THE CHIEF JUSTICE: This is an application for the stay of a judgment given in the District Court for damages for professional negligence against a solicitor. The solicitor's concern is that if the amount of the judgment is paid to the successful plaintiff, it will be irrecoverable in the event of success of the appeal.
We have been given figures which would suggest, for example, that had there been in the District Court a discounting of the prospects of success in the original action had it been brought by, say, 50 per cent, the amount of the judgment in favour of the successful plaintiff would have been nothing or virtually nothing. There is debate about that, but it is sufficient for the moment to accept that that is an arguable position.
The plaintiff has some pressing financial commitments. They include the costs of responding to the appeal, which on his solicitor's account would approximate $20,000. There are in addition some $25,000 of commitments to a financier, apart from $15,000 said to be due to his son, although there is no suggestion that the son is pressing for payment.
So on one view the Court could stay execution on the judgment were approximately $45,000 paid over at this stage. I have so approached the matter from the fundamental principle that a successful plaintiff is prima facie entitled to the fruits of his or her judgment, and that we must strive to avoid crafting a position in the Court of Appeal whereby judgments in the trial division, whether this Court or the District Court, are seen to be provisional only pending the result of an appeal.
The relevant approach as described by recent decisions of this Court is simply whether it is appropriate to grant a stay pending appeal. There has been departure from the previous position which expressly required the demonstration of special or exceptional circumstances. Of course it might be said the prescription of "appropriateness" as the test is rather unhelpful. But it is plain that there must be some particular feature about the case which warrants departure from what I have referred to as the fundamental or prima facie position.
Mr Williams QC, who appears for the respondent, rightly points out that the position of this plaintiff would be little different, in broad terms anyway, from the position of most plaintiffs in claims for damages for personal injury, in that rarely would those persons have substantial financial resources; many of them would be dependent upon the payment of pensions and other Social Security benefits.
In the end, assessing the factors in this case, I identify no feature sufficient to warrant the conclusion that it is an appropriate case for a stay pending appeal. I would therefore refuse the application.
THE PRESIDENT: I agree that the application should be refused for the reasons given by the Chief Justice.
DEMACK J: I also agree.
THE CHIEF JUSTICE: The application is refused.
MR WILLIAMS: With costs, may it please the Court?
THE CHIEF JUSTICE: With costs to be taxed.
MR WILLIAMS: Thank you, Your Honour.
THE CHIEF JUSTICE: Thank you.
Details
AGLC
Berry v Green [1999] QCA 213
Case
[1999] QCA 213
Decision Date
CaseChat Overview and Summary
In the matter of Berry v Green, the Court of Appeal was asked to decide whether to stay execution of a judgment given in the District Court. The plaintiff, Ian Berry, sought damages for professional negligence against the defendant solicitor, Robin Herrod Green. The appeal focused on the potential financial consequences for Berry if the judgment were paid and subsequently overturned. The appeal court was tasked with determining whether the circumstances warranted a stay of execution pending the outcome of the appeal.
The legal issues before the court included whether the amount of the judgment should be paid to Berry while the appeal was pending and if so, under what conditions. The court had to consider the principle that a successful plaintiff is generally entitled to the fruits of their judgment, balanced against the possibility that the appeal might succeed, rendering the judgment irrecoverable. The court also had to evaluate whether the plaintiff's financial commitments, including costs for the appeal and other debts, warranted a stay.
The court ultimately decided that there were no exceptional circumstances in this case that justified a stay of execution. The Chief Justice emphasised the principle that a successful plaintiff should be entitled to their judgment, and any stay should only be granted if there were particular features that warranted such a departure. The court acknowledged the financial difficulties faced by Berry but found that these did not sufficiently distinguish this case from others where plaintiffs have limited financial resources. Consequently, the court refused the application for a stay and ordered costs to be taxed.