Johnston v Aldridge - [2020] SADC 110

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Interlocutory Application)
JOHNSTON v ALDRIDGE
[2020] SADC 110
Decision of His Honour Judge O'Sullivan
12 August 2020
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - ENFORCEMENT OF JUDGMENTS AND ORDERS
The respondent seeks a stay of enforcement of judgment pending the determination of his application for special leave to appeal to the High Court.
The original proceedings concerned an action in defamation. Just prior to trial, the respondent filed an application to amend his defence to plead fresh defences and a cross-claim. The application was dismissed and the Court ordered the respondent to pay costs in the amount of $1900 forthwith. That amount has not been paid.
At trial, the Court found in favour of the applicant and damages were assessed at $100,000, with interest to be fixed by a Master of the Court. The Court ordered the respondent to pay the applicant’s costs on an indemnity basis. Neither the damages nor any costs have been paid by the respondent.
The respondent appealed to the Full Court of the Supreme Court of South Australia. The appeal was dismissed and the Full Court awarded costs of the appeal to the applicant on an indemnity basis.
The respondent has applied for special leave to appeal to the High Court.
Held: application for stay dismissed.
1. A stay sought before special leave is obtained will only be granted if “exceptional circumstances” are demonstrated. It is a matter for the discretion of the Court with the overriding principle being the interests of justice.
2. The respondent’s application does not amount to “exceptional circumstances” such as to warrant a stay of the enforcement of the judgment to which the applicant is entitled.
3. The respondent is to pay the applicant’s costs of and incidental to the application fixed in the sum of $1000.
District Court Rules 2006 (SA); Uniform Civil Rules 2020 (SA); Judiciary Act 1903 (Cth); Enforcement of Judgments Act 1991 (SA), referred to.
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Duffy v Google Inc (2015) 125 SASR 437; Accordent Pty Ltd & Portellos v Bresimark Nominees Pty Ltd & Ors [2008] SASC 292, considered.

JOHNSTON v ALDRIDGE
[2020] SADC 110
Introduction

This is an application by the respondent, Mr Aldridge, in which he seeks a stay of enforcement of judgment pending the determination of his application for special leave to appeal to the High Court.
In his application, the respondent did not identify the specific rule or act under which the application was brought, relying instead on the general interlocutory provisions in rule 131 of the District Court Rules 2006. The specific provision in the District Court Rules 2006 is rule 192 however on 18 May 2020, the Uniform Civil Rules 2020 came into force. The 2020 rules apply to this application, specifically rule 12.1(2)(o). There is no material difference between District Court Rule 192 and rule 12.1(2)(o).
Section 17 of the Enforcement of Judgments Act 1991 also applies and is in these terms:
17. A party against whom a judgment has been given may apply to the court for a stay of execution, and the court may, if satisfied that there is a proper reason for granting the stay, grant the stay on such terms as it considers appropriate.
Documents relied upon
The respondent reads and relies upon his affidavit sworn 1 July 2020.
The applicant reads and relies upon:
1The affidavit of Michael Alexander Fotheringham sworn 4 May 2019 (“first Fotheringham affidavit”); and
2The affidavit of Michael Alexander Fotheringham sworn 16 July 2020 (“second Fotheringham affidavit”).
The applicant also relies upon his written submissions.
Mr Doyle of Counsel, who appeared for the applicant, objected to a number of paragraphs of the respondent’s affidavit, specifically [11]-[16], [20]-[21], [27]-[29], [30] and [38] on the basis that the matters deposed to in those paragraphs were conclusory in nature.
There is force in Mr Doyle’s objection. Nevertheless, I will receive the paragraphs in question for the purposes of this application with the ultimate question being the weight to be afforded to the matters raised in each of those paragraphs.
Background
The history of the matter is succinctly set out in the second Fotheringham affidavit.
In short, the applicant commenced proceedings in defamation on 20 April 2018.
Just prior to trial the respondent filed an application to amend his defence to plead fresh defences and to institute a cross-claim. That application was dismissed and the respondent was ordered to pay costs in the amount of $1900 forthwith. It has not been paid.
On 28 June 2018, judgment was delivered by his Honour Judge Brebner in favour of the applicant, with damages assessed at $100,000. Interest was to be fixed by a Master of the Court. The respondent was ordered to pay the applicant’s costs of action on an indemnity basis.
Neither the damages nor any costs of the action have been paid by the respondent.
The respondent appealed to the Full Court of the Supreme Court of South Australia. On 1 May 2020, the Full Court dismissed the appeal in relation to both liability and quantum. By decision dated 22 May 2020, the Full Court awarded the costs of the appeal to the applicant on an indemnity basis.
