Clarence City Council v Howlin (No 2)

[2012] TASSC 56

[2012] TASSC 56

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Clarence City Council v Howlin (No 2) [2012] TASSC 56

PARTIES:  CLARENCE CITY COUNCIL
  v
  HOWLIN, Darryl Robert    
  HOWLIN, Helen Lorraine
  and
  TAPPING, Ralph Desmond
  TAPPING, Beverley Anne
  GEAPPEN, Paul
  GEAPPEN, Jenny-Anne
  CUPPARI, Michael
  CUPPARI, Meredith Anne
  POHL, Richard Craig
  CLARKSON, Robert Henry
  GRIGGS, Nicholas John
  GRIGGS, Janet Maree
  PETERSON, Nancy Ruby
  McCORMACK, Andrew John
  McCORMACK, Christine Lynette

FILE NO:  548/2010      
DELIVERED ON:  6 September 2012
DELIVERED AT:  Hobart
HEARING DATE:  6 September 2012
JUDGMENT OF:  Holt AsJ
CATCHWORDS:

Appeal and new trial – Appeal – Practice and procedure – Tasmania – Powers of Court – Other matters – Stay of proceedings pending appeal.

Aust Dig Appeal and New Trial [392]

REPRESENTATION:

Counsel:
           Plaintiff:                  S B McElwaine  
           First defendant:     In person      
Solicitors:
           Plaintiff:                  Shaun McElwaine + Associates
           First defendant:     In person      

Judgment Number:           [2012] TASSC 56
Number of paragraphs:    9  

Serial No 56/2012
File No 548/2010

CLARENCE CITY COUNCIL v DARRYL ROBERT HOWLIN & ORS

REASONS FOR JUDGMENT  HOLT AsJ
  6 September 2012

1. Final judgment was pronounced on 28 May 2012 granting to the plaintiff the declaration sought in the action.  On 3 July the first defendant filed a notice of appeal.  An application for an extension of the 21 day time limit for the institution of the appeal is yet to be lodged.  On 20 July the trial judge ordered the first defendant to pay the plaintiff’s costs.  The plaintiff submitted its bill totalling about $82,000.  The taxation has been set down for tomorrow.  On 4 September the first defendant filed an application for a stay of proceedings pending the outcome of the appeal.

1. Supreme Court Rules 2000, r676 is as follows:

“(1)An appeal does not operate as a stay of proceedings unless the Court or a judge so orders.

(2)An order staying proceedings may be made –

(a)as to the whole or any part of the proceedings in the proceeding;  and

(b)on any terms the Court or judge granting the stay thinks fit.”

1. It is inappropriate to hear detailed argument as to the substantive merits of an appeal on an application for a stay.  However, if it appears that an appeal, which does not require leave, has been lodged without any real prospect of success and simply to gain time a finding accordingly can be made and the application for the stay consequentially dismissed.  Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 at 695. There being no submission on behalf of the plaintiff that the appeal is clearly hopeless I will proceed on the assumption, without deciding the matter, that the first defendant has an arguable case.

1. The discretion to order a stay, if it arises, is not fettered by the terms of the rule.  There is divergent authority as to whether exceptional or special circumstances are required before a stay will be granted.  A collection of the authorities in support of the proposition that exceptional or special circumstances are needed is contained in the judgment of Young CJ in Cellante v G Kallis Industries Pty Ltd (1991) 2 VR 653. In New South Wales in Alexander v Cambridge Credit Corp Ltd (supra), the Court of Appeal constituted by Kirby P, Hope and McHugh JJA held that there is no requirement that exceptional or special circumstances exist before the discretion can be favourably exercised. The Court held at 694 that it is sufficient that the applicant for the stay demonstrates a reason or an appropriate case to warrant the exercise of the discretion. The mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant for the stay bears. The Court will weigh considerations such as the balance of convenience and the competing rights of the parties before it.

1. The circumstances relied upon by the first defendant to support the grant of the stay are:

●        the appeal is not without a prospect of success;

●the first defendant has incurred significant expense by reason of costs orders made in litigation concerning the subject matter of the judgment under appeal;

●the plaintiff is a large statutory corporation and so better resourced than the first defendant;

●some of the costs claimed in the plaintiff’s bill of costs for taxation were unnecessarily incurred;

●the litigation has a public interest component in that if the first defendant is successful the land the subject of the litigation will be declared to be a public highway.                 

1. I make the following observations.  The fact that an appeal has merit is not, of itself, sufficient to justify the grant of a stay.  If costs have been unnecessarily incurred they will be disallowed by the taxing officer.  Although the litigation may incidentally have had a public interest component, it was conceded by the first defendant that success in the litigation would have resulted in him gaining a financial benefit.

1. There was no assertion that enforcement of the costs order would result in irreparable damage to the first defendant such as the loss of the family home.  Success in the appeal would not be rendered nugatory if the costs order is enforced as the money would have to be repaid by the plaintiff.

1. Without deciding the question, but proceeding on the assumption that exceptional or special circumstances are not required to justify a favourable exercise of the discretion, I would not be satisfied that the circumstances relied upon by the first defendant are such that the justice of the case rests with the grant of a stay.  In coming to this conclusion I accept that the plaintiff would suffer much less inconvenience by being temporarily kept out of its costs than the first defendant would  suffer by having to pay them in the near future.  But I also take into account that by virtue of the judgment the plaintiff has an immediate enforceable right and rights acquired by judgment should not be lightly interfered with.

1. The application is dismissed.