Sims v Suda Ltd
[2014] WASCA 113
•28 MAY 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SIMS -v- SUDA LTD [2014] WASCA 113
CORAM: NEWNES JA
HEARD: 22 MAY 2014
DELIVERED : 28 MAY 2014
FILE NO/S: CACV 11 of 2014
BETWEEN: DOUGLAS ARTHUR SIMS
Appellant
AND
SUDA LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STONE DCJ
Citation :SIMS -v- SUDA LTD [2014] WADC 7
File No :CIV 2168 of 2011
Catchwords:
Practice and procedure - Application for suspension order - Civil Judgments Enforcement Act 2004 (WA), s 15 - No grounds made out
Legislation:
Civil Judgments Enforcement Act 2004 (WA), s 15
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr M L Bennett
Solicitors:
Appellant: In person
Respondent: Bennett + Co
Case(s) referred to in judgment(s):
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203
Sims v Suda Ltd [2014] WADC 7
Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168
NEWNES JA: The appellant has appealed against the dismissal of his claim against the respondent in the District Court: Sims v Suda Ltd [2014] WADC 7. On 13 March 2014, the appellant applied, in effect, for an order suspending enforcement of the order of the primary judge that the appellant pay the respondent's costs of the action, pending the determination of the appeal. On 22 May 2014, I dismissed the appellant's application with costs. I said I would provide reasons for my decision. These are the reasons.
It is unnecessary for present purposes to canvass the issues which arise on the appeal. Suffice it to say that the appellant brought proceedings in the District Court against the respondent claiming damages for his alleged wrongful constructive dismissal by the respondent. In October 2013, the action went to trial over seven days before the primary judge. His Honour delivered judgment on 5 February 2014, dismissing the appellant's claim. He ordered the appellant to pay the respondent's costs of the action and, for the purposes of the taxation of those costs, ordered that, apart from any limit as to the hourly rate of a practitioner, any limits fixed by any relevant costs determination be removed.
On 3 April 2014, the respondent's costs were taxed and allowed at the total sum of $212,133.52. The appellant seeks to prevent steps being taken by the respondent by way of execution to recover those costs until the appeal has been determined.
An order suspending the enforcement of a judgment may be made under s 15 of the Civil Judgments Enforcement Act 2004 (WA) (the Act) if there are 'special circumstances' that justify doing so or, alternatively, the court has power under its rules to grant an interim order in the form of a stay of execution pending the hearing of the appeal. I take the appellant's application to be made on those alternative bases.
While there can be no hard and fast rules as to what constitutes 'special circumstances', the general principles applicable to an application under s 15 of the Act are those described in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308: see Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203 [3]. Those applicable to an application under the rules are not materially different. In respect of an application of the present kind, the general principles were set out by Pullin JA in Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 [22] as follows:
(a)The successful litigant is ordinarily entitled to enforce a judgment pending the determination of any appeal.
(b)It is for the applicant for a stay to move the court to a favourable exercise of its discretion. Under s 15(3) [of the Act] this court may only make a suspension order if there are 'special circumstances' that justify doing so and in an application for a stay under the rules this is also a usual requirement.
(c)The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation or whether a refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. This may shortly be described as requiring the court to consider whether the right of appeal will be rendered nugatory if a stay is not granted.
(d)If it can be demonstrated that the right of appeal will be rendered nugatory if a stay is not granted, the stay will generally still be refused unless it can be established that the appeal has ultimately reasonable prospects of success.
(e)Finally, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted.
The appellant's affidavit in support of the application appears to have been prepared with little regard to those principles, although in correspondence in connection with this application the respondent's solicitors specifically referred the appellant to the decision in Eastland Technology Australia Pty Ltd v Whisson.
In his affidavit, the appellant says, in substance, that since the trial certain 'new evidence' has come to light which he has referred to the police and which could lead to the respondent's directors being charged. (The appellant does not indicate the nature of the offences with which he believes they might be charged.) The appellant further says that 'information adduced from Germany discloses further indictable offences by the Board of [the respondent] which has the distinct potential to deny the Appellant to recover of the costs Order [sic] by Stone J [sic] should the Appellant's appeal be upheld, charges laid and a massive Class Action commenced against [the respondent] rendering it insolvent'. The 'information' is alleged to be that in the course of raising funds from investors the respondent had withheld from investors and the public that a claim for 8 million euros had been made against the respondent. The appellant has annexed to his affidavit in relation to the alleged claim a document which is in German. The nature of the document is not evident and no English translation is provided.
The appellant submitted that if he paid the costs of the action to the respondent pending the determination of the appeal and such a class action was successfully brought, he would be unable to recover the costs if the appeal succeeded. The appellant further submitted that if the directors of the respondent were charged with fraud the respondent would necessarily collapse, with the same result.
The application is misconceived. It is without any proper factual foundation. It is based simply on conjecture as to what could happen in the future and as to the consequences of the predicted events if they were to come to pass. Such conjecture provides no basis for precluding the respondent from enforcing the costs order prior to the determination of the appeal and there is nothing else that might do so. Putting aside that conjecture, the appellant does not suggest that if the costs are paid there is any real prospect that the respondent would be unable to repay them if the appeal is successful. Nor is there any evidence that the order sought is otherwise necessary to preserve the subject matter or the integrity of the litigation, or that in the absence of such an order there might be practical difficulties in respect of the relief which may be granted on appeal. On the material before me, the interests of justice do not require that enforcement of the judgment be suspended or stayed.
It was for those reasons I dismissed the application and ordered the appellant to pay the respondent's costs of the application to be taxed.
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