Originally Posted by
Lead Balloon
Actually, it is “illegal” unless and until the higher court overturns the lower court’s decision. What do you think the position would have been if the High Court had refused Qantas leave to appeal? The majority of judicial decisions are not appealed to any higher court and the great majority of applications for leave to appeal a decision to the High Court are refused. (Some stats on applications to the:
High Court.)
A higher court can effectively delay the operation of a lower court decision, pending the outcome of an appeal, but I think that’s a matter of discretion in most if not all cases. Are you aware of any authority for the proposition that the grant of leave to appeal to the High Court ‘automatically’ stays the effect of the decision appealed against? I may have missed something.
But, as you say, the High Court could ultimately find that the Federal Court got it wrong.
Yes, you are correct, I was a little sloppy in my wording. Of course, the High Court decision will render it 'legal' or it will stay 'illegal' depending on their decision. What I was trying to say I guess is that it's not settled until the final decision now it has been accepted to be heard by the High Court.