Julia Farr Services Inc v Hayes

[2003] NSWCA 142

CITATION:	Julia Farr Services Inc v Hayes [2003] NSWCA 142 revised - 2/06/2003
HEARING DATE(S):	26/05/2003
JUDGMENT DATE:	26 May 2003
JUDGMENT OF:	Santow JA
DECISION:	Application for stay of proceedings declined; Costs of the Opponent to be paid by the Claimant.
CATCHWORDS:	PROCEDURE -- Application for stay of Court of Appeal judgment pending High Court appeal -- relevant factors including prospects of success on special leave to appeal.
CASES CITED:	Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460 E M Baldwin & Son Pty Ltd v Plane (1998) 17 NSWCCR 434 Jennings Construction Limited v Burgundy Royale Investments Pty Limited [No 1] (1986) 161 CLR 681 Julia Farr Services Inc v Hayes [2003] NSWCA 37 (28 April 2003, unreported) White and Anor v State Bank of New South Wales [2002] NSWCA 408 (11 December 2202, unreported) Wyong Shire Council v Shirt (1981) 146 CLR 40
PARTIES :	JULIA FARR SERVICES INC (Claimant) Ethel Barbara HAYES (Opponent)
FILE NUMBER(S):	CA 40011/03
COUNSEL:	D Toomey (Claimant) M J Joseph, SC (Opponent)
SOLICITORS:	Church & Grace (Claimant) Alex Stuart & Associates (Opponent)

CA 40011/03

SANTOW JA

26 MAY 2003 (revised 2 June 2003)

JULIA FARR SERVICES INC v Ethel Barbara HAYES

Judgment

1 By notice of motion filed on 20 May 2003 supported by affidavit the claimant seeks that execution of the judgment of this Court on 28 April 2003 and further execution of a judgment of Maguire CCJ on 20 December 2002 be stayed pending determination in the first instance of an application for leave to appeal to the High Court, or until the grant of such leave and the disposal of any such appeal by the High Court, whichever is the later, or until the High Court otherwise orders.

2 The relevant circumstances in broad summation are these. An action was originally brought in the Dust Diseases Tribunal of New South Wales sitting in Adelaide. Argument was put both in this Court and before the Dust Diseases Tribunal that the proceedings should not be heard by the Dust Diseases Tribunal but by the Supreme Court of South Australia. That argument failed both in this Court and before the Dust Diseases Tribunal.

3 The application was made in circumstances where the only parties before the Tribunal when the proceedings commenced before the Tribunal were resident in South Australia and where the torts sued upon were committed in South Australia and where the damage suffered as a result of those torts was suffered entirely in South Australia. I note in passing that there had been a defendant resident in New South Wales but proceedings had been discontinued against that defendant just before commencement of the actual hearing of the proceedings before the Dust Diseases Tribunal.

4 Essentially, the applicant, who was the defendant in the relevant proceedings, contended that because the grounds of appeal from the Supreme Court of South Australia, were it to have heard the matter, were wider, and may include not only a question of law (as with the Dust Diseases Tribunal) but also a question of fact, as was not available for appeal from the Dust Diseases Tribunal, that the matter should not be heard by the Dust Diseases Tribunal but by the Supreme Court of South Australia. It was argued that such rights of appeal were substantive and not merely procedural rights such that they should be dealt with in South Australia where the relevant torts had been committed.

5 On 20 December 2002 Maguire CCJ entered judgment for the opponent in the sum of $546,936.52.

6 Upon delivery of that judgment an oral application for a stay of that judgment was immediately made to Maguire CCJ on the ground that issues of significant complexity would be raised in any appeal. His Honour ordered a partial stay as to $346,936.52 of the judgment sum, on terms that the balance of the judgment sum, that is $200,000, was paid to the opponent, Mrs Hayes, within ten days and further that a notice of appeal in this Court was also filed in that ten-day period.

7 It can be taken that those matters were sufficiently complied with.

8 Mrs Hayes died in early March of this year. She did not have any dependants of minor age at the time of her death. Mrs Hayes’ husband gave evidence at the trial on or around 21 December 2002 that at the time, he had ceased work as a rigger and scaffolder, to care for his wife. To date the balance of the judgment sum, that is $346,936.52 has not been paid to Mrs Hayes or her estate.

