Department of Housing and Works v Smith
[2009] WASCA 167
•6 FEBRUARY 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DEPARTMENT OF HOUSING AND WORKS -v- SMITH [2009] WASCA 167
CORAM: PULLIN JA
HEARD: 6 FEBRUARY 2009
DELIVERED : 6 FEBRUARY 2009
FILE NO/S: CACV 126 of 2008
BETWEEN: DEPARTMENT OF HOUSING AND WORKS
Appellant
AND
IRENE SMITH
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :KEEN DCJ
Citation :SMITH -v- THE HOUSING AUTHORITY [2008] WADC 171
File No :CIV 1997 of 2007
Catchwords:
Practice and procedure - Appeal - Application for stay of execution and suspension order - Turns on own facts
Legislation:
Civil Judgments Enforcement Act 2004 (WA), s 15
Result:
Application granted
Category: B
Representation:
Counsel:
Appellant: Mr C M Birbeck
Respondent: Mr A A Nolan
Solicitors:
Appellant: Downings Legal
Respondent: Trewin Norman & Co
Case(s) referred to in judgment(s):
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Professional Services of Australia Pty Ltd v Computer Accounting & Tax Pty Ltd [2008] WASCA 222
PULLIN JA: This is an appeal against the judgment of Judge Keen who awarded judgment against the appellant in favour of the respondent for $38,000. The appellant seeks a stay of execution and a suspension order under s 15 of the Civil Judgments Enforcement Act 2004 (WA).
The general principles applicable to such an application are set out in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308. A successful litigant at first instance is ordinarily entitled to enforce the judgment pending the determination of any appeal. It is for the applicant for a stay to move the court to a favourable exercise of its discretion. The court will not grant a stay unless special circumstances are shown justifying departure from the ordinary rule. A central issue will be whether the stay is necessary to preserve the subject matter or integrity of the litigation or where refusal could cause practical difficulties in respect of the relief which may be granted on appeal; in short, whether the appeal will be rendered nugatory if a stay is not granted. If that can be demonstrated, the stay will generally still be refused unless it can be established that the appeal has reasonable prospects of success. The stay may even then be refused where it appears that the balance of convenience does not lie in favour of the applicant.
A stay may be granted if it can be demonstrated that the appeal has reasonable prospects of succeeding and that without the grant of a stay, and if the judgment debt is paid, the respondent will be unable to repay the money if the appeal is successful, rendering a right to appeal nugatory. See Professional Services of Australia Pty Ltd v Computer Accounting & Tax Pty Ltd [2008] WASCA 222 [22]).
The respondent was awarded damages for personal injury arising out of the following circumstances. The appellant owns units at an address in Balga, which were let to persons over the age of 55. The respondent occupied unit 1 since 1995. Unit 1 opened onto a backyard which included an area of lawn surrounded by paving. The lawn was regularly maintained by a contractor. The respondent was familiar with the backyard. There had been a bird bath on the lawn at one time but it had been removed and it left a shallow depression in the centre of the lawn where the base of bird bath had stood. The respondent was familiar with the backyard as she would hang her washing and meet neighbours there. She knew that there had been a bird bath on the lawn in the past.
On 26 September 2006 the respondent was crossing the lawn when she fell over. She was found by her son to be in the area of the depression. The trial judge found that the depression caused the respondent to fall, that the depression in the lawn gave rise to a foreseeable risk of injury, that it was not an obvious risk, that the risk of injury was not far-fetched or fanciful and not insignificant and that the appellant was negligent because a reasonable response to the risk would have been to fill in the depression with sand. The judge held that the respondent was not guilty of contributory negligence and he awarded damages of $38,000.
The grounds of appeal allege (a)The trial judge erred in fact in finding that the depression created a foreseeable risk of injury which was not insignificant and erred in finding that the risk was not obvious;(b)erred by finding that the appellant breached its duty of care;(c)erred in finding that the respondent's fall was caused by the depression when there was no evidence from the respondent that the depression caused the fall and no evidence from which that inference could be drawn;(d)erred in concluding that the respondent was not guilty of contributory negligence.
An affidavit has been filed by a solicitor for the appellant referring to evidence which shows that the respondent pays a weekly rental of $74.30 and that this equates to 25% of the respondent's declared weekly income of $297.20. An affidavit has been filed by the respondent deposing to the fact that she is a pensioner and registered with Centrelink; she is a widow; she does not have any dependents and shows that she in effect has no assets other than home contents of very little value and has ordinary living expenditure which consumes almost all of her income.
Her affidavit also states that she does not intend to make any significant purchase of assets with the judgment monies or to spend any significant amount and she states in the affidavit:
I undertake to this honourable court that in the event that this appeal is successful at least $19,000 of the judgment monies will remain should I be required to repay the judgment sum to the appellant.
It is clear that if money is spent or given away and the appeal is successful then the appellant would be required to recover the judgment sum from the respondent who has no assets and a disposable income of only $222.90 per week after rent, after which she must pay her living expenses. The appellant points out that the award of damages was principally for non‑economic loss. Of the judgment sum of $38,000, $37,500 was awarded for general damages. The remaining $500 was awarded for the future cost of pharmaceuticals, assessed at approximately $10 a month. The appellant submits that since the judgment is mostly comprised of general damages for non economic loss, if a stay is granted there will be no financial hardship to the respondent and if the appeal is unsuccessful the respondent will be compensated for the delayed payment of the judgment sum by the accrual of interest at the statutory rate of 6%. The respondent's written submissions do not contain any contention that the grounds of appeal do not raise an arguable case or, correctly stated, reasonable prospects of success. In my opinion, on the information before the court, the appeal would be rendered nugatory if the judgment sum was paid because there is no satisfactory way of ensuring that the money is not dissipated. I do note that the respondent offers the undertaking that at least $19,000 of the judgment monies will remain. If $19,000 is not to be spent then there is no reason for compelling the appellant to make payment at this stage only to have the respondent to have the responsibility of holding the money and to be obliged to provide an undertaking to the court.
As to the balance, it is clear that the respondent will regard herself as free to spend it and the chance of recovery in the event that the appeal succeeded would be slight. I am therefore satisfied that the appeal would be rendered nugatory if a stay were not granted. The grounds of appeal have reasonable prospects of success. The balance of convenience does not favour either party.
Although prima facie the respondent is entitled to the fruits of judgment, the other factors I have mentioned produce special circumstances justifying the grant of a stay in relation to $37,750. It appropriate that $250 be released at this stage, which will cover the cost of the respondent's medical expenses, pending the hearing of the appeal. There should be an order staying execution and suspending the judgment of the District Court with respect to $37,750 until the hearing of the appeal. The costs of this application are costs in the appeal.
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