay, temporary stay pending arbitration, or stay pending determination of related proceedings.
Prepare the supporting affidavit
Draft the affidavit in support exhibiting the arbitration agreement (if applicable), details of the related proceedings or forum, evidence of prejudice if the proceedings continue, and any correspondence between the parties about the dispute.
Research the applicable legal test
For arbitration stays under the International Arbitration Act, the stay is mandatory if there is a valid arbitration agreement. For forum non conveniens, apply the Voth v Manildra test (clearly inappropriate forum). For abuse of process, consider the Williams v Spautz principles.
File and serve the application
File the application and supporting material with the court. Serve the other party with the application, affidavit, and any written submissions. Comply with the court's timetable for interlocutory applications.
Prepare written submissions and attend the hearing
Draft concise written submissions addressing the legal test, the evidence, and the balance of convenience. Attend the hearing prepared to address the court on why the stay should be granted and respond to the opposing party's arguments.
Implement the order or seek appellate review
If the stay is granted, ensure compliance with any conditions imposed. If refused, advise the client on prospects of an appeal or review and whether an urgent application to the appellate court for a stay pending appeal is warranted.
What you will have at the end
A court order staying the proceedings on the identified ground, with the matter paused until the arbitration is completed, the related proceedings are resolved, or the identified issue is addressed.
Common issues
- Delay in filing the stay application, resulting in a waiver argument
- Taking steps in the proceedings before filing the stay, particularly for arbitration-based stays
- Insufficient evidence of the competing forum or arbitration agreement
- Not addressing the balance of convenience and potential prejudice to the other party
- Overlooking conditions attached to the stay order (e.g. security for costs)
Run this workflow on a real matter
Quillio researches stay of proceedings case law, analyses arbitration clauses, and helps draft applications and submissions — cutting preparation time significantly. See /practice-areas/litigation-lawyers or start a free trial.
This workflow covers civil stay applications. Criminal proceedings, migration proceedings, and administrative law matters involve different stay principles and statutory frameworks.
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