McNeill v Seltsam Pty Ltd

[2005] NSWDDT 51

Dust Diseases Tribunal

of New South Wales

CITATION:	McNeill v Seltsam Pty Ltd [2005] NSWDDT 51
PARTIES:	Father Robert McNeill v Seltsam Pty Ltd
MATTER NUMBER(S):	84 of 2005
JUDGMENT OF:	Duck J at 1
CATCHWORDS:	Miscellaneous Matters :-
CASES CITED:	Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685; Middle Harbour Investments Ltd (in liquidation) Court of Appeal [15 December 1976] unreported
DATES OF HEARING:	14 September 2005
EX TEMPORE JUDGMENT DATE:	09/14/2005
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr A McSpedden instructed by Turner Freeman FOR DEFENDANT Mr W Austron instructed by Makinson and D'Apice

JUDGMENT:

Dust Diseases Tribunal of New South Wales

Matter Number DDT84 of 2005

Father Robert McNeill

v
Seltsam Pty Ltd
14 September 2005

JUDGMENT

DUCK J

The Tribunal has before it an application by the defendant for a stay of proceedings in respect of a judgment given about ten days ago in this case. The date of judgment was 5 September 2005 today I see is 14 September. At the time judgment was given the order contemplated by it was made and published reasons were then handed to the parties. Before anyone had any chance to read the reasons the defendant indicated that it wished to appeal. I mentioned at the time to Mr Sinnadurai, who was then appearing for the defendant/applicant, "You haven't even read the judgment yet." That did not seem to slow him down at all, he wanted to make this application.

Pursuant to directions given an affidavit has been filed in support of the stay. The affidavit points out at par 5 the right of the defendant to appeal on a point of law, so much may be accepted. Par 6 indicates that the defendant has instructed him to prepare an appeal and to obtain advice in drafting the notice of appeal. Those steps I gather are still in train. There is nothing to suggest at this stage that any notice of appeal has been prepared. Par 7 sets out possible grounds of appeal. Those are matters which have been subjected to criticism in written submission made by counsel now appearing for the respondent/plaintiff.

It is sufficient I think to point to the way in which the possible grounds of appeal are introduced, which is this way:

Subject to the advice of senior counsel the grounds of appeal may include (A to F).

It is apparent that the grounds of appeal have not yet been determined. Par 8 contains the observation by Mr Sinnadurai that when he has got his advice from senior counsel there may be further grounds of appeal. That simply reinforces what I have said. I note from par 9 that the quantum of damages is not what is troubling the defendant but rather the question of whether the plaintiff was entitled to succeed at all.

The Court has been directed in submissions to the decision of the Court of Appeal in Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685, in particular 693 to 695. The principles governing stays are discussed. It may be accepted that the case in which the principles were discussed was a commercial case but the Court was clearly setting out to give general guidance.

It may be accepted, firstly, that no special circumstances need be demonstrated for a court to order a stay.

Secondly, it is pointed out that appeals are now common whereas in earlier times they were less common. The approach to be taken to granting a stay is discussed by reference to the judgment of Mahoney JA in Re Middle Harbour Investments Ltd (in liquidation) Court of Appeal 15 December 1976 unreported. The introductory remark is as follows:

Where an application is made for a stay of proceedings it is necessary that the applicant demonstrate an appropriate case. Prima facie the successful party is entitled to the benefit of the judgment obtained by him and is entitled to commence with the presumption that the judgment is correct. These are not matters of rigid principle and a court asked to grant a stay will consider each case upon its merits but where an applicant for a stay has not demonstrated an appropriate case but has left the situation in the state of speculation or of mere argument weight must be given to the fact that the judgment below has been in favour of the other party.

It is submitted in this case that the applicant defendant in effect regards the issue determined as commercially important and one which was always to be the subject of an appeal. So much may be accepted but what was true on the day the judgment was handed down remains true today. The applicant for a stay must demonstrate an appropriate case. It is not sufficient that the applicant has a commercial desire to upset a judgment. Such an approach may be entirely justifiable but of itself does not constitute, it seems to me, ground for staying proceedings. We are now at the stage where the defendant is in the course of obtaining advice from senior counsel about an appeal. It may be that when grounds of appeal are formulated different considerations will arise but at this stage it does not seem to me that a case has been made out for the judgment to be stayed.

I note in this regard the observation contained at 694F of the report of Alexander:

The mere filing of an appeal will not of itself provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears. [references supplied].

If it were otherwise proper to grant a stay the terms proposed by the applicant seem to me to be an attempt to be reasonable and acceptable. But for the reason that I do not believe any case has been made at this stage for the grant of a stay I refuse the application.

There is no evidence either way about the financial affairs of the plaintiff other than some evidence in the case itself to the effect that he is now living in a retirement place at St Ives and that he is a retired priest of 78. Issues of that type have not been attempted to be ventilated by either side.

I dismiss the application.

Mr A McSpedden instructed by Turner Freeman appeared for the plaintiff

Mr W Austron instructed by Makinson and d’Apice appeared for the defendant

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