J v L & A Services Pty Ltd

[1993] QCA 89

IN THE COURT OF APPEAL	[1993] QCA 089
SUPREME COURT OF QUEENSLAND

Appeal No. 135 of 1992

Brisbane

[J v. L. & A. Services Pty. Ltd.]

BETWEEN:

J

First Respondent/Plaintiff

- and -

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

- and -

DRS. J.J. SULLIVAN, N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

- and -

WORKERS' COMPENSATION BOARD OF QUEENSLAND

Appellant/Respondent

Appeal No. 136 of 1992

BETWEEN:

R

First Respondent/Plaintiff

- and -

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

- and -

DRS. J.J. SULLIVAN, N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

- and -

WORKERS' COMPENSATION BOARD OF QUEENSLAND

Appellant/Respondent
Appeal No. 137 of 1992

BETWEEN:

J

First Respondent/Plaintiff

- and -

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

- and -

DRS. J.J. SULLIVAN, N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

- and -

WORKERS' COMPENSATION BOARD OF QUEENSLAND

Third Respondent/Respondent

Appeal No. 138 of 1992

BETWEEN:

R

First Respondent/Plaintiff

- and -

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

- and -

DRS. J.J. SULLIVAN, N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

- and -

WORKERS' COMPENSATION BOARD OF QUEENSLAND

Third Respondent/Respondent

Mr. Justice Pincus

Mr. Justice Shephderdson

Judgment delivered 24/03/1993

JUDGMENT OF THE COURT.
THAT THE ORDER OF THE COURT OF APPEAL OF 15 FEBRUARY 1993
SETTING ASIDE THE ORDERS OF THOMAS J. BE STAYED UNTIL THE
PLAINTIFFS' APPLICATION FOR SPECIAL LEAVE TO APPEAL TO THE
HIGH COURT HAS BEEN DISPOSED OF, PROVIDED THAT IF SPECIAL
LEAVE IS GRANTED THE STAY WILL CONTINUE UNTIL THE APPEAL IS
DISPOSED OF AND PROVIDED FURTHER THAT THE STAY MAY BE SET
ASIDE OR VARIED ON APPLICATION TO THIS COURT. COSTS RESERVED.

CATCHWORDS:	STAY - Whether stay of order of Appeal Court could be extended - inherent power of Court to grant further stay to allow decision of Court to be challenged - suppression of identity of HIV positive carriers.
Counsel:	F.L. Harrison Q.C., with him M. Halliday for J & R V.K. Copley Q.C., with him M. Forde for Workers' Compensation Board and L. & A. Services Pty. Ltd. S.L. Doyle for Drs. Sullivan, Nicolaides & Partners
Solicitors:	Chan and Coutts for J & R Heiser Bayley and Mortensen for Workers' Compensation Board and L. & A. Services Pty. Ltd. Clayton Utz for Drs. Sullivan, Nicolaides & Partners
Hearing Date(s):	15 March 1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 135 of 1992

Brisbane

Before Mr. Justice Pincus

Mr. Justice Shepherdson

[J v. L. & A. Services Pty. Ltd.]

BETWEEN:

J

First Respondent/Plaintiff

- and -

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

- and -

DRS. J.J. SULLIVAN, N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

- and -

WORKERS' COMPENSATION BOARD OF QUEENSLAND

Appellant/Respondent

Appeal No. 136 of 1992

BETWEEN:

R

First Respondent/Plaintiff

- and -

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

- and -

DRS. J.J. SULLIVAN, N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

- and -

WORKERS' COMPENSATION BOARD OF QUEENSLAND

Appellant/Respondent
Appeal No. 137 of 1992

BETWEEN:

J

First Respondent/Plaintiff

- and -

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

- and -

DRS. J.J. SULLIVAN, N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

- and -

WORKERS' COMPENSATION BOARD OF QUEENSLAND

Third Respondent/Respondent

Appeal No. 138 of 1992

BETWEEN:

R

First Respondent/Plaintiff

- and -

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

- and -

DRS. J.J. SULLIVAN, N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

- and -

WORKERS' COMPENSATION BOARD OF QUEENSLAND

Third Respondent/Respondent

JOINT JUDGMENT - PINCUS J.A. & SHEPHERDSON J.

Judgment delivered 24/03/1993

These are applications for stays of judgments of this

Court given on 15 February 1993, from which special leave is being sought to appeal to the High Court. Each of the applicants is a plaintiff in suits in which it is alleged that one of them, "R", acquired the virus known as HIV in the course of his employment in a pathology laboratory and transmitted it to the other, "J"; alternatively, it is said that "J" also acquired it in the course of her employment in the laboratory; damages are sought. The applicants obtained from Thomas J. orders of a limited character, inhibiting publication of their names in connection with the proceedings, but those orders were set aside on appeal to this Court; it was ordered on 15 February 1993 that the orders of Thomas J. be set aside:

"... after a period of 28 days to allow
the Respondents an opportunity to seek
Special Leave to Appeal to the High Court

if they are minded to do so".