When the application for a stay was first made in this Court, I referred the matter to the Full Court of the Supreme Court. The matter was returned to me for determination.
The respondent’s application for special leave to appeal to the High Court
The basis of the respondent’s application is set out in the respondent’s affidavit sworn 1 July 2020.[1] At the hearing of this matter I was also provided with a copy of the respondent’s application for special leave to appeal.
[1] FDN 52.
Pursuant to section 35A of the Judiciary Act 1903, in considering whether to grant special leave to appeal, the High Court may have regard to any matters it considers relevant but shall have regard to:
(a)whether the proceedings in which the judgment to which the application relates was pronounced involve a question of law:
(i) that is of public importance, whether because of its general application or otherwise; or
(ii) in respect of which a decision of the High Court, as the final appellate court, is required to resolve differences of opinion between different courts, or within the one court, as to the state of the law; and
(b)whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court of the judgment to which the application relates.
In his affidavit, the applicant describes the grounds of the application as “reasonable grounds of special interest, to the nation as a whole”. During the course of the argument, he explained that that ground referred to a constitutional ground and the High Court’s decision in Lange v Australian Broadcasting Corporation.[2]
[2] (1997) 189 CLR 520.
Mr Doyle submitted that each of the grounds relied upon, with two exceptions, related to either a procedural matter or findings of fact.
The two exceptions relate to:
1A finding in the Full Court that the appellant was responsible for third-party comments; and
2An assertion that the Full Court erred in the application of the principles in Lange v Australian broadcasting Corporation.[3]
[3] Ibid.
As to the first of the above two grounds, Mr Doyle submitted that there is no controversy in the law concerning secondary comments as set out in Duffy v Google Inc,[4] nor any misapplication of the principles by the Full Court in the appeal in this matter such that it is an unsuitable vehicle to challenge the underlying principles.
[4] (2015) 125 SASR 437.
In relation to the second ground, Mr Doyle submitted that the respondent was a mere aspirant for election and that in any event his defence which relied on the principles in Lange was specifically rejected.
As a result, Mr Doyle submits that the application for special leave to appeal has no, or insubstantial, prospects of success. He points to the High Court rules which provide that where an applicant is self-represented, the respondent to the application will not be called upon to respond unless a direction to do so is made by two High Court justices. There has been no direction for Mr Johnston to respond to the application.
I have had regard to each of the grounds set out in the respondent’s application for special leave.
I accept Mr Doyle’s characterisation of the nature of the respondent’s grounds in his application for special leave.
General principles
The principles relating to a stay of the enforcement of a judgment pending the hearing and determination of an application for special leave in the High Court were set out by Layton J in Accordent Pty Ltd & Portellos v Bresimark Nominees Pty Ltd & Ors[5] where her Honour said:
[5] [2008] SASC 292, [17]-[28].
An application for a stay pending the hearing and determination of special leave to the High Court requires the exercise of broad jurisdiction. It is a discretion to be exercised as the interests of justice requires, whether it be an exercise of the court’s inherent jurisdiction or the power conferred by s 17 of the Enforcement of Judgments Act.[6]
[6] Duke Group Ltd (In Liq) v Pilmer [1999] SASC 373.
The criteria which guide the grant of a stay pending the hearing and determination of an application for special leave in the High Court is that set out in Jennings Construction v Burgundy Royale Investments Pty Ltd (“Burgundy Royale”).[7]
[7] (1986) 161 CLR 681.
In that case, Brennan J stated:[8]
[8] Ibid 685.
…
In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court’s discretion. In each case when the Court is satisfied a stay is required to preserve the subject matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the Court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.
The criteria to be considered for a grant of stay before special leave is obtained is more onerous than that to be considered after special leave is obtained. In particular, a stay sought before special leave is obtained will only be granted if “exceptional circumstances” are demonstrated.[9] (emphasis in the original)
Brennan J, in setting out the criteria guiding the granting of a stay, was not attempting to exhaustively indicate all of the circumstances that may enliven the jurisdiction.[10] The jurisdiction is enlivened if the enforcement of a judgment will result in significant irreversible loss or harm to the applicant.[11]
Further, not all of the criteria are required to be satisfied in order for a stay to be granted. The weight to be afforded to the factors is a matter to be assessed, having regard to the particular facts in a case.[12]
The fact that an appellant cannot establish that there is a “substantial prospect” that special leave will be granted by the High Court, is not necessarily fatal to an application to grant a stay.[13] It may be that prospects of the grant of special leave are no more than “not insubstantial” or “an arguable case”.[14]
…
The Chief Justice in Duke Group Ltd (In Liq) v Pilmer (“Duke Group”)[15] indicated that before considering the four factors referred to by Brennan J in Burgundy Royale, it was first necessary to see whether the jurisdiction was enlivened either by the need to preserve the subject matter of the litigation, or if the enforcement would result in significant irreversible loss or harm to the applicant should a stay be refused and should an appeal ultimately succeed.
