Culloton v Cosgrove
[2015] WASCA 25
•6 FEBRUARY 2015
CULLOTON -v- COSGROVE [2015] WASCA 25
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 25 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:139/2014 | 2 FEBRUARY 2015 | |
| Coram: | MURPHY JA | 6/02/15 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Application for a stay dismissed Application for an extension of time by which to commence the appeal referred to the hearing of the appeal Application for an extension of time by which to file and serve the appellant's case allowed Application to adduce additional evidence referred to the hearing of the appeal Application to vacate taxation of costs hearing in the District Court dismissed Appeal stayed pending the appellant's application to set aside the judgment in the District Court, or further order | ||
| B | |||
| PDF Version |
| Parties: | JEFFREY MICHAEL CULLOTON GEOFFREY GRANT COSGROVE |
Catchwords: | Practice and procedure Application for extension of time to commence appeal Application for extension of time to file and serve appellant's case Application to adduce additional evidence Application for stay of primary proceedings pending disposition of the appeal Application to vacate taxation of costs in the primary court Appellant's application to set aside the judgment in the primary court pursuant to O 34 r 3 of the Rules of the Supreme Court 1971 (WA) Whether appeal should be stayed pending appellant's application to set aside judgment in the District Court |
Legislation: | Rules of the Supreme Court 1971 (WA), O 34 r 3 Supreme Court (Court of Appeal) Rules 2005 (WA), pt 5 r 27, r 43(2) |
Case References: | Bradshaw v Warlow (1886) 32 Ch D 403 Cosgrove v Culloton [2014] WADC 146 Johnson & Co v Clifford (1905) 7 WAR 240 Policy Nominees Pty Ltd v McDougall (Unreported, WASC, 1991, Library No 8768) Schafer v Blyth [1920] 3 KB 140 Simonsen v Legge [2010] WASCA 238 Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 Vacuum Oil Pty Co Ltd v Stockdale (1942) 42 SR (NSW) 239 Vint v Hudspith (1885) 29 Ch D 322 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CULLOTON -v- COSGROVE [2015] WASCA 25 CORAM : MURPHY JA HEARD : 2 FEBRUARY 2015 DELIVERED : 6 FEBRUARY 2015 FILE NO/S : CACV 139 of 2014 BETWEEN : JEFFREY MICHAEL CULLOTON
- Appellant
AND
GEOFFREY GRANT COSGROVE
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : GOETZE DCJ
Citation : COSGROVE -v- CULLOTON [2014] WADC 146
File No : CIV 777 of 2012
Catchwords:
Practice and procedure - Application for extension of time to commence appeal - Application for extension of time to file and serve appellant's case - Application to adduce additional evidence - Application for stay of primary proceedings pending disposition of the appeal - Application to vacate taxation of costs in the primary court - Appellant's application to set aside the judgment in the primary court pursuant to O 34 r 3 of the Rules of the Supreme Court 1971 (WA) - Whether appeal should be stayed pending appellant's application to set aside judgment in the District Court
Legislation:
Rules of the Supreme Court 1971 (WA), O 34 r 3
Supreme Court (Court of Appeal) Rules 2005 (WA), pt 5 r 27, r 43(2)
Result:
Application for a stay dismissed
Application for an extension of time by which to commence the appeal referred to the hearing of the appeal
Application for an extension of time by which to file and serve the appellant's case allowed
Application to adduce additional evidence referred to the hearing of the appeal
Application to vacate taxation of costs hearing in the District Court dismissed
Appeal stayed pending the appellant's application to set aside the judgment in the District Court, or further order
Category: B
Representation:
Counsel:
Appellant : Mr N Dillon
Respondent : Mr S Vandongen SC
Solicitors:
Appellant : Rowe Bristol Lawyers
Respondent : Bradley Bayly Legal
Case(s) referred to in judgment(s):
Bradshaw v Warlow (1886) 32 Ch D 403
Cosgrove v Culloton [2014] WADC 146
Johnson & Co v Clifford (1905) 7 WAR 240
Policy Nominees Pty Ltd v McDougall (Unreported, WASC, 1991, Library No 8768)
Schafer v Blyth [1920] 3 KB 140
Simonsen v Legge [2010] WASCA 238
Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168
Vacuum Oil Pty Co Ltd v Stockdale (1942) 42 SR (NSW) 239
Vint v Hudspith (1885) 29 Ch D 322
1 MURPHY JA: This matter came before the court on 2 February 2015 by way of a registrar's notice to attend dated 16 January 2015, to consider the appellant's application dated 8 January 2015. The application is pursuant to r 43(2) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules), and seeks orders to the effect that:
1. The period of time for the filing and service of the notice of appeal in these proceedings be extended to 8 December 2014 and further service be dispensed with.
