Miller v Nationwide News Pty Ltd - [2008] NSWCA 261

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Miller v Nationwide News Pty Limited [2008] NSWCA 261

FILE NUMBER(S):
40111 of 2008

HEARING DATE(S):
13 October 2008

EX TEMPORE DATE:
13 October 2008

PARTIES:
William Walter Miller - Applicant
Nationwide News Pty Ltd - Respondent

JUDGMENT OF:
McColl JA

LOWER COURT JURISDICTION:
Court of Appeal

LOWER COURT FILE NUMBER(S):
CA 40111/08

LOWER COURT JUDICIAL OFFICER:
Hodgson, Bell JJA, Gyles AJA

LOWER COURT DATE OF DECISION:
8 September 2008

LOWER COURT MEDIUM NEUTRAL CITATION:
[2008] NSWCA 222

COUNSEL:
Applicant in person
Mr D R Sibtain - Respondent

SOLICITORS:
Blake Dawson - Respondent

CATCHWORDS:
PRACTICE AND PROCEDURE - application for stay pending application for special leave - principles to be applied - no prospect of grant of special leave - application refused.

LEGISLATION CITED:
Supreme Court Act 1970.
Uniform Civil Procedure Rules 2005

CATEGORY:
Procedural and other rulings

CASES CITED:
Advanced Building Systems Pty Limited v Ramset Fasteners (Aust) Pty Limited (1997) 71 ALJR 814
Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306
Jennings Construction Limited v Burgundy Royale Investments Pty Limited (No 1) [1986] HCA 84; (1986) 161 CLR 681
John Fairfax and Sons v Kelly (No 2) (1987) 8 NSWLR 51
Julia Farr Services Inc v Hayes [2003] NSWCA 142
Minister for Local Government v South Sydney City Council (No 3) [2002] NSWCA 327.
Sibuse Pty Limited v Shaw (No 2) (1988) 13 NSWLR 125
White v State Bank of New South Wales [2002] NSWCA 408

TEXTS CITED:

DECISION:
See [27].

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40111/08
McCOLL JA
Monday 13 October 2008

WILLIAM WALTER MILLER v NATIONWIDE NEWS PTY LIMITED

Judgment Ex Tempore

McCOLL JA: By Notice of Motion dated 2 October 2008, the applicant seeks a stay of costs orders, the detail of which I will come to shortly, pending an application for special leave to appeal to the High Court. The order sought, as expressed in the Notice of Motion, is:
“Permitted stay on cost, the respondent knew when defending this case, they wouldn’t recover cost, and just because they can, shouldn’t be allowed to put plaintiff into hardship, also this case is in the High Court of Australia and respondent should have to wait for the finish of that appeal to see what other cost if any.”
The applicant relies on his affidavit sworn 1 October 2008 in support of the application. The substance of its contents are virtually on all fours with the order sought in the Notice of Motion.
The proceedings arise from a case the applicant commenced in the District Court of New South Wales. He claimed that the respondent, Nationwide News Pty Limited, had entered into a contract to pay him $250,000 for certain information, that he had provided the information, that it had been published in The Daily Telegraph and that the respondent had failed to pay him.
The applicant was unsuccessful before Delaney DCJ. It appears that he sought to appeal from that decision but did so out of time on 16 June 2008. The Notice of Appeal appears to have been six days out of time, having been due to have been filed by 30 April 2008 but having, in fact, been filed on 6 May 2008: Uniform Civil Procedure Rules 2005, 51.16.
Beazley JA dismissed a Notice of Motion brought by the applicant seeking an extension of time to lodge a Notice of Appeal.
Beazley JA declined to grant an extension of time, concluding that the applicant did not have an arguable case on appeal. The applicant sought a review of that decision pursuant to s 46(4) of the Supreme Court Act 1970. The application came before a court constituted by Hodgson and Bell JJA and Gyles AJA on 8 September 2008. On that date the Court delivered an ex tempore decision dismissing the application for review with costs.
The leading judgment of the Court was delivered by Hodgson JA with whom Bell JA agreed, and with whom Gyles AJA also agreed, with some additional remarks, to which I will come.
It is apparent from Hodgson JA’s reasons that the issue before Delaney DCJ turned on whether the applicant’s version of events should be accepted or whether the evidence given by two Daily Telegraph reporters with whom the applicant had dealt, Ms Wockner and Mr McIlveen, ought be accepted.
In short, Delaney DCJ accepted that Mr McIlveen’s recollection of events should be preferred to that of the applicant and that, although the applicant believed he had an agreement with The Daily Telegraph that he would receive money for the information, he was mistaken in his recollection of what was said to him by Ms Wockner and Mr McIlveen when they made it clear to him that the Daily Telegraph would not pay. In those circumstances, as Hodgson JA records (at [5]), Delaney DCJ held there was no concluded contract and dismissed the claim.
The grounds the applicant wished to pursue in his Notice of Appeal were essentially that Ms Wockner and Mr McIlveen had given untrue evidence and, secondly, that since the applicant’s offer to Ms Wockner to give information in return for $250,000 was not rejected and since Mr McIlveen sought and received the information without telling the applicant he would not be paid, the applicant was entitled to payment on the basis of unconscionable conduct even if there was no contract.
There appear to have been a number of other matters set out in the applicant’s written submissions before Beazley JA to which Hodgson JA referred (at [7]) which I do not need to deal with and which do not appear to have been the subject of further consideration by his Honour.

