Henley v State of Qld

[2002] QCA 510

SUPREME COURT OF QUEENSLAND

CITATION:

Henley v State of Qld [2002] QCA  510

PARTIES:

DEBORAH JOAN HENLEY
(first plaintiff/respondent)
PAUL RAYMOND HENLEY
(second plaintiff)
STATE OF QUEENSLAND
(first defendant/applicant)
QUEENSLAND RAIL
(second defendant)

FILE NO/S:

Appeal No 10044 of 2002
DC No 3997 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

Application for Stay of Execution

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EXTEMPORE ON:

22 November 2002

DELIVERED AT:

Brisbane

HEARING DATE:

22 November 2002

JUDGE:

Davies JA

ORDER:

1.    Application dismissed.
2.    Applicant to pay the respondent her costs of this       application.

CATCHWORDS:

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - STAY OF PROCEEDINGS - WHEN REFUSED - where the respondent is not impecunious - where no suggestion the money will, if paid over, be dissipated - where applicant contends the respondent has no urgent need for the money - whether special circumstances exist justifying a stay

Federal Commissioner of Taxation v The Myer Emporium Limited (1986) 160 CLR 220, applied

Hubner & Anor v ANZ Banking Group Limited [1998] QCA 240; Appeal No 5245 of 1998, 13 July 1998, considered

Williams v Chesterman & Anor [1992] QCA 198; Appeal No 74 of 1992, 23 June 1992, considered

COUNSEL:

D O J North SC for the applicant
D L K Atkinson for the respondent

SOLICITORS:

C W Lohe, Crown Solicitor for the applicant
Murphy Schmidt for the respondent

DAVIES JA:  The respondent Deborah Joan Henley obtained a judgment against the applicant, the State of Queensland, in the District Court on 7 October 2002 for $261,200 damages for personal injury caused by the negligence of the applicant.
The applicant has appealed to this Court against that judgment on the basis that the amount awarded was too high.  The appeal is plainly arguable.  It now seeks a stay of enforcement of the judgment pending the outcome of that appeal. 

This Court has said more than once that special circumstances must be shown to justify a stay of the kind sought. In Federal Commissioner of Taxation v. The Myer Emporium Limited (1986) 160 CLR 220 at 222-223 Mr Justice Dawson said,

"Special circumstances justifying a stay will exist where it is necessary to prevent the appeal, if successful, from being nugatory...  Generally that will occur when, because of the respondent's financial state, there is no reasonable prospect of recovering money paid pursuant to the judgment at first instance." 

That is a principle which has been generally followed in this Court on a number of occasions. See, for example, Williams v. Chesterman [1992] QCA 198; Appeal No 74 of 1992, 23 June 1992 and Hubner v. ANZ Banking Group Limited [1998] QCA 240; Appeal No 5245 of 1998, 13 July 1998.

There is no suggestion, let alone evidence, that that is the case here.  On the contrary, it seems that the respondent and her husband have reasonably secure jobs, she with the Australian Taxation Office and he with Smorgen Steels.  It seems also that, between them, they own a house and a car though both it seems are encumbered.  The respondent said in her evidence at the trial that their financial goals were for her to return to work full time so that they could pay the house off and pay the car off and have a comfortable lifestyle.  The applicant, through Mr North, seems to rely on this in some way as supporting an application for a stay. 

In my view it shows rather to the contrary.  It may be that if the money is paid over, it or part of it will be used to pay off loans on the house and the car.  But even if that is so that will leave unencumbered or less encumbered assets in the hands of the respondent or the respondent and her husband.
There is not the slightest suggestion the respondent is impecunious or that in some way if the money is paid over it will be dissipated before the appeal can be heard and decided. 

Mr North urged on me that the respondents have no urgent need for the money.  That is, in my opinion, largely beside the point in the absence of proof of the matters to which I have already referred.  They have a judgment in their favour and prima facie they are entitled to their respective monies.

In my opinion, there is no substance in the application and it should be dismissed.  I therefore make the following orders:

1. Dismiss the application.
2. Order that the applicant pay the respondent her costs of this application.

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