2. The period of time for the filing and service of the appellant's case in these proceedings be extended to 12 December 2014 and further service be dispensed with.
3. The affidavit of Jeffrey Michael Culloton sworn on 11 December 2014, including attachments JMC1 to JMC5, be accepted as filed for the purpose of these proceedings on 12 December 2014 and any further service be dispensed with;
4. Pursuant to section 15 of the Civil Judgments Enforcement Act 2004 (WA), the judgment of the Honourable Justice Goetze delivered on 23 October 2014 in District Court proceedings CIV 777 of 2012 (cited as Cosgrove v Culloton [2014] WADC 146), be suspended pending the outcome of these proceedings;
5. The taxation hearing in District Court proceedings CIV 777 of 2012 listed for 9.30am on 12 February 2015 be vacated pending the outcome of these proceedings; and
6. Costs in the cause.
2 The appeal within which the application is brought is an appeal against a decision of Goetze DCJ: Cosgrove v Culloton [2014] WADC 146. His Honour found the appellant was liable in assault and battery to the respondent, and ordered the appellant to pay the respondent damages in the sum of approximately $107,000.
3 The appellant did not take part in the trial process, either in person or by counsel. His Honour said:
Mr Culloton was present at the listing conference on 17 March 2014 when the trial dates were set for this action. Since that time, he has been involved in handling this action in his own defence. However, Mr Culloton did not attend at the trial, either in person or by counsel. No evidence was called at trial on his behalf. Numerous telephone calls by court staff were made to Mr Culloton on the morning the trial commenced, on the afternoon of the first day of trial, and on the morning of the second day, but such calls were not answered [15].
4 At the commencement of the hearing of the trial, the transcript records the following. All references below to 'counsel' are references to counsel who appeared for the plaintiff in the primary proceedings (ie, the respondent in the appeal):
COUNSEL: Your Honour, in the lead-up to the trial, Mr Culloton has been represented in person. He, at the very start, had counsel, Mr Hammond, who settled his defence, but substantively since then he's been unrepresented and indicated that he would represent himself at trial at the previous directions hearings. He has, I understand, attended the previous directions hearings in the lead-up to trial and on the last occasion advised that he didn't intend to call any witnesses at the trial. I don't think he said anything about not appearing at all.
GOETZE DCJ: I think we've got a mobile telephone number for him. What we might try and do is ring him and see if he's coming.
COUNSEL: May it please your Honour. I can indicate that the plaintiff is ready to proceed. We have our witnesses arranged for today, tomorrow and two expert witnesses on Wednesday.
GOETZE DCJ: So if we proceed today, we'll just have the plaintiff and possibly two witnesses?
COUNSEL: Possibly one other witness for today and we've got three witnesses for tomorrow and two experts for Wednesday. In arranging the schedule of witnesses, it wasn't at all clear how Mr Culloton intended to conduct the matter. We haven't been able to agree anything with him and so we've taken the position that everything would need to be proved. So we've allowed ample time for the witnesses.
GOETZE DCJ: Yes.
COUNSEL: And certainly if Mr Culloton does not attend, it would be my application to proceed in his absence pursuant to Order 34 rule 2 of the Supreme Court Rules.
GOETZE DCJ: All right. Well, we'll just adjourn. I'll get Mr Associate to give him a ring and if we can [get] an answer, we'll see what he wants to do. And if he doesn't answer, I think we'll just push on.
COUNSEL: May it please your Honour.
GOETZE DCJ: All right. Well, we'll just adjourn briefly.
(Short adjournment)
GOETZE DCJ: Please be seated.
