Kschammer v R W Piper and Sons Pty Ltd
[2003] WASCA 63
•20 FEBRUARY 2003
KSCHAMMER -v- R W PIPER & SONS PTY LTD & ORS [2003] WASCA 63
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 63 | |
| THE FULL COURT (WA) | |||
| Case No: | CIV:2543/2002 | 20 FEBRUARY 2003 | |
| Coram: | MURRAY J MILLER J | 20/02/03 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | DENNIS KSCHAMMER R W PIPER & SONS PTY LTD ROBERT LINDSAY PIPER THE ANI CORPORATION LTD trading as STEELMARK SANDOVERS EAGLE AND GLOBE |
Catchwords: | Practice and procedure Application for leave Appeal against grant of stay of proceedings Turns on own facts |
Legislation: | Nil |
Case References: | Burton v Zurich Bay Holdings Pty Ltd [1999] WASCA 211 Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220 Franich & Anor v Swannell & Ors, unreported; Sct of WA; Library No 940025, 28 January 1994 Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79 Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 Ruffles v Chilman [1999] WASCA 112 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : KSCHAMMER -v- R W PIPER & SONS PTY LTD & ORS [2003] WASCA 63 CORAM : MURRAY J
- MILLER J
- Appellant
AND
R W PIPER & SONS PTY LTD
First Respondent
ROBERT LINDSAY PIPER
Second Respondent
THE ANI CORPORATION LTD trading as STEELMARK SANDOVERS EAGLE AND GLOBE
Third Respondent
Catchwords:
Practice and procedure - Application for leave - Appeal against grant of stay of proceedings - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : Mr B L Nugawela
First Respondent : Mr J R Brooksby
Second Respondent : Mr J R Brooksby
Third Respondent : Ms B.A. Mangan
Solicitors:
Appellant : Marks & Sands
First Respondent : Greenland Brooksby
Second Respondent : Greenland Brooksby
Third Respondent : Phillips Fox
Case(s) referred to in judgment(s):
Burton v Zurich Bay Holdings Pty Ltd [1999] WASCA 211
Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220
Franich & Anor v Swannell & Ors, unreported; Sct of WA; Library No 940025, 28 January 1994
Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681
Case(s) also cited:
Ruffles v Chilman [1999] WASCA 112
(Page 3)
1 MURRAY J: I would ask Miller J to deliver his reasons first.
2 MILLER J: The applicant by motion before the Court dated 8 November 2002, seeks leave to appeal and seeks that the appeal in relation to which leave is sought should be determined by this Court today.
3 The application relates to an interlocutory decision of Judge Viol made in the District Court on 21 October 2002 granting the respondents a stay of execution upon a judgment pending the determination of their respective cross-appeals in FUL 121 of 2002 in terms of the draft notice of appeal dated 8 November 2000 and filed in the proceedings. The applicant seeks an order that the stay of execution be dismissed.
4 The action in the District Court was the subject of very extensive reasons for judgment delivered by Jenkins DCJ on 2 August 2002. It was an action for damages for personal injury brought by the applicant arising out of an industrial accident which occurred on 17 December 1992. Her Honour found for the applicant in the sum of $227,818.14. That sum represented 65 per cent of an assessment of $350,489.46, the reduction being due to the applicant's contributory negligence.
5 The sum of $227,818.14 was apportioned as to 65 per cent for the first and second respondents and 35 per cent for the third. The result was that at trial $148,081.80 was awarded against the first and second defendants and $79,736.34 against the third defendant.
6 There was then an application brought to the Registrar of the District Court for a stay of the proceedings. The Registrar, by order on 10 October 2002 stayed in respect of the judgment of $148,081.70 payable by the first and second defendants the sum of $97,500, pending the determination of the appeal in this Court, ordering the balance of $50,581.70 to be paid to the plaintiff by the first and second defendants within seven days. A similar order was made against the third defendant. It ordered that in respect of the sum of $79,736.40 payable by the third defendant there be a stay in the sum of $52,500 pending the appeal, with the balance of $27,236.40 to be paid to the plaintiff by the third defendant within a period of seven days.
7 There was an appeal from the decision of the Registrar to Viol DCJ on 21 October 2002. The appeal was allowed. His Honour's reasons
(Page 4)
reveal that his decision was given in two stages: firstly, his Honour determined that he was required to make an assessment as to whether there was an arguable appeal and, secondly, whether there were "financial implications" that constituted special circumstances. His Honour said:
"There were difficult questions of law at least for her Honour to consider and it is quite possible in my view for a case to be argued contrary to the findings of her Honour on some of the more complex legal matters. In those circumstances I take the view that there is a jurisdictional basis for me to consider this matter and that both the appellants are in a position to argue that there should be a stay of execution. The next question is whether or not there are, as I understand it, some - it would be necessary to consider the financial implications of the granting or not granting of the stay of execution."