9 The matter proceeded by way of appeal to the Court of Appeal which handed down judgment on 28 April 2003; see Julia Farr Services Inc v Hayes [2003] NSWCA 37, unreported. The applicant was unsuccessful before the Court of Appeal. In particular, Giles JA who wrote the leading judgment concurred in by Spigelman CJ and Cripps AJA concluded that appellate rights, though having the potential to affect outcomes, were fundamentally of a procedural nature; [52].

10 At [53] Giles JA concluded:

“53. While the label “procedural” is allowed, it may be better to see appellate rights as governed by the law of the forum simply because they are a given for litigation in the forum. In the present case, to take up what I have earlier said, the only right of appeal from the Tribunal was that conferred by s32, and there was no right of appeal to the supreme court of South Australia.”

11 At [60] and [61] Giles JA concluded, for the reasons there stated, that the appellant’s arguments on the constitutional issue should not be accepted. I quote below the relevant passages which should be read with those that immediately precede.

“60 Just as in that case there was no occasion to adapt the legislation to consistency with the legislative powers of the other States, so also in this case. In my opinion there is nothing offensive to the federal structure, requiring denial of the Tribunal's jurisdiction, in the existence of a restricted right of appeal from proceedings properly brought in the Tribunal compared to a wider right of appeal if the claim had been made in proceedings brought in some other court. Jurisdictional laws, including principles of forum non conveniens and the cross-vesting legislation, and choice of law determinations, accommodate to the federal structure. As Gaudron, Gummow and Hayne JJ made plain, denial of legislative competence is not called for.

61 In my opinion, therefore, the appellant's arguments on the constitutional issue should not be accepted. It is difficult to see how there could be any other result. Assume that there was a full right of appeal from the Tribunal to this Court but subject to a leave requirement not found in South Australia, or a full right of appeal from the Tribunal to this Court and a leave requirement in South Australia, or any other difference between the appellate regimes: the equivalent argument would mean no jurisdiction in the Tribunal. Assume a limited right of appeal from the District Court of South Australia and a full right of appeal within the Supreme Court of South Australia: the argument would collapse. Other illustrations could be given. On the test of practical application, the argument is unworkable.”

12 It should be noted that there was no appeal ground before the Court of Appeal which put in issue or sought to challenge earlier decisions of the Court of Appeal that had been decided on the basis of the correctness of Wyong Shire Council v Shirt (1981) 146 CLR 40 at 47-8; see for example: Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 esp at 328-329; E M Baldwin & Son Pty Ltd v Plane (1998) 17 NSWCCR 434 esp at [110].

13 Thus the claimant can derive no basis of support for its present application. Indeed it did not seek to do so from what appears as paragraph 8 of its grounds of application for special leave to appeal. Those grounds of appeal were handed up to me and it was stated on behalf of the applicant that the application for special leave to appeal would be lodged today.

14 The claimant essentially appeals on the basis that appeal rights are substantive rather than procedural and that, contrary to the decision of the Court of Appeal, the defendant’s rights to have the matter litigated in the Supreme Court of South Australia should not have been over-ridden by the plaintiff having first commenced proceedings in the Dust Diseases Tribunal, given the more limited rights of appeal of questions of fact from the latter Tribunal.

15 The opponent presses upon me that the prospects of a successful leave to appeal were, if not hopeless then so poor as to render that factor decisive in denying the claimant’s application for a stay.

16 It is appropriate that I now turn to the criteria and factors to be taken into account in granting or declining to grant the stay sought by the claimant. I am content to note the following matters for present purposes.

17 The starting point is the observations of Brennan J in Jennings Construction Limited v Burgundy Royale Investments Pty Limited [No 1] (1986) 161 CLR 681. Brennan J expressed the view that applications for a stay, as ancillary to proceedings in the High Court, should first be made to the Court from which special leave to appeal was sought. His Honour said that such courts should not feel inhibited in considering such applications. He stated that such courts would often have an advantage over the High Court in being familiar with a matter and therefore able to tailor their orders to meet the particular fact situations of this case.