Because, as Hodgson JA noted (at [10]), the effect of Beazley JA’s judgment was to put an end to the applicant’s appeal without a full hearing, the Court permitted the applicant to make further submissions concerning Delaney DCJ’s decision, including also complaints concerning matters of procedure in relation to a subpoena and questions of the admissibility of evidence.
It is apparent that in the course of the hearing the Court explained to the applicant that the question the Court had to decide was not whether there was a contract between him and The Daily Telegraph but whether the Court should overturn Beazley JA’s decision and that that, in turn, required the Court to be satisfied that her Honour’s decision was wrong: see Hodgson JA (at [12]). Hodgson JA held (at [13]) that Beazley JA correctly identified the question she had to determine in considering the extension of time application, namely, whether there was an arguable case on appeal, and concluded that the only remaining question was whether her Honour was in error in concluding that there was not.
Hodgson JA set out (at [14] – [20]) his consideration of the arguments raised by the applicant suggestive of error by Beazley JA but concluded (at [21]) that he was not persuaded that her Honour had erred. He was also not persuaded that there was any ground on which the Court could review her decision. As I said, Bell JA and Gyles AJA agreed with his Honour.
Gyles AJA also observed (at [26]):
“26 It seems to me that Beazley JA was correct in considering whether there was an arguable case on appeal if leave were granted, and that no appellable error has been identified in her Honour’s reasoning. It is not an at large review of that decision on the merits of it. The appellant has put forward a discursive series of points in no particular order designed to show error by the trial judge. It is not for this court to construct a coherent argument for the applicant. The issue below was a question of fact that depended entirely upon the assessment of oral evidence of witnesses. The issue was considered over several days by the trial judge and a reasoned judgment delivered. In my opinion an appeal, if leave were granted, would be hopeless.”
On 26 April 2008 the applicant filed an application for special leave to appeal from the decision of 8 September 2008.
As I have said, the applicant’s Notice of Motion was broadly expressed in terms of seeking a stay of costs orders. It appeared tolerably clear on the face of the papers that the costs in respect of which he sought a stay were those which had been the subject of the order by the Court on 8 September 2008. However, when the matter was called on and I sought to ascertain whether that was the case, the applicant said that the stay was sought in relation to the costs he was ordered to pay of the trial before Delaney DCJ, and of the costs he was ordered to pay as a result of the unsuccessful application before Beazley JA.
It then emerged that the applicant had received this morning a Bankruptcy Notice issued at the behest of the respondent by the Federal Court of Australia on 22 September 2008. That notice advised the applicant that Nationwide News claimed he owed it $91,371.90. A copy of the judgment relied upon by Nationwide News was attached to the bankruptcy notice. The judgment relied upon was one entered in the Supreme Court of New South Wales on 16 September 2008. Mr D R Sibtain, who appears for the respondent, said the amounts set out in that judgment are those referred to in a certificate of determination of costs issued on 3 September 2008 and relate to the costs of the District Court proceedings, those of the proceedings before Beazley JA, as well as to the costs of the costs assessment itself.
Although Mr Sibtain suggested that the Court of Appeal was not the appropriate forum in which the question of whether there should be a stay of the judgment of 16 September 2008 ought to be canvassed, I did not understand at the end of the day that he contended I ought not proceed with the application on the basis that it related to the costs the subject of the judgment of 16 September 2008 as well as those (apparently as yet unascertained) the subject of the costs order made on 8 September 2008 in the proceedings to which I have already referred.
I have approached the matter on that basis assuming, at least, that I can exercise the inherent jurisdiction of the Supreme Court in so doing.
The applicant did not adduce any evidence of his assets. He asserted that he would be unable to pay the amount set out in the Bankruptcy Notice and that if a stay of the costs order was not granted and he was in due course bankrupted his application for special leave would be rendered nugatory. I did not understand the respondent seriously to contest the proposition that the applicant would be unable to meet the costs the subject of the 16 September judgment, nor those which might in due course be ascertained as a result of the order made on 8 September 2008.