[9] Duke Group Ltd (In Liq) v Pilmer [1999] SASC 373, [11]; Smith v New South Wales Bar Association (1991) 104 ALR 386, 388; Advanced Buildings Systems & Anor v Ramset Fasteners (Aust) Pty Ltd (1997) 145 ALR 121, 122-123; Territory Insurance Office v Costa & Sortino (2002) 11 NTLR 212, 219.
[10] Duke Group Ltd (In Liq) v Pilmer [1999] SASC 373, [19].
[11] Ibid [19].
[12] Territory Insurance Office v Costa & Sortino (2002) 11 NTLR 212, 227.
[13] Ibid 228.
[14] Ibid 225 and 228.
[15] [1999] SASC 373.
Subject to the jurisdiction being enlivened, it is a matter for the discretion of the Court with the overriding principle being the interests of justice.
Consideration
The respondent did not elaborate further on the matters raised in his affidavit sworn and filed in support of his application.
Mr Doyle referred to the chronology of the matter in the first Fotheringham affidavit[16] observing that the applicant instituted his proceedings in 2016, within 12 months of the defamatory statements being made, and that the matter was the subject of a long trial before his Honour Judge Brebner. After the judgment in this Court was delivered, the respondent instituted an appeal to the Full Court which was allowed to lapse on two occasions before the Full Court heard the appeal. The Full Court dismissed the appeal and ordered indemnity costs in favour of the applicant.
[16] At [17]-[31].
In the passage from the judgment of Layton J in Accordent Pty Ltd & Portellos v Bresimark Nominees Pty Ltd & Ors which I have set out above, her Honour refers to what Doyle CJ said in Duke Group Ltd (in Liq) v Pilmer & Ors.[17]The Chief Justice said that in considering an application for a stay, apart from the matters set out by Brennan J in Burgundy Royale, a preliminary step was required to establish whether the jurisdiction was enlivened either by the need to preserve the subject matter of the litigation or the enforcement would result in significant irreversible loss or harm should a stay be refused and an appeal ultimately succeed.
[17] [1999] SASC 373, [17]-[20].
There is no suggestion by the respondent that there is a need to preserve the subject matter of the litigation or that he would suffer significant irreversible loss or harm should the stay be refused and an appeal ultimately succeed. On that basis, the respondent has not satisfied what Doyle CJ described as a preliminary step to enliven the jurisdiction.
That is sufficient to dispose of this application, however I also consider the other criteria.
In Accordent, her Honour also observes that a stay sought before special leave is obtained will only be granted if “exceptional circumstances” are demonstrated.[18]
[18] [2008] SASC 292, [22].
In my view, there are no “exceptional circumstances” identified by the respondent such as to warrant a stay of the enforcement of the judgment to which the applicant is entitled.
As to the matters to which Brennan J refers in Jennings Construction:
1On the question of the respondent’s application for special leave, I am not in a position to assess the prospects of the respondent obtaining special leave to appeal, however I have accepted Mr Doyle’s characterisation of the grounds upon which special leave is sought. I note however that even if it be the case that the prospects of a successful application are insubstantial, by itself, that is not fatal to the respondent’s application;
2On the question of whether granting a stay will cause loss to the applicant and the balance of convenience, the applicant has been kept out of his damages since judgment was delivered in this Court on 27 June 2018. He has had to bear the costs of the action including an appeal to the Full Court of the Supreme Court.
In my view, the balance of convenience lies firmly with Mr Johnston.
Conclusion
In all the circumstances, I consider the jurisdiction to stay enforcement has not been enlivened but even if I am wrong in that, there are no exceptional circumstances demonstrated to warrant the granting of a stay. Further and in any event the balance of convenience favours the applicant and in the exercise of the Court’s discretion I dismiss the respondent’s application.
During argument, Mr Doyle indicated that in the event the application was unsuccessful, he would seek an order for costs to be awarded on a lump sum basis in the sum of $1000. I enquired of the respondent during the argument as to whether in the event I found against him, he objected to such an order. He said that he did not.
Accordingly, the orders will be:
1The respondent’s application that enforcement of the judgment against him be stayed pending determination of his application for special leave to appeal to the High Court is dismissed;
2The respondent is to pay the applicants costs of and incidental to the application, which I fix in the sum of $1000.