Roufas v Action Insulations Engineers P/L and Ors (Ruling)

[2005] NSWDDT 40

Dust Diseases Tribunal

of New South Wales

CITATION:	Roufas v Action Insulations Engineers P/L & Ors (Ruling) [2005] NSWDDT 40
PARTIES:	Anthony Roufas (Plaintiff) Action Insulations Engineers P/L (1st Def.) bernard Hastie (Australia) P/L (2nd Def) Amaca P/L (Formerley James Hardie & Coy Pty Ltd) (3rd Def) Wallaby Grip Ltd (4th Def) Wallaby Grip (BAE) P/L (5th Def)
MATTER NUMBER(S):	164/2004
JUDGMENT OF:	Johns J at 1
:-
DATES OF HEARING:	15/07/05
EX TEMPORE JUDGMENT DATE:	07/15/2005
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: D E Letcher QC instructed by Turner Freeman FOR DEFENDANT: W S Strathdee instructed by Phillips Fox appeared for the 3rd Def.

JUDGMENT:

JOHNS J

1.I have before me an application by the third, fourth and fifth defendants, for a stay of proceedings in respect of the amount assessed for economic loss The defendants require a limited period to allow a reasonable opportunity to assess the prospects of appeal. An appeal from the Tribunal must be based on a matter of law or wrongful admission of the evidence.

2. At this point of time, the question of whether or not in the defendants view an error of law has been made has not been considered. In my view the question of the amount is question of fact and is a matter for the trial judge.

3. There is no automatic right to a stay, and indeed, the general rule is as indicated, that prima facie the judgment appealed from is correct and the Court should not deprive the party of the fruits of his success. However, the right to a stay is incidental to the right of appeal. It is appropriate to apply to the trial judge.

4. But the mere fact that there may even be arguable grounds for appeal, and that has not been shown in this case, is not of itself a sufficient ground to grant a stay. It seems to me the question to ask is what circumstances warrant a departure from the general rule that the judgment at first instance is correct. Certainly the interests of justice should be served. In any event, an application for a stay may also be made to the Court of Appeal.

5. No circumstances have been put before me that convince me at this time that the general rule ought not to be followed. The question of whether the third, fourth and fifth defendants wish to appeal is yet to be decided. As indeed counsel for the third defendant has properly submitted that the plaintiff is under no pecuniary disability. As indicated in the judgment, he was a man of some financial means and if in the event of an appeal the defendants were successful, it seems to me that such sums would be recoverable. The plaintiff is not at any risk in regard to his health and it seems to me that no irreparable harm would be done by not granting a stay. The outcome is, that the defendants may still proceed with their appeal and the interests of justice still be served.

6. In those circumstances it seems to me that there is no reason why a stay should be granted.

7. I order the defendants to pay the plaintiff’s costs.

8. I grant an extension to the third, fourth and fifth defendants of a further seven days for the judgment monies to be paid to the plaintiff.

Mr D E Letcher QC instructed by Turner Freeman appeared for the Plaintiff

Ms W S Strathdee instructed by Phillip Fox appeared for the Third Defendant