State of New South Wales v Thomlinson

[2017] NSWCA 115

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Thomlinson [2017] NSWCA 115
Hearing dates:	22 May 2017
Decision date:	22 May 2017
Before:	Basten JA
Decision:	(1)   Order that there be a stay of the payment of the outstanding balance of the judgment debt in the District Court.  (2)   The costs of today are to be costs in the appeal.
Catchwords:	PRACTICE AND PROCEDURE – appeal – stay of payment of judgment for damages pending determination of appeal – part payment made – some risk of non-repayment in event appeal succeeds – balance of convenience
Category:	Procedural and other rulings
Parties:	State of New South Wales (Applicant) Charles Henry Thomlinson (Respondent)
Representation:	Counsel: Mr M Spartalis (Applicant) Mr W Reynolds (Respondent)   Solicitors: Makinson d’Apice Lawyers (Applicant) Jeffery & Jeffery (Respondent)
File Number(s):	2016/386053
Decision under appeal	Court or tribunal: District Court Jurisdiction: Civil Citation: [2016] NSWDC 369 Date of Decision: 16 December 2016 Before: Hatzistergos DCJ File Number(s): 2014/94638

Judgment

1. BASTEN JA: The appellant, the State of New South Wales, seeks a stay of payment of the final portion of a judgment debt pending the hearing of the appeal in this matter. The judgment was delivered by Judge Hatzistergos on 16 December 2016. On 31 January 2017 the State paid an amount of $100,000 out of a debt of $186,000-odd, as it then stood, including interest. The judgment the subject of the appeal was delivered after a lengthy trial covering some ten days. The appeal seeks to challenge numerous aspects of the rulings of the trial judge; the grounds fail the test of conciseness, apparently challenging any possible finding of fact that may have been identified.

2. However, the way that the matter was summarised by counsel appearing for the State this morning was two-fold. One was a challenge to the lawfulness of the initial removal by police of the respondent from licensed premises where the police had been called upon by security guards and what happened thereafter was captured on CCTV. Secondly, there was a challenge to the reliance by the trial judge on the failure of the State to call various police officers in response to a claim for damages for malicious prosecution, in circumstances where the police brief had been tendered as part of the claimant's case. In these circumstances I accept that there is a reasonably arguable case on the appeal, although for the purposes of this hearing I have not attempted to relate the grounds of appeal to the judgment below.

3. With respect to the balance of convenience, there is some risk as to the ability of the respondent to repay any further amount, although I accept the submissions on his behalf that there could only be speculation as to whether that risk is significant. The circumstances that (a) there is no claim for damages for future economic loss, or (b) any amounts which would lead to hardship if they were not paid forthwith, and (c) more than half of the amount has already been paid, suggest that the balance of convenience favours a stay of payment of the rest of the amount, pending determination of the appeal.

4. That conclusion is fortified by the fact that this Court would be able to grant a hearing of this appeal within six to eight weeks if the parties were minded to accept that offer, an offer which I think has been conveyed by the Registrar to the parties. In those circumstances the Court orders that:

1. there be a stay of the payment of the outstanding balance of the judgment debt in the District Court pending determination of the appeal; and

2. the costs of today's hearing will be costs in the appeal.

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