JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 November 2019
DATE OF JUDGMENT:	20 December 2019
DATE OF PUBLICATION OF DETAILED REASONS:	27 December 2019
CASE MAY BE CITED AS:	Stocks v Johns (No 2)
MEDIUM NEUTRAL CITATION:	[2019] VSC 854
JUDGMENT APPEALED FROM:	Stocks v Johns [2019] VSC 584 (Clayton JR)

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APPEAL — PRACTICE AND PROCEDURE — Appeal (de novo) against judicial registrar’s order staying appellant’s civil action for damages for personal injury arising out of motor vehicle collision pending outcome of respondent’s application for leave to appeal to Court of Appeal against her criminal convictions for recklessly causing serious injury in circumstances of gross violence and criminal damage arising out of same collision — Appellant, now aged 70, very seriously injured and unable to work since collision in May 2014 — Criminal trial conducted in October 2018 and respondent sentenced in February 2019 — Civil action commenced in 2018 — Whether civil action should be stayed pending finalisation of criminal appeal and possible retrial — Whether refusal to stay civil proceeding would create risk of prejudice to respondent in criminal proceedings by way of risk of self-incrimination — Whether appellant’s interest in pursuing civil action should prevail — Whether in the interests of justice to stay civil proceeding — Appeal allowed — Stay lifted — Further application for stay may be brought if criminal appeal succeeds and retrial ordered.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr A T Broadfoot QC with Mr L B R Allan	Henry Carus + Associates
For the Respondent	Mr D J Wallis	DLA Piper

HIS HONOUR:

Overview

On 14 November 2019, I heard an appeal against a judicial registrar’s order staying a civil action, brought by Robert Stocks against Samantha Johns, for damages for personal injury arising out of a motor vehicle collision.[1] The order was that the proceeding be stayed “pending the outcome” of Ms Johns’ application for leave to appeal to the Court of Appeal against her criminal convictions. Those convictions, for recklessly causing serious injury in circumstances of gross violence and criminal damage, were sustained in the County Court, and arose out of the same collision as gives rise to the civil action.
[1]Stocks v Johns [2019] VSC 584.

This appeal is brought pursuant to rule 84.05(3) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). Such an appeal is to be conducted by way of a hearing de novo.[2] In those circumstances, in order to succeed, Mr Stocks need not show any error in the judicial registrar’s reasons or even that her decision was wrong. Further, the parties agreed that it was for Ms Johns to persuade me to grant a stay, and not for Mr Stocks to persuade me that a stay should be refused.
[2]See rule 84.05(4)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Stocks v Johns (No 2)

Details

AGLC: Stocks v Johns (No 2) [2019] VSC 854
Case: [2019] VSC 854
Decision Date: 20 December 2019

CaseChat Overview and Summary

Stocks v Johns (No 2) involved a dispute between the plaintiff, Stocks, and the defendant, Johns, over whether the plaintiff's civil action for damages stemming from a motor vehicle collision should be stayed pending the outcome of the defendant's appeal against her criminal convictions. The case was heard in the Federal Circuit Court of Australia, which was asked to review a decision made by a judicial registrar to stay the plaintiff's civil action.

The primary legal issue before the court was whether the civil action should be stayed pending the finalisation of the defendant's criminal appeal and any potential retrial. The court also considered whether refusing to stay the civil action would prejudice the defendant in the criminal proceedings, particularly in terms of the risk of self-incrimination. Additionally, the court needed to determine whether the plaintiff's interest in pursuing the civil action should prevail and whether it was in the interests of justice to stay the civil proceeding.

The court found that the plaintiff's interest in pursuing the civil action should not be subordinated to the defendant's right to appeal. The court held that there was no real risk of prejudice to the defendant in the criminal appeal due to the civil action, and thus, the stay should be lifted. The court also noted that the plaintiff had suffered significant harm and was unable to work since the collision. Consequently, the appeal was allowed, and the stay was lifted. However, the court left open the possibility of a further application for a stay if the criminal appeal succeeded and a retrial was ordered.

Orders