The State of South Australia v Crossley

[2020] SASC 198

Supreme Court of South Australia

(Civil: Application)

THE STATE OF SOUTH AUSTRALIA v CROSSLEY

[2020] SASC 198

Ruling of The Honourable Justice Livesey (ex tempore)

2 October 2020

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - STAY OF PROCEEDINGS

The applicant sought a stay of execution in respect of a sum due to the respondent under a judgment of the District Court.  The respondent opposed the stay of execution but was willing to accept part payment of the judgment sum in order to purchase a property.  The parties reached an agreement as to the terms of a draft order.

Held:

1.  By consent, the application for a stay of execution is dismissed;

2.  The applicant must pay into the Suitors’ Fund of the Supreme Court the judgment sum, being $854,313.91, together with any post-judgment interest that may have accrued, less any amount payable to the Commonwealth or Medicare; and

3.  The applicant is to repay Centrelink and Medicare in accordance with any notices of charge issued by those parties but, should the applicant be successful on appeal, Centrelink and Medicare will reimburse the applicant.

Enforcement of Judgments Act 1991 (SA), s 17; Uniform Civil Rules 2020 (SA) r 3.1, r 215.4, r 218.7, referred to.
Dowdens v Owen (No 2) [2018] SASC 23; Fox v Percy [2003] 214 CLR 118; Hackney Tavern Nominees Pty Ltd v McLeod (1983) 33 SASR 590; Playford Vineyard v Wishford Nominees (No 2) [2018] SASC 152, considered.

THE STATE OF SOUTH AUSTRALIA v CROSSLEY
[2020] SASC 198

CIVIL:     Application

1. LIVESEY J:        On 25 August 2020 Blue J ordered an interim stay of execution of the judgment sum due to the respondent who was the plaintiff in proceedings tried before Judge Tilmouth in the District Court. 

2. No order was made staying or suspending the imposition of post-judgment interest which, on the face of it, continues to accrue in accordance with the rules of court.[1]

   [1]    Doedens v Owen (No 2) [2018] SASC 23, [71] (Nicholson J).

3. The parties appear to have earlier agreed the interim stay until 2 October because it was anticipated that some time would be required for Centrelink to process its clearance, without which the applicant could not make payment of any of the judgment sum to the respondent.  Earlier today it became clear that Centrelink was not processing the clearance because of the existence of the interim stay.  It may be that, even after the stay goes, Centrelink will still require some weeks in order to process the clearance.

4. The appeal in this matter has been listed for hearing as to liability only before the Full Court on 5 November 2020.  Whilst there does not appear to be any appeal in relation to damages I was told that, depending upon the decision made by the Full Court, certain aspects of the damages award will necessarily be addressed as well.

5. I have seen amended grounds of appeal as well as a written outline from the applicant.  Whilst the respondent concedes that the appeal is reasonably arguable, he maintains that the applicant faces a difficult task in overturning various factual findings made by the trial judge and reliance is placed upon Fox v Percy.[2]

   [2]    Fox v Percy (2003) 214 CLR 118.

6. In support of the stay the applicant relies upon Playford Vineyard v Wishford[3] where Stanley J set out, amongst others, the proposition that the question of a stay turns, at least in part, on the balance of convenience.  However, what is clear from that decision, as well as other decisions such as Hackney Tavern Nominees v McLeod,[4] is that a successful litigant is ordinarily entitled to the benefit of the judgment unless and until that judgment is set aside or varied on appeal. Moreover, it is necessary for the party seeking a stay to demonstrate a proper basis for the favourable exercise of the discretion to grant a stay, whether that application is made under s 17 of the Enforcement of Judgments Act 1991 (SA) or rule 215.4 of the Uniform Civil Rules 2020 (SA).

   [3]    Playford Vineyard v WishfordNominees (No 2) [2018] SASC 152, [18]-[25] (Stanley J).

   [4]    Hackney Tavern Nominees v McLeod (1983) 33 SASR 590 (White J).

7. Regrettably, before the hearing earlier today neither side had given careful thought to how best to balance their competing objectives.  The applicant simply pressed for a stay pending the disposition of the Full Court appeal.  For his part, the respondent was prepared to take some but not all of the judgment sum because he has it in mind to acquire a property.  However, I have no evidence at all about that and no information about the value of any proposed property, nor the risk that investment in it might entail.

8. Absent agreement between the parties, I am not prepared to order a stay.  Nonetheless, I am prepared to order that the judgment sum, together with whatever post‑judgment interest may have accrued, be paid into the Suitors’ Fund where it will incur interest pending the further order of this Court. 

9. Ordinarily, the Court will expect the parties to address issues such as these in a cooperative manner, each recognising the interests of the other and determined to constructively resolve the potential for dispute between them.  I refer, amongst others, to rule 3.1(1)(g) of the Uniform Civil Rules 2020 (SA).

10. I am pleased to say that, given an opportunity earlier today, the parties have this afternoon managed to agree the terms of a draft order. 

11. Accordingly, and by consent, it is ordered that:

    1The application for a stay by application dated 14 August 2020 is dismissed.

    2Within 14 days of receipt of a compensation recovery notice issued by Centrelink and a notice of charge from Medicare (whichever is the latest), the applicant shall pay the judgment sum of $854,313.91 into the Suitors’ Fund of the Supreme Court, together with any post-judgment interest that may have accrued, less any amount payable to the Commonwealth or to Medicare pursuant to the notices, which sum is to be held pending the determination of the appeal to the Full Court.

    3The time for the respondent to file and serve written submissions and a list of authorities is extended to 5 pm on Tuesday, 20 October 2020.

    4The time for the applicant to file any written submissions in reply, any revised list of authorities and an exhibit appeal book is extended to 5 pm on Friday, 30 October 2020.

    5The requirement to file a chronology pursuant to rule 218.7 of the Uniform Civil Rules 2020 (SA) is dispensed with.

    6The question of the costs of the application and the hearing today are referred to the Full Court.

12. It is noted that, on being liable to pay the award of damages in this matter, the State is also required to repay statutory charges issued by Centrelink and Medicare.  Centrelink and Medicare will be paid directly by the State in accordance with any notices of charge issued by those parties.  Should the appeal be determined in favour of the State, refunds of statutory charges paid to Centrelink and Medicare are to be reimbursed by those parties to the State.