Hope v Hunter and New England Area Health Service [No. 2]

[2009] NSWDC 334

CITATION:	Hope v Hunter and New England Area Health Service [No. 2] [2009] NSWDC 334
HEARING DATE(S):	11 December 2009
JUDGMENT DATE:	11 December 2009
JURISDICTION:	Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. Application for a stay is refused and dismissed; 2. The defendant is to pay the plaintiff’s costs of and incidental to the application; 3. The defendant is to pay the costs of the court ordered mediation.
CATCHWORDS:	PROCEDURE – refusal of stay pending appeal – whether circumstances justify the grant of a stay
CASES CITED:	Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Najem (No 2) [2009] NSWCA 130 Alexander v Cambridge Credit Corporation Ltd [1985] 2 NSWLR 685 Andrews v John Fairfax & Sons [1979] 2 NSWLR 184 Bridges v Australian Consolidated Press Ltd, NSW Court of Appeal, 16 June 1970, unreported Kalifair Pty Ltd v Digi-tech (Australia) Ltd [2002] NSWCA 383 Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 Zian Fu v Kiem Dang Investment Pty Ltd [2009] NSWCA 3802
PARTIES:	Gary Andrew Hope (Plaintiff) Hunter and New England Area Health Service (Defendant)
FILE NUMBER(S):	154 of 2008 (Newcastle District Court)
COUNSEL:	Mr J Anderson (Plaintiff) Mr R Sergi (Defendant)
SOLICITORS:	Catherine Henry Partners (Plaintiff) Francesca Menniti (Defendant)

JUDGMENT

Notice of motion

1. On 7 December 2009 the defendant in the proceedings filed a notice of motion in this Court pending an appeal to the Court of Appeal, making an application for a stay of the final judgment entered in the plaintiff’s favour in the proceedings on 27 November 2009 in the amount of $525,511.

2. Another issue to be determined was the responsibility for the costs of a court ordered mediation. I had ordered a mediation before the trial commenced in Newcastle District Court. That issue has now been resolved by consent and the defendant has accepted responsibility for the cost of that mediation.

Evidence in support of application

3. In support of the application the solicitor for the defendant has filed an affidavit which, omitting formal parts, materially states:

“3. From the evidence given at the hearing of this matter, it appears that the Plaintiff is not presently employed and is not a person of means sufficient to repay the Judgment sum should the defendant be successful on appeal.”

4. The defendant has tendered a notice of intention to appeal in the following terms :

“The applicant intends to commence appeal proceedings within 3 months after the material date, that is on or before 27 February 2010.”

Submissions

5. In support of the application for a stay, on behalf of the defendant it was submitted that there is to be an appeal on liability, causation and quantum issues although at the time of the application the merit and grounds of the proposed appeal have not been determined. It was also submitted that there is a risk of the plaintiff being unable to repay funds in the event of a successful appeal. In response, on behalf of the plaintiff it was submitted that the requirements for the grant of a stay have not been satisfied.

Principles governing a stay pending an appeal

6. The general principle is that a successful party is entitled to the benefit of a judgment obtained by him unless the applicant demonstrates a reasonable basis for ordering a stay : Alexander v Cambridge Credit Corporation Ltd [1985] 2 NSWLR 685 at [694E].

7. The considerations for a stay have changed little over time. In Andrews v John Fairfax & Sons [1979] 2 NSWLR 184, at 189B Maxwell J cited the remarks of Sugerman P in Bridges v Australian Consolidated Press Ltd, NSW Court of Appeal, 16 June 1970, unreported, as follows:

“The two prime requirements which need to be fulfilled in order that a stay of proceedings upon a verdict at common law should be granted appear to be, first of all, that if the damages and costs were paid there would be no reasonable probability of getting them back if the appeal succeeds and, secondly, that there should be reasonably arguable grounds of appeal.”

8. These principles have been more recently restated. The grant of a stay requires evidence that there are arguable grounds of appeal and if the monies or a substantial part of them are paid to the judgment creditor there is a significant risk that such monies will be irrecoverable in the event of a successful appeal: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Najem (No 2) [2009] NSWCA 130 per Hodgson JA at [2].

9. In Zian Fu v Kiem Dang Investment Pty Ltd [2009] NSWCA 3802 Hodgson JA at [2] referred to the need for an appellant to satisfy the requirements for a stay in the following terms:

“As stated by the Court of Appeal in Kalifair Pty Ltd v Digi-tech (Australia) Ltd [2002] NSWCA 383 at paragraph [18], an appellant seeking a stay must generally show that the appeal raises serious issues for determination of the appellate Court, and that there is a real risk that the appellant will suffer prejudice or damage if a stay is not granted which will not be redressed by a successful appeal.”

Consideration

10. There are two principal considerations that relate to the exercise of discretion to order a stay. First, there is the ability of the plaintiff to repay the judgment monies and secondly, there is the question of whether a proposed appeal has merit.

The first limb – argued ability to repay monies

11. Whilst the inference sought to be drawn by the solicitor for the defendant is open on the evidence, namely that the plaintiff is not a person of sufficient means to repay monies in the event of a successful appeal, as has been conceded, it is not the only inference available as it assumes the plaintiff has no means at his disposal at all. Accordingly, the inference sought is only speculative and not probative : Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352.

Findings stated to be the subject of challenge on appeal

12. The subject matter of the proposed appeal was amorphous and non-specific other than to refer to the generic categories of liability, causation and quantum, which is not informative to a consideration of the exercise of discretion to grant a stay.

13. No evidence was introduced on the application concerning the specific findings or areas that the defendant proposes to challenge in an appeal. Nor was there any evidence called that had a tendency to demonstrate, after judgment, that there were likely areas of error in the judgment.

14. Whilst submissions along these lines are undoubtedly difficult to make to a trial judge who has made findings against the party making the application, nevertheless a basic particularity of exposure of such issues is required for the exercise of discretion to grant a stay.

Disposition

15. There was no evidence that the funds are likely to be depleted in the event of a successful appeal. The fact of payment of a judgment does not inexorably give rise to an inference that the funds will be dissipated.

16. In this case, other than an assumption unsupported by evidence, the defendant has not been able to point to cogent reasons for ordering a stay. In my view the application also involves a good deal of speculation as to what might be argued on appeal, the parameters of which are left unstated. I therefore decline to order a stay. In the circumstances, I consider that the appropriate place for the defendant’s application for a stay is in the Court of Appeal in accordance with the current practice convention. I consider that the application should therefore be dismissed with costs.

Orders

17. I make the following orders:-

(a) The defendant’s application for a stay is refused and dismissed;
(b) The defendant is to pay the plaintiff’s costs of and incidental to the application;
(c) The defendant is to pay the costs of the court ordered mediation.