I understand … there's no response with two telephone calls, just straight through to MessageBank, and that the registry last heard from Mr Culloton on Tuesday of last week.
COUNSEL: May it please your Honour.
GOETZE DCJ: So I think we'll just push on.
COUNSEL: That is my application, your Honour.
GOETZE DCJ: Yes. Well, we'll do that (ts 1/9/14 pages 2 - 3).
5 At the end of the first day's hearing, the transcript records:
GOETZE DCJ: And is there anything else that we can do either today or tomorrow?
COUNSEL: I will certainly try and address all of the issues in relation to calculation of damages and I could speak to your Honour about that tomorrow afternoon and then just leave the dentist till the Wednesday morning, if necessary.
GOETZE DCJ: All right then and I'll get Mr Associate to also try and ring Mr Culloton one more time.
COUNSEL: May it please your Honour.
GOETZE DCJ: All right. Then we'll adjourn until 11.30 in the morning (ts 1/9/14 page 57).
6 At the commencement of the second day's hearing, the transcript records:
GOETZE DCJ: Please be seated.
Just before we start … Mr Associate did yesterday afternoon try to ring Mr Culloton without any success.
He' s tried again this morning without success and I might just note I had a look at the file. On 17 March this year, there was a listing conference. Mr Culloton attended. Mr Ponnambalam attended for the plaintiff and the trial was listed for Monday to Friday of this week at 10.30 am. There were further directions, et cetera, required.
COUNSEL: Yes.
GOETZE DCJ: Certainly it seems there's a record and he's well aware of this trial.
COUNSEL: And subsequent to that listening conference, I think there were two others, one of which I attended and one which my instructing solicitor attended and he was present at both and again aware of the - - -
GOETZE DCJ: Or directions hearings.
COUNSEL: Yes. Aware of the dates and length of trial and was asked on both occasions by Registrar Kingsley if he was going to be represented and indicated that he may or may not be. But he was certainly aware of the dates.
GOETZE DCJ: And although I've not read it, I've had a quick look at his submissions which are all of an evidentiary-type basis.
COUNSEL: Yes, your Honour. I've read them now and that would be my submission about them.
GOETZE DCJ: There's a transcript of the criminal trial at Geraldton in August 2010.
COUNSEL: Yes, your Honour.
GOETZE DCJ: I haven't read that.
COUNSEL: No, I - - -
GOETZE DCJ: I don't intend to unless in some way it comes into evidence.
COUNSEL: Yes. And I will make submissions about that in due course, if your Honour was minded to look at that. But - - -
GOETZE DCJ: At the present, I'm not minded to.
COUNSEL: May it please your Honour. Your Honour, I can indicate from our perspective we're certainly ready to proceed this morning and conclude Mrs Cosgrove. There are then the three liability witnesses who won't take very long (ts 2/9/14 pages 59 - 60).
7 At the end of the second day's hearing, the transcript records:
COUNSEL: And I regret, your Honour, those are the only witnesses I have for today.
GOETZE DCJ: All right. Well, we've got the two dentists tomorrow.
COUNSEL: Yes, the two doctors tomorrow.
GOETZE DCJ: Now, I've got your documents to be tendered and they're in there.
COUNSEL: Yes, they will go through the doctors tomorrow.
GOETZE DCJ: Okay.
COUNSEL: I'm preparing a list of authorities with copies of the cases to save your Honour looking for them. And I'll hand those up. We will hand them up tomorrow, unless your Honour wants them later today. We can deliver them to your Honour's associate.
GOETZE DCJ: If they're ready later on today your instructing solicitors are only just next door, aren't they?
COUNSEL: Next door, that's right, your Honour, yes.
GOETZE DCJ: If it's convenient they can drop them up.
COUNSEL: All right. May it please your Honour. The first witness then tomorrow is at 10.30 and then a second witness at 12.30.
GOETZE DCJ: So I guess we'll have a break in between the two.
COUNSEL: Probably, yes, your Honour. And then that will complete the plaintiff's case.