18 Brennan J’s observations indicate that the relatively stringent approach adopted by the High Court as exemplified for example by Kirby J more recently in Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460 at [5] need not attend the approach of the Court of Appeal in stay applications. As was said by Giles JA in White and Anor v State Bank of New South Wales [2002] NSWCA 408 (11 December 2202, unreported):

“[6] The approach of the Court of Appeal has not, it seems to me, as yet adopted the stringency which has become evident in recent times in the High Court's own decisions on stay applications pending applications for special leave to appeal. The approach of the Court of Appeal is found in John Fairfax and Sons Ltd v Kelly (No 2) (1987) 8 NSWLR 51 and Sibuse Pty Ltd v Shaw (No 2) (1988) 13 NSWLR 125. I am sitting as a single judge exercising the powers of the Court of Appeal, and in those circumstances I think that where the High Court has itself recognised that its approach is somewhat more stringent than that of the Court of Appeal (see Kirby J in Bryant v Commonwealth Bank of Australia ), but has not indicated that its approach should be taken by the Court of Appeal, I should follow the approach in the cases last-mentioned.”

19 That case was relied upon by the opponent as supporting the proposition that what is relevant are the prospects of success in the application for special leave to appeal, as distinct from the appeal itself though the former’s prospects are not to be dissociated from the latter. While that factor was determinative in the application in White and Anor v State Bank of New South Wales (supra), that has to be understood in the circumstances of that case. At [3] those circumstances are sufficiently set out as quoted below:

“[3] If one were to assume prospects of success in that application, the circumstances would favour the stays sought. Mrs White has lived in the property with her children for well over ten years. State Bank intends, if it obtains possession, to sell the property, and the effect of loss of her home would be considerable. It is not something which would readily be compensated for by payment of a sum of money if special leave to appeal were granted and the consequent appeal were successful. Against that, of course, State Bank is losing interest on the value of the property, the value being of the order of $550,000, and will incur costs, and Mrs White having no means to recompense State Bank for the loss of the interest or pay the costs. The information before me is that the special leave application is likely to be heard in May, June or August next year, so that there would be loss of interest for at least something like seven or eight months and depending upon the success of the application a period thereafter until the appeal was heard. Nonetheless it seems to me that, in balancing that against the detriment to Mrs White if the property were sold, the detriment to her would outweigh the detriment to State Bank.

[4] That, it seems to me, is the position even if I take into account two further matters. The first is that Mrs White has had a long period of occupation of the property without payment to State Bank, dating from something like 1991, while State Bank first sought to obtain remedies other than against her and then while there was litigation with her. The second is that Mrs White has been less than active in prosecuting her application for special leave to appeal, and even now has not, it seems, complied with the Rules of Court in that respect.”

20 Thus it will be apparent that in that case, the balance of convenience already favoured the application for a stay by reason of the very adverse consequences if a stay were not granted, namely the sale of the applicant’s home for which monetary compensation would not likely suffice.

21 In the present case, no equivalent circumstances obtain, favouring a stay. It follows that because there may conceivably be some prospects of success on a leave application (it can be put no higher) that factor of itself is not decisive at all. It is common ground that I may assume that, if the payment of the judgment sum were made in full, there is no suggestion that the estate of the opponent would dissipate the funds, and I should not assume to the contrary. Nor is there any suggestion that the claimant is not good for the money that still remains to be paid.

22 It is invidious for a Court of Appeal to attempt to determine the prospects of success of a leave to appeal application unless those prospects are self-evidently hopeless. That could not be said here. In saying that, I deliberately make no other observation about the strength or weakness of those prospects.

23 In all the circumstances, and adopting a less stringent approach in the manner explained earlier than applied in the High Court in cases such as Bryant, I am not persuaded that a stay should be granted pending the application for leave to appeal.

24 It is trite law that a respondent has no automatic right to a stay of proceedings. Prima facie the judgment appealed from is correct and the Court should not deprive a party of the fruits of victory. When there are no considerations strongly or even plausibly pointing to a stay, I should not grant a stay. Accordingly I decline the application for a stay of proceedings. Costs should follow the event and accordingly I order costs of the opponent to be paid by the claimant.

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Last Modified: 06/03/2003