Sydney Anglican Schools Corporation t/as Roseville College v Mears (No 2)

[2016] NSWDC 442

District Court

New South Wales

Medium Neutral Citation:	Sydney Anglican Schools Corporation t/as Roseville College v Mears (No 2) [2016] NSWDC 442
Hearing dates:	3 February 2016
Date of orders:	03 February 2016
Decision date:	03 February 2016
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1)   Dismiss order 3 of the notice of motion filed 24 December 2015. (2)   Order the first defendant pay the costs of the plaintiff and the respondents in respect of order 3 of that notice of motion. (3)   Order that order (2) hereof is enforceable forthwith by the respondents but not the plaintiff, but stay that order until the conclusion of 26 February 2016 or, if a notice seeking leave to appeal listing the respondents as parties is filed by that date, the conclusion of the leave to appeal proceedings (and any related appeal) involving the respondents.
Catchwords:	CIVIL PROCEDURE — stay of costs order — pending appeal
Legislation Cited:	Uniform Civil Procedure Rules 2005, r 42.7
Cases Cited:	Sydney Anglican Schools Corporation t/as Roseville College v Mears [2015] NSWDC 348
Category:	Procedural and other rulings
Parties:	Sydney Anglican Schools Corporation t/as Roseville College (plaintiff) Grant Mears (first defendant) Gloria Mears (second defendant) State of New South Wales (first respondent to notice of motion) Helen Firbank(second respondent to notice of motion)
Representation:	Counsel: Mr F F F Salama (plaintiff) Mr G Sarginson (first respondent to notice of motion) Ms Gleeson (second respondent to notice of motion)   Solicitors: Diamond Conway Lawyers (plaintiff) Crown Solicitor NSW (first respondent to notice of motion) Thorburn & Marshal (second respondent to notice of motion)
File Number(s):	2007/308335
Publication restriction:	None

Judgment

1. On 26 November 2015 I made orders in this matter which were entered on that day, although apparently not recorded on the physical file. [1] Those orders included the following orders (3), (4) and (5) in respect of costs:

“(3) The first defendant, Mr Mears, pay the plaintiff's and the respondents' costs of and incidental to the application for orders 8, 9 and 13 of the motion (the application for leave to join parties and amend the cross-claim) and including any such costs of those reserved on 16 October 2015 but otherwise the costs of the notice of motion are reserved.

(4) The respondents have leave to enforce order (3) forthwith, as if the proceedings were concluded, and be otherwise excused from the proceedings in the absence of a further order, subject to order (5).

(5) Stay orders (3) and (4) for 2 weeks and grant liberty to Mr Mears to make an application within 2 weeks regarding orders (3) and (4).”

1. Sydney Anglican Schools Corporation t/as Roseville College v Mears [2015] NSWDC 348.

2. By notice of motion dated 24 December 2015, Mr Mears applies, not pursuant to the liberty granted in order (5), for a stay of orders (3) and (4). He has filed in the Court of Appeal a notice of intention to appeal the decision of 26 November 2015. As order (4) made on 26 November 2015 refers to the respondents and not to the plaintiff, it is only the respondents, namely the State of New South Wales and Helen Firbank, who are affected by the stay sought by Mr Mears today. The plaintiff, Roseville College, accepts that the effect of r 42.7(2) of the Uniform Civil Procedure Rules 2005 is that order (3) made on 26 November 2015 cannot be enforced by the College until the conclusion of these proceedings.

3. Mr Mears relies on the content of the notice of intention to appeal and on some medical certificates.  The notice indicates that the whole of the decision is subject to appeal, but gives no indication of the grounds of the appeal. 

4. The medical certificates indicate that Mr Mears has suffered from anxiety and depression, that he has a mental condition and is affected by an inability to concentrate and to prepare documents, and a lack of clarity of reasoning. These medical matters underline that Mr Mears may be doing himself (and his wife, whom he seeks to represent in the proceedings) a grave disservice by not obtaining legal assistance. In any event, I must determine whether a stay of the orders should be granted pending the determination of any appeal by Mr Mears in the matter.

5. The matters that appear to be relevant to this application can be considered briefly. The principle of finality and the presumption that a successful party ought not to be deprived of being immediately entitled to the benefit of an order are matters in favour of the respondents.  Related to this is the prejudice that the respondents suffer by presumably having to meet the costs of their own representation in the notice of motion without being able to enforce their entitlement to recover those costs.

6. On the other hand, the parties, including Mr Mears, will suffer wasted costs in undergoing the assessment process if Mr Mears successfully maintains an appeal.  Further, the filing of an appeal does represent a change of circumstances from those which existed at the time of my orders on 26 November 2015, because it is now apparent that whatever orders I make today will not bring an end to the dispute.

7. These matters indicate to me that if Mr Mears has some reasonable prospects of success on an appeal, I would be minded to grant a stay. 

8. I should also note that Mr Mears took no steps to avail himself of the liberty granted to him in order (5) made on 26 November 2015.  Further, Mr Mears did not identify any prejudice that would be cured by a stay of the costs order or that in some way his appeal would be adversely impacted upon by a failure by the Court to grant a stay of the enforcement of the order by the respondents.

9. Mr Mears has also failed to identify any basis upon which he could hope to obtain leave to appeal a procedural interlocutory decision.  He mentioned that he had created documents relating to the cross‑claim, but they were not tendered on this occasion and I was not persuaded that the appeal had any real merit or prospects of success.  I also take into account that Mr Mears is self-represented and the medical issues revealed by the documents he has tendered increase the prospect that the finalisation of the Court of Appeal proceedings could be delayed.

10. In these circumstances, I cannot find a basis either to disturb order (4) made on 26 November 2015 or to grant a stay of orders (3) and (4) of that date. If Mr Mears is able to gather some material that shows that the appeal has some merit, he remains entitled to make an application to the Court of Appeal for a stay.  And contrary to Mr Mears’ submission, the orders I have made do not deny Mr Mears the opportunity to move forward with the defence of his claim and to maintain any existing cross‑claim.

11. The matter has been set down for hearing on 28 November 2016, and Mr Mears now has the opportunity fully and properly to prepare for that event.

12. Accordingly, I propose to dismiss the application contained in order 3 of the notice of motion.

13. I need not deal with the submissions considering conditions if a stay were granted.

14. Further submissions were made concerning the costs of this application.

15. The orders of the Court are:

1. Dismiss order 3 of the notice of motion filed 24 December 2015.

2. Order the first defendant pay the costs of the plaintiff and the respondents in respect of order 3 of that notice of motion.

3. Order that order (2) hereof is enforceable forthwith by the respondents but not the plaintiff, but stay that order until the conclusion of 26 February 2016 or, if a notice seeking leave to appeal listing the respondents as parties is filed by that date, the conclusion of the leave to appeal proceedings (and any related appeal) involving the respondents.

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Endnote