GOETZE DCJ: All right. I'm troubled by the defendant not being here. But he knows about it. Was there any indication that he wouldn ''t come, or - - -
COUNSEL: He never said he wasn't going to come but I can't say, from our perspective, that we're completely surprised, because he refused to indicate whether he was going to instruct counsel or represent himself. He attended all the directions hearings and he's provided all the documents that were ordered, so he's well and truly aware of it. Today he complied, albeit late. Nothing else we can say, your Honour, from our perspective.
GOETZE DCJ: All right. We'll just have to deal with it as we have the cards dealt to us. All right. We'll adjourn.
AT 12.19 PM THE MATTER WAS ADJOURNED UNTIL WEDNESDAY, 3 SEPTEMBER 2014
(ts 2/9/14, pages 82 - 83).
8 On the third and final day of the hearing, counsel for the plaintiff (respondent to the appeal) submitted:
COUNSEL: Now, the reason, your Honour, that I say that there is no evidence of self-defence, no evidence of any of those other matters where the defendant bears the burden, and why your Honour should conclude that the plaintiff established liability is because the documents and submissions which the defendant has provided are not matters, I'd respectfully suggest, that your Honour can take into account.
For whatever reason the defendant has chosen not to participate in this trial. In my respectful submission that must be regarded as a deliberate decision by him not to participate. He was well aware of when the trial was to take place. He attended the various listing conferences prior to the trial.
He filed documents in accordance with directions including submissions, and so it could only be that his failure to appear is a deliberate decision on his part not to appear, particularly in circumstances where, as I've previously indicated, he had been asked whether he intended to have counsel or not, and had not answered that question. He is not a man who - and as is clear from the documents, he is not a man who is unfamiliar with instructing legal representatives. He's previously had legal representatives. He well knows what his rights are.
Numerous attempts have been made to contact him. As I understand it, he still, to date, hasn't returned any of the calls from the court, and despite the fact that we're now on day 3 of the trial, has not attended.
Ultimately, of course, if it transpires that he was indisposed for whatever reason, there are options open to him in terms of redress. But at this stage we'd suggest that his failure to appear is deliberate, and what he's done is produced submissions to the court, and also the transcript of a previous criminal trial (ts 3/9/14, page 118).
9 In the foregoing, the reference to a transcript of the previous criminal trial appears to be a reference to the criminal trial of the appellant in respect of the incident, in which the appellant was acquitted.
10 The primary judge's reasons for decision were delivered on 23 October 2014, and it appears that final orders were made that day.
The appeal
11 The appellant, acting then in person for himself, filed an appeal notice on 6 November 2014. The appeal notice stated that an extension of time was needed. The appeal notice was not served on that date, and thus the appeal did not commence on 6 November 2014. By pt 5 r 27 of the Court of AppealRules, an appeal is not commenced until it is both filed and served.
12 On 4 December 2014, Rowe Bristol Lawyers filed a notice that they were acting for the appellant in the appeal. On 10 December 2014 the appellant's solicitors filed a service certificate, to the effect that service was effected on 'Bradley Bayly Legal, the solicitors for the respondent who had been instructed to accept service'.
13 The appellant swore an affidavit dated 11 December 2014 in which he stated, in effect, that when the appeal notice was filed, he was unrepresented and he was not aware that he had to serve the appeal notice on the respondent. On 3 December 2014 registry staff informed the appellant that he had to serve the appeal notice. The appellant's solicitors, on 4 December 2014, contacted the respondent's solicitors to arrange service of the notice. On 8 December 2014 the respondent's solicitors told the appellant's solicitors that they had instructions to accept service of the appeal notice, and the appellant's solicitors subsequently served the respondent's solicitors the appeal notice on the same day. The appellant deposed in effect that if by reason of the late service of the appeal notice he was no longer entitled to proceed with the appeal, he would suffer prejudice in that he would be unable to challenge the primary decision in circumstances where it may (allegedly) be seen to be wrong.
14 The appellant's case was to be filed by 11 December 2014. It was filed on 12 December 2014.
15 In the absence of the respondent filing a notice of intention, on 22 December 2014, the registrar made orders that the appellant file an affidavit of service of the appeal notice by 19 January 2015. The registrar also ordered that the appellant file an amended appellant's case to delete or amend ground 3 of the grounds of appeal and its related submissions by 23 January 2015.
