Aldous v State of New South Wales

[2018] NSWCA 92

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Aldous v State of New South Wales [2018] NSWCA 92
Hearing dates:	30 April 2018
Date of orders:	30 April 2018
Decision date:	30 April 2018
Before:	Macfarlan JA
Decision:	(1)   Order that the appeal be expedited. (2)   Refer Mr Aldous to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance. (3)   Direct that the parties approach the Registrar with a view to an August 2018 hearing date being fixed for the hearing of the appeal. (4)   Until further order or determination of the appeal, whichever occurs first, stay the orders made by Balla DCJ on 14 December 2017. (5)   Order that the costs of this application be costs in the appeal. (6)   Otherwise dismiss Mr Aldous’ Notice of Motion filed on 20 April 2018.
Catchwords:	APPEAL – stay of enforcement of primary judgment – stay granted despite Court not being able to form view as to the prospects of the appeal succeeding
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 7.36, 36.16(3A), 36.16(3B)
Cases Cited:	Aldous v State of New South Wales [2014] NSWCA 280 Majak v Rose (No 4) (2017) 94 NSWLR 763; [2017] NSWCA 170
Category:	Procedural and other rulings
Parties:	Adrian Aldous (Applicant) State of New South Wales (Respondent)
Representation:	Counsel: Self-represented Applicant Mr B Lum (Solicitor)   Solicitors: Self-represented Applicant De Mestre & Company Solicitors (Respondent)
File Number(s):	CA 2017/384434
Decision under appeal	Court or tribunal: District Court Jurisdiction: Civil Date of Decision: 24 November 2017 Before: Balla DCJ File Number(s): DC 2016/335822

Judgment

1. HIS HONOUR: By Notice of Motion filed on 20 April 2018 Mr Adrian Aldous seeks a stay of orders made by Balla DCJ on 24 November 2017, and seeks various other orders.

2. Balla DCJ’s judgment was given in an action brought by the State of New South Wales to recover, pursuant to a deed signed by Mr Aldous and entitled “Deed – Undertaking to Repay”, amounts paid to Mr Aldous as a Partial and Permanent Disability benefit. Mr Aldous had been a police officer in the service of the State. By the Deed Mr Aldous undertook that if, as subsequently occurred, he received a Total and Permanent Disability benefit, he would repay the amount earlier received. The primary judge rejected various defences raised by Mr Aldous, including ones based on unconscionability, negligence and the Contracts Review Act. Her Honour found that the State was entitled to a judgment of $463,749.66 against Mr Aldous.

3. By his Notice of Appeal, Mr Aldous complains, first, that he was denied procedural fairness because he was not allowed to amend his pleadings, secondly, that the primary judge erred in not finding that the State was guilty of unconscionable conduct, breached a duty of care that it owed to Mr Aldous and breached a fiduciary duty that it also owed to him and, thirdly, that her Honour misunderstood the evidence led concerning Mr Aldous’ health. Mr Aldous is unrepresented and, unsurprisingly, I am unable to form any view on the limited material before me as to whether he has any prospects of success on appeal. It is however clear from his affidavit that he is unable to pay the judgment debt.

4. After the matter came on for hearing today, the State indicated that it consented to the grant of a stay. In my view, this consent was appropriately given. Whilst before granting a stay, the Court usually needs to be satisfied that the appeal is arguable, that is not always necessary (see Majak v Rose (No 4) (2017) 94 NSWLR 763; [2017] NSWCA 170 at [29]). What is to my mind significant in the present case is that an early hearing date is available and that the applicant might, due to intervening bankruptcy resulting from enforcement of the judgment, be precluded from exercising his right of appeal. It is therefore appropriate that a stay be granted.

5. As to other orders sought by Mr Aldous:

1. An order should be made pursuant to r 7.36 of the Uniform Civil Procedure Rules 2005 referring Mr Aldous to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance. Due to the nature of the issues raised by Mr Aldous, both the Court and Mr Aldous would be assisted by Mr Aldous obtaining legal representation.

2. In his Notice of Motion, Mr Aldous seeks an order staying a costs order made by Judge Barnes of the Federal Circuit Court of Australia on 23 February 2015. If there is some basis to stay that order, Mr Aldous would need to apply to the Federal Circuit Court to seek that. His affidavit suggests that he has already taken steps in that regard and the State has informed me that, at least for the time being, it does not propose to enforce that costs order.

3. In his Notice of Motion, Mr Aldous also seeks an order for costs in relation to earlier proceedings in this Court. In those proceedings, Mr Aldous claimed that he was denied procedural fairness when his defence in the action that was later heard by Balla DCJ was struck out. By judgment of 13 August 2014, this Court found in his favour (Aldous v State of New South Wales [2014] NSWCA 280) but expressly stated that it did not make any order for costs. It is not now open to Mr Aldous to seek an order for costs in respect of those proceedings as he did not seek a variation of the Court’s orders within 14 days of its judgment of 13 August 2014 (see r 36.16(3A) and (3B) of the UCPR).

6. For these reasons, I make the following orders:

1. Order that the appeal be expedited.

2. Refer Mr Aldous to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.

3. Direct that the parties approach the Registrar with a view to an August 2018 hearing date being fixed for the hearing of the appeal.

4. Until further order or determination of the appeal, whichever occurs first, stay the orders made by Balla DCJ on 14 December 2017.

5. Order that the costs of this application be costs in the appeal.

6. Otherwise dismiss Mr Aldous’ Notice of Motion filed on 20 April 2018.

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Decision last updated: 01 May 2018