Micarone & Ors v Perpetual Trustees Aust & Ors (No 3) No. Scgrg-94-1711, Scgrg-94-1917

[2000] SASC 211

MICARONE & ORS v PERPETUAL TRUSTEES AUST & ORS (NO 3)
[2000] SASC 211

Full Court:  Olsson, Debelle & Wicks JJ

1................ OLSSON J......... I will invite Debelle J to express the reasons of the court.

2................ DEBELLE J...... On 2 July 1999 this Court, by a majority, made orders allowing appeals by the defendants Perpetual Trustee Australia Limited and Messrs Belperio, Morris and Pearce and dismissed the appeal by the defendant Frost. Each of those three defendants had appealed against the decision of the trial judge both as to liability and as to the assessment of damages. The plaintiffs had filed notices of cross-appeal against the assessment of damages.  In the course of hearing those appeals it became apparent that there were so many possible contingencies which might affect the outcome of the appeals as to damages that the more prudent course was to adjourn the hearing of each of the appeals and cross-appeals as to damages. Given the decision of the majority, it was necessary to consider only the appeals and cross-appeals as to damages in respect of the defendant Frost. The court therefore adopted that course.

1. On 19 January 2000 the court delivered its judgment assessing the damages payable by Mr Frost. After delivering its judgment the court ordered a stay of execution on the application of the Micarones and the Becharas. Each of those parties had indicated an intention to appeal to the High Court. The court therefore made orders giving effect to its judgment but also made orders in both of the actions that the operation of the order be stayed until the expiration of the time prescribed by the High Court Rules for making an application for special leave to appeal but if, in the meantime, the application is made, the operation of the orders be stayed until further order, provided that the plaintiffs prosecute their applications for special leave to appeal with all reasonable expedition.

2. Subsequently, the Micarones, the Becharas and Frost filed separate applications for leave to appeal to the High Court. The application by Frost was not filed until 8 March 2000, well outside the prescribed time limit of 21 days. All of those applications for leave to appeal were listed for hearing by the High Court on 12 May 2000.

3. There is a dispute as to when the parties were informed of the likely hearing date and how the application books were prepared. However, a consideration of the facts as stated by counsel and a consideration of the objective facts leads us to the conclusion that, in April 2000, the parties were informed of a potential listing, at short notice, of the application in May 2000. The solicitors for the Micarones began to prepare the application books. The application books included all three applications for leave to appeal. However, at the request of Mr Frost or his solicitors the papers in relation to Mr Frost’s application for leave to appeal were excluded from the application books. When the matters were listed for hearing on 12 May, Mr Frost, or his solicitors, requested that his application not then be heard. In the result, only the applications by the Micarones and the Becharas were heard by the High Court. The applications were dismissed. On 6 June 2000, Mr Frost filed an amended application for leave to appeal.

4. Mr Frost now seeks a stay of the orders made by the court on 19 January 2000 on the ground that a refusal of the stay will render the appeal nugatory. Before examining the factors which affect the court’s discretion to order a stay, I mention that Frost did not make full and frank disclosure of the facts concerning the application for leave to appeal to the High Court in his affidavit. His affidavit filed in support of the application for the stay made no reference to the fact that he had asked for his application to be removed from the applications heard by the High Court on 12 May 2000. That fact was only disclosed in an affidavit sworn by the solicitor for the Micarones.

5. To summarise, Mr Frost was about six weeks late in filing his application for leave to appeal. There might be reasons which excuse that delay. However, the remaining issues tell against him, namely, that he expressly asked that his application be removed from the application book which was being prepared and that he asked that his application be removed from the applications listed for hearing on 12 May.

6. There is a further matter. The terms of the stay granted in each of these two actions required that the Micarones and the Becharas prosecute their respective applications for leave to appeal with reasonable expedition. It was apparent that they were prosecuting the appeals with all reasonable expedition. If Mr Frost sought to have the application removed from the list of matters being heard on 12 May, it was necessary for him then to apply to the High Court for a stay of execution lest the applications for leave made by the plaintiffs be dismissed. Even if he did not then perceive it to be necessary to make such an application, once the applications made by the Micarones and the Becharas for leave to appeal had been dismissed, it ought to have been apparent that there was then no stay affecting the judgment so far as he was concerned. No application for a stay has been made by Frost in the period of three weeks since the applications were heard by the High Court. Thus, there has been delay on the part of Frost and a failure by him to take any step to seek a stay prior to this application. Those are factors which must weigh heavily in the exercise by the Court of its discretion when considering whether a stay ought to be granted.

7. As I have said, the application is made on the ground that, if it is not granted, the appeal will be rendered nugatory. We are informed that the High Court will next be hearing applications for leave to appeal from this Court in early August. Notwithstanding that that is but two months distant, I do not think that is sufficient ground upon which to order a stay. There is every likelihood that the refusal of a stay will render the appeal nugatory. I have deliberately used the words “every likelihood” because ,although there is no positive evidence before the court as to Mr Frost’s financial position, throughout the conduct of this appeal there has been constant mention of the fact that he is impecunious and that fact has not been disputed in any respect.

8. However, that is only one of the matters which must be considered. Others are whether the grant of the stay will cause loss to another party. In this respect it is relevant to note that the Micarones and the Becharas will suffer substantial loss in consequence of the orders of this Court. The orders of this Court give them the right to seek some contribution for those losses from Mr Frost. Thus, a stay of those orders will render the Micarones and the Becharas liable to financial loss without the capacity to enforce the orders of the court in their favour against Mr Frost. Those are factors which also bear on the balance of convenience.

9. Notwithstanding that there is a real prospect that the failure to order a stay will render the appeal nugatory, it is my view that by reason of the failure of Mr Frost diligently to prosecute his appeal, his failure to seek a stay from the High Court on his deciding to withdraw his application for leave to appeal from the list, his failure to make full and frank disclosure to this Court, and the fact that the stay will cause further unnecessary hardship to the parties Micarone and Bechara, I would refuse the stay. In addition, the balance of convenience lies in ordering a refusal of the stay.

10. For all of these reasons, I would refuse a stay of execution of the orders.

13.............. OLSSON J......... I agree.

14.............. WICKS J.......................... I agree.