The principal point argued by Mr Sibtain in opposition to the application was that there were no prospects of the applicant succeeding in obtaining a grant of special leave. Mr Sibtain submitted that the principles which govern an application for a stay of judgment pending an application for special leave to appeal to the High Court were to be found in Minister for Local Government v South Sydney City Council (No 3) [2002] NSWCA 327. In that case Spigelman CJ said (at [10]) that the principles applicable to the grant of a stay pending an application for special leave were to be found in the judgment of Brennan J (as his Honour then was) in Jennings Construction Limited v Burgundy Royale Investments Pty Limited (No 1) [1986] HCA 84; (1986) 161 CLR 681, (particularly at 684 – 685). Relevantly for the purposes of the matter with which he was dealing Spigelman CJ said that Jennings was authority for the proposition that an intermediate court of appeal should not be diffident in granting a stay or an injunction in an appropriate case notwithstanding the difficulty that may sometimes be occasioned for a member of such a court in making an assessment of the prospects of a grant of special leave in a particular case. His Honour observed that it appeared on the authorities that a number of elements often arose in such matters and that it was always material to look at the prospects of success in the circumstances of a grant of special leave.
In Sibuse Pty Limited v Shaw (No 2) (1988) 13 NSWLR 125 the Court of Appeal, (Hope and Priestley JJA, Kirby P dissenting as to the result but not as to the principles), held that a stay would be granted pending an application for special leave to appeal to the High Court only if it was “appropriate”. Sibuse has been seen as applying a less stringent standard for this Court in considering an application for a stay pending a special leave application, than that which the High Court itself applies, where the jurisdiction is only exercised prior to a grant of special leave in exceptional circumstances: Advanced Building Systems Pty Limited v Ramset Fasteners (Aust) Pty Limited (1997) 71 ALJR 814; Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306 and White v State Bank of New South Wales [2002] NSWCA 408.
In White, Giles JA dealt with a submission that he should approach an application for a stay pending an application for special leave on the basis of the considerations described by Brennan J in Jennings. His Honour said (at [6]) that the Court of Appeal’s approach had not as yet adopted the stringency which had become evident in recent times in the High Court’s own decisions on stay applications. His Honour said that this Court’s approach was found in John Fairfax and Sons v Kelly (No 2) (1987) 8 NSWLR 51 and Sibuse and that, as he was sitting as a single judge exercising the powers of the Court of Appeal, and where the High Court itself had recognised the difference between the tests it applied and those this Court applied, but had not indicated the approach the Court of Appeal should take, he should follow the approach in Kelly and Sibuse. Giles JA’s decision in that respect was followed by Santow JA in Julia Farr Services Inc v Hayes [2003] NSWCA 142 (at 18).
The Sibuse line of authority does not appear to have been referred to Spigelman CJ in Minister of Local Government. Although, as I have noted, both streams of authority join on the relevance of the prospects of success of an appeal, it is desirable that the Court and litigants do not lose sight of a decision of three judges of this Court which affirmed a less stringent test, one which has been followed in other cases and one which has not yet been the subject of criticism by the High Court.
There are circumstances in which the Court will grant a stay of proceedings where an applicant is, as the applicant appears to be in this case, impecunious and cannot provide any security to preserve the status quo, an outcome a court would ordinarily regard as desirable in circumstances where a stay is sought. Such a stay might be granted in circumstances where, as the applicant submits, the appeal would otherwise be rendered nugatory. However, even in such a case the impecunious applicant must show that the appeal raises serious questions for the determination of the appellate court.
It is virtually impossible to distil from the applicant’s application for special leave the basis upon which he seeks to identify error which would attract a grant of special leave from the High Court. The application for special leave appears to be capable of description in the same terms as Gyles AJA described the argument advanced on 8 September 2008, namely, a discursive series of points in no particular order designed to show error.
Doing the best I can to understand the grounds upon which the applicant proposes to seek special leave to appeal I cannot discern that he has any prospects of obtaining a grant of special leave to appeal. The grounds upon which the applicant appears to propose to seek special leave to appeal to the High Court appear to be those matters on which he was unsuccessful before the Court on 8 September 2008. That of course does not indicate that he may not in due course be successful on a grant of application for special leave. However, the substantive basis upon which he appears to have lost at trial and to have been unsuccessful in persuading Beazley JA and, in turn, the Court of Appeal on review, to find in his favour turn on the acceptance of his evidence as opposed to that of two witnesses called by the respondent. The application for special leave to appeal appears to be based, as it was before Beazley JA, and before Hodgson and Bell JJA and Gyles AJA, on an attempt to set aside findings of fact made on an assessment of the evidence of competing witnesses. In those circumstances I cannot see that the application for special leave to appeal has any prospects of success.
I refuse the order sought in the Notice of Motion. I order the applicant to pay the costs of the application.

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LAST UPDATED:
20 October 2008