Kingsley v Williams

[2000] QCA 14

[MISTEARL PTY LTD v WILLIAMS]

[2000] QCA 14

COURT OF APPEAL

McMURDO P

Appeal No 9836 of 1999

MISTEARL PTY LTD
ACN 061 805 972  Appellant (Applicant)

and

NICOLE WILLIAMS         First Respondent (First Respondent)

and

FAI INSURANCE
COMPANY LIMITED       Second Respondent (Second Respondent)

Appeal No 1859 of 2000

NICOLE WILLIAMS           First Applicant (First Defendant)

and

JENNIFER KINGSLEY  Respondent (Plaintiff)

and

MISTEARL PTY LTD                   Respondent (Third Party)

and

FAI GENERAL INSURANCE COMPANY LTD
  Second Applicant (Second Defendant)

Appeal No 1934 of 2000

NICOLE WILLIAMS           First Applicant (First Defendant)

and

JENNIFER KINGSLEY                    Respondent (Plaintiff)

and

MISTEARL PTY LTD               Respondent (Third Defendant)

and

FAI GENERAL INSURANCE COMPANY LTD
  Second Applicant (Second Defendant)

BRISBANE

..DATE 07/03/2000

JUDGMENT

THE PRESIDENT:  The applicants/defendants applied to this Court for a stay of proceedings between them and the respondent/plaintiff pending in the Maroochydore District Court, until the determination of their application to the High Court of Australia for a grant of special leave to appeal the judgment of this Court given on 8 February 2000 and amended on 29 February 2000, and if special leave is granted a further stay until the disposal of the appeal or further order.

The respondent's action against the applicants arose out of a motor vehicle accident in the course of her employment when she was struck by the first applicant who was reversing her motor vehicle. The second applicant was the licensed insurer of the motor vehicle. The respondent sued the applicants for damages for personal injuries arising from the incident. On 7 June 1999 the second applicant issued a third party notice claiming indemnity or contribution from the respondent's employer, relying upon section 6(c) of the Law Reform Act 1995.

The learned primary Judge found that because of the provisions of WorkCover Queensland Act 1996, section 6(c) of the Law Reform Act 1995 did not apply as the third party employer was not a tortfeasor "who is, or would if sued have been, liable" for damage suffered by the respondent.

The applicants unsuccessfully appealed to this Court for the reasons given in Bonser v. Melnacis and Anor, [2000] QCA 13, Appeal No 4369 of 1999, 8 February 2000, a matter heard contemporaneously with this appeal. As I have mentioned, the applicants now seek leave to appeal to the High Court. In Bonser, the Court expressed reservations ([44]-[46] of the reasons) about the conclusion in strong terms. Those expressed reservations may well be a significant factor in favour of the granting of special leave and demonstrate that prima facie the applicants have a clearly arguable case on appeal.

I am told that the special leave application and the hearing of any appeal may take up to 12 to 18 months by which time the respondent's action will be completed if it is not stayed.  It is anticipated the action will be completed within three to six months.  The applicants would then lose the opportunity to join the third party in this action and would need to commence a separate action against the employer for contribution, something which they are not entitled to do unless they are successful in their appeal to the High Court.

Although UCPR 761 does not appear apposite, this Court has an inherent jurisdiction to stay its own orders:  see J v.
L.A. Services Pty Ltd [1993] 2 QdR 380 and Jennings Construction Ltd v. Burgundy Royale Investments Pty Ltd (1986) 161 CLR 680 at 685.

It seems that this Court also has inherent jurisdiction to stay proceedings between plaintiff and defendant:  see J v. L.A. Services Pty Ltd at 382.   A stay of an order pending an application for leave to appeal is not usually given unless extraordinary circumstances are established and so much is conceded by the applicants.

To establish extraordinary circumstances it is relevant to consider matters such as whether the question raised is an arguable one and whether the appeal would be rendered nugatory if the stay was not granted.  Once extraordinary circumstances are shown, the issue of the balance of convenience is considered.

For the reasons I have mentioned, the question raised is clearly an arguable one. 

Although there is no doubt the applicants would be significantly disadvantaged if they are successful in their appeal and this stay is not granted, it cannot be said that the appeal would be rendered nugatory without the grant of the stay.  By the time the appeal is heard it is likely the respondent's action in the Maroochydore District Court will be determined.  On the other hand, the applicant, particularly the second applicant, the licensed insurer, will, if successful on appeal, have the benefit of a ruling in its favour which will have wide application in other cases and importantly it will also have the right to issue proceedings against the employer as there are no considerations of statutory time limitations in this case.

A stay would deny the plaintiff the opportunity to prosecute her action for damages for her injuries, which include back injuries, grazing, a haematoma, a fractured left upper lumbar pars grade 1, shock and psychological injury.

The applicants have failed to establish circumstances such as would warrant the granting of the stay.

I refuse the application.  I order that the applicants pay the respondent's costs of this application to be assessed.

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