The applications were, in effect, to extend the 28 day

period allowed by this Court's order of 15 February, because
the applicants have decided to apply to the High Court. The
applications were opposed, but we have allowed them, reserving

our reasons.

Mr. Copley Q.C., senior counsel for certain of the

respondents to the application, argued that the Court has no jurisdiction to grant a further stay. He relied principally upon the decision of the Full Court of the Supreme Court in

Sinnamon v. New Zealand Insurance Co. (No. 2) [1898] Q.L.J. 24. There, a plaintiff obtained from the Full Court a judgment in his favour for a sum under £500; the result was that the defendants could appeal to the Privy Council only after obtaining leave. In reasons with which the other judges agreed, Cooper J. held there was no jurisdiction to stay proceedings in the matter, pending the application for leave.

His Honour said:

"I am of opinion that, when we gave that
judgment, we were done with the case -
that the Court was functus officio - and
that, there being no appeal given by the
law from that decision, we have no
jurisdiction to stay proceedings in the
matter. We have done with the whole

case".

Mr. Copley contended that the decision should be applied

in the present circumstances, where there is (as in Sinnamon's

case) no right of appeal beyond the Supreme Court.

It seems to us, however, that subsequent decisions

strongly support the proposition that the Court of Appeal has
inherent power to grant a stay to enable an attempt to be made
to challenge a decision of its own. Authorities in favour of
that view, as to Privy Council appeals, are Howarth v. Walker
[1903] 3 S.R.(N.S.W.) 235, Liebe v. Molloy (1907) 9 W.A.L.R.
116, F.A.I. Insurances Ltd. v. Registrar of Workers'
Compensation Commission of New South Wales [1982] 1 N.S.W.L.R.
239 and Brinds Ltd. v. Offshore Oil N.L. [1986] V.R. 635. As
to applications for special leave to appeal to the High Court,
there is a decision of the Queensland Full Court, McMillan v.
Hambledon Nominees Pty. Ltd. (No. 2) [1991] 1 Qd.R. 118, in
which the jurisdiction was assumed to exist, presumably
because of the decision of Brennan J. in Jennings Construction

Limited v. Burgundy Royale Investments Proprietary Limited

(1986) 161 C.L.R. 681 in which it was distinctly held to exist
(684). We refer to Nguyen v. Nguyen (1990) 169 C.L.R. 245 at
269, 270 for the proposition that intermediate appellate
courts should not regard themselves, now that there are no
appeals as of right to the High Court, as strictly bound by

their own previous decisions.

The Queensland Court of Appeal has, in our view,

jurisdiction to stay one of its own orders, to allow it to be
challenged on an application for special leave to appeal to
the High Court. That was, in effect, done by the Court on 15
February, for that express purpose, and all we are asked to do
is to extend the stay further. It seems to us plain that we
should do so, because the question raised is an arguable one
and, more importantly, because unless the stay is extended
there will be little or no point in the High Court

proceedings.

We also take into account that the extension of the stay

would not, as it seems to us, cause any significant
inconvenience to the respondents. Their counsel complained
that stays would inhibit their preparation of the case unduly,
but that is not entirely so. The fourth order made by Thomas
J. in each case permits the identification of the applicants
and their addresses and occupations, as well as of information
derived from documents in the proceedings "to the extent
necessary for the preparation of the parties' cases and on the
undertaking first obtained of the person to whom the matter is
published not to republish the matter ...". Counsel for the
respondents contended that if the decision of the Court of
Appeal is not disturbed by the High Court, then their clients
might not gain full advantage from that unless there were a
substantial gap in time - Mr. Doyle suggested six months -
between unrestricted publicity being given to the matter and
the date of trial. Mr. Harrison Q.C., who led for the
applicants, did not resist the inclusion in our order of a
provision designed to ensure that the stay would not continue
in force until trial, so that there would be such a gap as was
desired by the respondents.

Another complication in the matter is that third party

proceedings have recently been taken against insurers, who are
affected by the orders of Thomas J., although they were not
parties to the proceedings when those orders were made. The

third party proceedings will no doubt tend to delay the trial.

Although it was submitted that the applicants should not be

allowed to pursue their actions at all during the stay, we see
no reason for making an order to that effect. Nor do we think
it a proper course to insert any specific limitation designed
to achieve the result which the respondents desire and the
applicants do not oppose, namely that the trial shall not
commence until some time after the termination of the stay.
That seems to us unnecessary at this stage and the problem of
achieving such a gap is, we think, best left to be dealt with
if any dispute about it arises, in accordance with the
circumstances then existing. The orders we have made continue
the stay until the High Court disposes of the matter; this
has been done for convenience, but of course that Court might
make some other order for a stay, or remove the stay.

The order in each case is as follows:

That the order of the Court of Appeal

of 15 February 1993 setting aside the
orders of Thomas J. be stayed until the
plaintiffs' application for special leave
to appeal to the High Court has been
disposed of, provided that if special
leave is granted the stay will continue
until the appeal is disposed of and
provided further that the stay may be set
aside or varied on application to this
Court. Costs reserved.