8 Having heard further submissions on the question of whether or not impecuniosity was a major factor his Honour ruled:
"The remaining matter is the question of whether or not the appellant should be granted the stay on the basis that the financial position of the plaintiff is such that if the appeals were successful the appellants would be placed in a position where they would be unable to recover in effect any costs of the appeal by the plaintiff. The practical results need to be considered and the admitted perilous position of the plaintiff and the clear financial position that he is in is such that in my view it would be inappropriate for any part of the judgment to be paid to the plaintiff."
9 Counsel for the applicant has argued that the decision of Viol DCJ should be set aside, contending that it cannot be said that there is any strength whatever in the grounds of appeal. Counsel for the applicant referred in detail to the judgment of Jenkins DCJ and in essence submitted that it would seem that at least one of the respondents would be found liable even if one or other of the respondents were able to make good their grounds of appeal. Counsel submitted that in these circumstances it was clear that the applicant would recover in any event. Further, counsel contended that the grounds really had no significant chance of success and submitted that the suggestion that in those grounds it was far-fetched and fanciful for the applicant to have climbed the ladder on the material day could not be supported in any way.
(Page 5)
10 The principles to be applied in relation to whether or not a stay of execution should or should not be granted are clearly set out by Murray J in Franich & Anor v Swannell & Ors, unreported; Sct of WA; Library No 940025, 28 January 1994 in a passage cited by Anderson J in Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79 at 94. There the following passage was adopted:
"To grant the stay of execution should be regarded as an exceptional and extraordinary power … the Court will consider the grant of a stay if the applicant establishes that without it his or her appeal will be rendered nugatory because the subject matter of the litigation will be lost. In the case of the award of a sum of money I expect that that will only be the proper conclusion if it is established that in the hands of the party successful below, pending the determination of the appeal, the amount of the judgment or some substantial portion of it will be irretrievably lost."
11 Earlier Anderson J had cited the statement of Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681where his Honour said:
"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 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."
12 More recently perhaps in Burton v Zurich Bay Holdings Pty Ltd [1999] WASCA 211 at [8]McKechnie J gave a succinct statement of the principle in these terms:
"It is accepted by all parties that special circumstances must exist before a stay of execution will be granted. The general principles are gathered together by Murray J in Bridge Pump Co Pty Ltd v Fazio and Ors. In his words at 8 his Honour says:
(Page 6)
- 'One should not overlook the need for a case of sufficient persuasive power in support of the stay to lead the Court to the conclusion that there have been demonstrated special circumstances of an exceptional character of the kind to which I have referred which would justify the grant of a stay.'"
13 The respondents' primary submission is that the impecunious state of the applicant justified the decision of Judge Viol to grant the stay. It is submitted that the applicant and his wife are in a perilous financial position and on the verge of being evicted from their home, reference being made indeed to an affidavit of Nicholas Philip Lindsay sworn 19 September 2002 and filed in the proceedings.
14 The respondents point out that the applicant's income is a disability pension of only $345 per fortnight and that the main asset the applicant and his wife have is the family home at Lot 19 Hynes Road, Waterloo. This property was placed on the market in September 2001 for $299,000, but the asking price was reduced to $285,000. It did not sell and it is submitted that in the circumstances the true market value of the home could be no more than $285,000. Further, the applicant has debts of a substantial nature with a mortgage of just under $200,000. The respondents thus contend that the impecunious situation of the applicant is clearly demonstrated.
15 The judgment of Jenkins DCJ is very comprehensive, detailed and reasoned. The respondents were found to have been negligent. The prospective cross-appeals brought by the respondents in relation to the findings made by her Honour seem to me to be tenuous and I am of the view that it cannot be said that the grounds of appeal, which can only be considered at a superficial level at this point, reveal any prospects of success.
16 In relation to the impecuniosity issue, it seems to me that the combination of the orders made by the Registrar against the respondents and the undertakings which counsel for the applicant has made before the Court are quite sufficient to relieve the respondents of any danger of any successful appeal being rendered nugatory. The Registrar attempted to compromise the position by giving a measure of security to the respondents. With the addition of the undertakings given by counsel for the respondents today there is sufficient protection for the respondents.
(Page 7)
17 It seems to me that in all the circumstances the application for leave to appeal should be allowed, the appeal should be granted, with the result that the decision of the Registrar be restored. The undertakings made on behalf of the applicant and his wife by counsel for the applicant ought to be reduced to writing in the form of a minute to be submitted to Murray J's associate for his approval. They would be the orders that I would propose for those reasons.
18 MURRAY J: I am in very substantial agreement, if I may say so, with the reasons of Miller J and I agree with his Honour that the orders he proposes are those which are appropriate in this case. There is very little that I need to add, but it seems to me that I should say this: it is always of importance in such matters as this to keep firmly in mind, whether one is sitting on an appeal against an order for a stay of execution pending an appeal, or whether one is sitting upon an application for the making of such an order, to keep firmly in mind the exceptional nature of the order and that the starting point is always that the successful litigant at first instance has, prima facie, the right to execute the judgment obtained and to receive the benefits or, as it is sometimes put, the fruits of that judgment.