16 On 8 January 2015, the appellant filed the application referred to at the commencement of these reasons. The application was supported by an affidavit sworn by an employee of the appellant's solicitors on 8 January 2015.
17 The solicitor's affidavit stated, in effect, that the appellant's case was due for filing on 11 December 2014, but that events occurred on 11 December 2014 which explained why the appellant's case was not accepted for filing on the afternoon of 11 December 2014. He said that the appellant's case was accepted for filing on 12 December 2014.
18 With respect to seeking suspension orders against the judgment below, the affidavit states that based on certain searches carried out by the appellant's solicitors, the appellant's solicitors believe that the respondent would not be able to repay the judgment sum and taxed costs in the event that the appellant was successful in the appeal.
19 On 15 January 2015 an employee of the solicitors for the appellant also swore an affidavit of service.
20 On 16 January 2015, the registrar issued to the appellant a notice to attend a hearing on 2 February 2015 to consider the appellant's application dated 8 January 2015.
21 On 23 January 2015, the appellant's solicitors sought to file an amended grounds of appeal and amended submissions. These documents were not accepted for filing, as the order made on 22 December 2014 required an amended appellant's case to be filed.
22 On 30 January 2015, the appellant's solicitors filed an amended appellant's case.
The appellant's case
23 The appellant's amended grounds of appeal (without the particulars) are as follows:
1. The learned Trial Judge erred in law in not adjourning the trial when the appellant failed to attend at the commencement.
2. Alternatively, the learned Trial Judge erred in law:
2.1 in not accepted being read into evidence, the evidence given in the Criminal Proceedings or parts thereof;
2.2 alternatively, if the learned Trial Judge ruled that the evidence in the Criminal Proceedings would not be read into evidence, in not then adjourning the proceedings to allow the appellant to be advised of what steps were necessary for him to seek to have that evidence admitted and to allow him to take such steps or otherwise make an informed decision in relation to whether he took those steps.
The appellant's evidence in the application
25 In addition to the affidavits referred to above, counsel for the appellant tendered at the hearing of this application the respondent's bill of costs lodged for taxation in the District Court (exhibit A). The amount claimed is $138,455. Counsel also tendered a copy of the affidavit of the appellant sworn 11 December 2014 referred to in par 3 of the application dated 8 January 2015 (exhibit B). It should be noted that this affidavit (which I will call the 'Culloton affidavit') is different from the affidavit of the same date, 11 December 2014, referred to earlier. The Culloton affidavit addresses certain matters concerning the appellant's failure to attend the hearing before Goetze DCJ. It was filed on 2 February 2015.
Order 34
26 At the hearing on 2 February 2015, the court was informed by counsel for the appellant that on 28 January 2015, the appellant had made an application to the District Court to set aside the judgment of the primary judge. The application has been made pursuant to O 34 r 3 of the Rules of the Supreme Court1971 (WA) (RSC), which provides:
3. Setting aside judgment given in absence of party
Any judgment, order, or verdict obtained where one party does not appear at the trial may be set aside by the Court upon such terms as the Court thinks just upon application made within 14 days after the trial.
Legal principles concerning stay
28 The principles relevant to a stay of enforcement were stated by Pullin JA in Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 as follows [21] - [22]:
The application for a suspension order is made under s 15 of the Civil Judgments Enforcement Act 2004 (WA). Alternatively, the court has power under its rules to grant an interim order in the form of a stay of execution pending the hearing of the appeal.
…
Both under s 15 and in an application for a stay, the principles are as follows:
(a) The successful litigant is ordinarily entitled to enforce a judgment pending the determination of any appeal.
(b) It is for the applicant for a stay to move the court to a favourable exercise of its discretion. Under s 15(3) this court may only make a suspension order if there are 'special circumstances' that justify doing so and in an application for a stay under the rules this is also a usual requirement.
(c) The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation or whether a refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. This may shortly be described as requiring the court to consider whether the right of appeal will be rendered nugatory if a stay is not granted.
(d) If it can be demonstrated that the right of appeal will be rendered nugatory if a stay is not granted, the stay will generally still be refused unless it can be established that the appeal has ultimately reasonable prospects of success.
