Julia Farr Services Inc v Hayes

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,…