19 The approach to the question generally which seems to me to be appropriate is that which is conveniently to be found in the decision of Dawson J in the High Court decision of Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220 at 222 - 223. There his Honour focused attention, in a case where no special leave consideration applied, because it was a case where the stay was sought after the grant of special leave and pending the determination of the appeal, upon the exceptional nature of the remedy, and his Honour said this:
"Special circumstances justifying a stay will exist where it is necessary to prevent the appeal, if successful, from being nugatory. See Wilson v Church (No 2) (1879) 12 Ch D 454, at p 458; Klinker Knitting Mills Pty Ltd v L'Union Fire Accident and General Insurance Co Ltd (1937) VLR 142. Generally that will occur when, because of the respondent's financial state, there is no reasonable prospect of recovering moneys paid pursuant to the judgment at first instance. However, special circumstances are not limited to that situation and will, I think, exist where, for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored
(Page 8)
- substantially to his former position if the judgment against him is executed."
20 If one transposes for the word "appellant" in that case the word "cross-appellant" and if one understands that the respondent to which reference is made may be taken to be in this case the appellant, the respondent to the application for a stay, then it seems to me that the case still provides very useful guidance in the present context.
21 In the decision to which his Honour Miller J has referred, Hamersley Iron Pty Ltd v Lovell (No 2)(1998) 20 WAR 79, particularly at 89 to 90, Anderson J referred to the decision of Dawson J, and in particular commented upon the portion where his Honour spoke of the real risk that it would not be possible for a successful appellant to be restored substantially to his former position if a judgment against him was executed, as being the sense in which it was necessary to preserve the integrity of the litigation. Anderson J said:
"As I understand the cases, however, unless a stay is necessary to preserve the subject matter or integrity of the litigation in the broader sense described above the circumstances will not be regarded as sufficiently exceptional to enliven the discretionary jurisdiction to provide a stay. Only if the applicant can show that a stay is necessary to that end will the High Court go on to consider matters such as whether the application for special leave has a prospect of success, whether a stay will occasion hardship to the respondent, where the balance of convenience lies and so on. I think such matters are always treated as secondary to the question whether a stay is necessary to preserve the subject matter or integrity of the litigation. They come into play only if it appears that the refusal of a stay will substantially deprive the applicant of the benefit to be derived from the appeal. Thus an applicant may fail to obtain a stay even if the applicant can show that unless there is a stay the appeal will be futile."
22 It seems to me that it is in that primary area of the need to preserve the integrity of the litigation that Viol DCJ, in dealing with the appeal from the Registrar's order, erred in this case. The reliance that was placed upon the impecunious situation of the appellant, the present applicant, was in my opinion not shown to have been insufficiently or improperly dealt with by the way in which the Registrar sought to tailor the orders made by granting a very substantial stay, requiring payment out of the total
(Page 9)
- judgment of a sum of about $78,000. In the context of the financial position of the appellant as it was demonstrated then in evidence (and it appears to be substantially the same today) that seems to me to have been an appropriate exercise of discretion.
23 There were other matters which it seems to me Viol DCJ overlooked. They are referred to particularly by Anderson J in the passage that I have quoted and in the draft notice of appeal and they are these. It seems to me, firstly, that it is right to say, as Miller J does, that the best that can be said in relation to the respective cross-appeals of the respondents is that they may present arguable bases upon which the decision of the primary Judge as to liability may be overturned. It would seem to me then that it is not the position that the situation of the respondents is so strong that it may be seen of itself to provide some special circumstance justifying or requiring the grant of a stay.
24 But in any event, in addition to that, as I have said, the orders made by the Registrar factored in the financial situation of the appellant, and were tailored to provide a degree of protection in that regard. Further, undertakings were given, and given on oath, before Viol DCJ as before the Registrar, in relation to the prevention of the dissipation of the principal asset, the home of the appellant and his wife.
25 That was a factor to which, it seems to me, Viol DCJ gave too little consideration. In addition, it seems to me that his Honour gave no or too little consideration to the question identified by the third ground of appeal, a question which I take to be relevant to a consideration of the balance of convenience in this case, and that is that at present, as I understand the evidence, it is the case that the appellant is maintaining the mortgage payments in relation to the family home through the largesse or financial assistance of friends and family. That seems to me to be a position which provides a pressing consideration touching upon the balance of convenience, supporting the conclusion that at least to the extent necessary to terminate that situation the stay should have been refused. That seems to me, as I have said, to have been the situation aimed at by the orders of the Registrar.
26 In the final analysis therefore it seems to me that the appropriate orders are those to which Miller J refers.
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