(e) Finally, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted: Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308.
Disposition
29 As to par 1 of the application, this appears to seek, in effect, an order that the appellant be given leave to extend the time for the commencement of the appeal (as to which, see [11] - [13] above). The principles relevant to an extension of time are set out in Simonsen v Legge [2010] WASCA 238. These matters were not addressed in submissions. It seems to me that I should treat par 1 of the application as an application to extend the time in which to commence the appeal, and direct that that application be heard at the same time as the hearing of the appeal, unless otherwise ordered.
30 As to par 2, the appellant's case was filed a day late. There should be an order as asked, although it is on the basis that it does not affect or impinge upon the broader question of whether the appellant should be given leave to appeal out of time.
31 I will treat par 3 of the application as an application to adduce additional evidence in the appeal by way of the Culloton affidavit, and direct that that application be referred to the hearing of the appeal.
32 I would dismiss par 4 of the application. I am not persuaded that there are special circumstances which have been demonstrated to justify a stay.
33 I am not satisfied that the appeal would be rendered nugatory in the event that a stay were not ordered. In this regard, I am not persuaded that the respondent would be unable to repay the judgment sum and taxed costs if the appeal were successful. The primary evidence (on one view of it - it is not clear) arguably indicates that the respondent is not the registered proprietor of land in Western Australia. Even if that be right, the evidence indicates that he owns a 1/6 share in a partnership and a share in what appears to be a family company. There is no direct evidence to the effect that those assets have no value, or are of insufficient value to meet any claim for repayment of the judgment and taxed costs in the event that the appeal is successful. Nor would I infer, on the evidence, that to be the case.
34 More fundamentally, until the application to set aside the judgment in the District Court is determined, it is impossible to know whether the appellant will, in any event, be at risk as he alleges. Ordinarily, an application under O 34 r 3 of the RSC would be made prior to any appeal as it has the potential, if successful, to render an appeal against the primary judgment otiose. Of course, if the application to the District court were to fail, that decision might itself become the subject of an appeal, providing of course that there was appellable error (and perhaps, subject to leave if, as would appear to be the case, the decision was interlocutory). See Vint v Hudspith (1885) 29 Ch D 322, 323 - 324; Bradshaw v Warlow (1886) 32 Ch D 403, 406 - 408; Johnson & Co v Clifford (1905) 7 WAR 240. The O 34 r 3 application should ordinarily be made to the judge who heard the case in the primary court: Schafer v Blyth [1920] 3 KB 140, 143 - 144. The court's discretion is unfettered, although it is to be exercised judicially and having regard to the justice of the case in all the circumstances. See, eg, Vacuum Oil Pty Co Ltd v Stockdale (1942) 42 SR (NSW) 239; Policy Nominees Pty Ltd v McDougall (Unreported, WASC, 1991, Library No 8768), Owen J.
35 The above reasons, to my mind, are sufficient to dismiss par 4 of the application. I have assumed for present purposes only, and without deciding, that at least ground 1 of the appeal is arguable.
36 The above considerations also indicate that par 5 of the application should be dismissed (assuming, for the moment, that I have power to make an order in those terms - which I doubt). Moreover, I would think the more appropriate court, in the present circumstances, in which to apply for an adjournment of the taxation hearing, is the District Court itself.
Conclusion
37 For the above reasons I would make the following orders:
1. Paragraph 1 of the appellant's application dated 8 January 2015 be treated as an application to extend the time for the commencement of the appeal, and that that application be referred to the hearing of the appeal, unless otherwise ordered.
2. The period of time for the filing and service of the appellant's case in these proceedings be extended to 12 December 2014 and further service be dispensed with.
3. Paragraph 3 of the appellant's application be treated as an application to adduce additional evidence in the appeal and that that application be referred to the hearing of the appeal.
4. Paragraphs 4 and 5 of the appellant's application dated 8 January 2015 be dismissed.
38 It would also be appropriate for the appeal to be stayed pending the resolution of the appellant's application under O 34 r 3 of the RSC in the District Court, or until further order, with liberty to apply.
39 The appellant should pay the costs of the application.
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