Thompson v Robinson

[2005] QDC 186

DISTRICT COURT OF QUEENSLAND

CITATION:	Thompson v Robinson [2005] QDC 186
PARTIES:	COLIN JAMES THOMPSON

Plaintiff

v

ROBERT RAYMOND LLOYD ROBINSON

Defendant

FILE NO/S: 

BD3122/2002

DIVISION: 

Civil

PROCEEDING: 

Application by plaintiff for security for costs.
Application by defendant for stay of judgment.

ORIGINATING 
COURT: 

District Court, Brisbane

DELIVERED ON: 

DELIVERED AT: 

Brisbane

HEARING DATE: 

31 March 2005

JUDGE: 

Nase DCJ

ORDER: 

On the application for security for costs (r 772 UCPR):

1.	That Robert Raymond Lloyd Robinson give security for costs of the appeal fixed at $15,000 within two months from today.
2.	Security may be given by payment into court of $15,000 or in any other way approved by the registrar.
3.	Both parties have liberty to apply on reasonable notice.

4. The costs of this application are costs in the appeal.
On the application for a stay (r 761, 862 UCPR):

1.	That enforcement of part of the decision under appeal be stayed by direction that one-half of such of the money order as is recovered under an enforcement warrant issued on 16 March 2005 be paid into the trust account of Georgeson & Company to be held pending the determination of the appeal.
2.	If the appeal is not determined after a period of six months from today this order is automatically lifted.
3.	That Georgeson & Company be authorised to pay the

said moneys into any interest bearing deposit with the by the parties.

4.   That interest of nine percent per annum continue to accrue on that part of the judgment moneys directed by these orders to be retained pending the determination of the appeal or until six months have passed from today.

5.   Both parties have liberty to apply on reasonable notice.

6.   That the costs of this application be costs in the appeal.

CATCHWORDS:

COUNSEL:	D C Spence for the plaintiff G D O’Sullivan for the defendant
SOLICITORS:	Frank Jongkind & Co solicitors for the plaintiff Georgeson & Company solicitors for the defendant.

1. These are two applications which for convenience were heard together. The first is an application by an appellant/defendant (“Robinson”) for a stay of a judgment under appeal; the second is an application by the respondent/plaintiff (“Thompson”) for security for the costs of the appeal.

2. After a 12 day trial for defamation in the District Court before Botting DCJ and a jury, judgment was given on 7 December 2004 against Robinson for $72,000 together with interest. Robinson was additionally ordered to pay Thompson’s costs.

3. An appeal from these orders was filed on 4 January 2005, the grounds of appeal being drawn by trial counsel for Robinson (“Ms Spence”).

4. Since judgment Thompson has taken steps to recover the judgment in his favour. On 16 March 2005 Robinson was examined in an enforcement hearing by a deputy registrar.[1] On the same date an enforcement warrant for redirection of earnings was issued by a deputy registrar of the court.2

   [1] UCPR r 800.

5. Robinson is a commissioner of ATSIC. ATSIC is currently being wound up by the Federal Government. As a result Robinson’s employment has come to an end. He currently has an entitlement to approximately $105,000 (half to tax) representing accrued leave entitlements, long service leave, and a payment in lieu of notice.3 His other assets appear to be a home at Charleville, which is subject to a mortgage of $227,000 and an unsecured overdraft of $33,000,4 and a boat and trailer5 estimated by Robinson to be worth $15,000. He has a MasterCard debt of $9,500.6

6. The claimed value of the house property disclosed in the incomplete form 71 is $200,000. At the hearing I was told Robinson has no or little equity in the property. The enforcement warrant is for approximately $74,000. As it has already been served on the employer the $105,000 reduces to approximately $24,000. The enforcement warrant is only for the judgment sum and interest to date. The costs of the action have not been assessed but were said to be likely to be between $40,000 and $50,000.

7. In Robinson’s affidavit filed in support of the stay, after setting out his debts he deposes in para 6 that: “There is nothing for me to live on.” I have assumed he is saying that there is nothing for him to live on if deprived by execution of the judgment of his back pay and other entitlements. In his affidavit dated 31 March 2005 he deposes that that his employment history is such that, should his appeal be dismissed, he will be in a position to pay the costs of both the action and the appeal. By implication he has no funds or assets to meet a costs order if his appeal is unsuccessful. I am satisfied on the evidence that he has no funds or assets available to satisfy a costs order on appeal.

8. In the result however it is unnecessary to discuss this aspect in any greater detail. Neither party wishes to argue against a proposal fixing $15,000 as an appropriate amount for security, but postponing the obligation to lodge the security for two months. In the particular circumstances of this case the provision of security provides protection for Thompson, while the deferment of the time for lodgement by two months meets some of Robinson’s concerns.[7] Such an order I believe strikes a reasonable balance for this case.

[9]     The main argument advanced by Ms Spence on the stay application is an apprehension on Robinson’s part that Thompson will dissipate the judgment moneys once they are paid over to him. Robinson deposed to such a belief in his affidavit. Consistently with this argument Ms Spence asked the court to vary the terms of the enforcement warrant by adding a requirement that any moneys received under the warrant be paid into court. This, it is argued, would both secure the judgment funds for Thompson, but prevent their dissipation by him.

[7]            One factor that in this case may be relevant is the undesirability of stifling an appeal which may have merit by an unnecessarily harsh security order. On the material placed before me it is not possible to reach any view as to the real merit of the appeal.

1. Thompson was represented both at trial and before me by Mr G O’Sullivan. Mr O’Sullivan’s response is that no adequate evidentiary basis exists for a conclusion that Thompson will dissipate the judgment moneys, and, in the event of a successful appeal, be unable to return the judgment moneys to Robinson. Certainly it is correct to say that no satisfactory evidentiary basis, beyond Robinson’s personal apprehension, exists in the material to support a conclusion Thompson would be unable to repay the judgment amount in the event of a successful appeal. On the other hand Robinson may lack access to the means of knowledge to support his claimed apprehension.

2. On a stay application the applicant carries the onus of persuading the court the case is an appropriate one in which to grant a stay.[8] In the circumstances Mr O’Sullivan argues the applicant has not demonstrated a sufficient factual basis for a stay order.

   [8]            Williams v Chesterman & Anor (CA 74/1992, unreported); Croney v Nand [1999] 2 Qd R 343.

3. Consistently with the view the onus of persuasion rests with the applicant for any order Mr O’Sullivan did not make any attempt to place any details concerning Thompson’s capacity to return the judgment moneys in the event of a successful appeal. The only detail known about Thompson is that he is not employed by the Ipswich Legal Aid Service. He apparently had been employed by that service in the recent past. As the onus to make out an appropriate case rests on Robinson, there is no obligation on Thompson to disclose his financial position on the stay application.

4. A court in determining a stay application has a discretion whether or not to grant the stay, and, if a stay is granted the terms that would be fair to both parties.[9] The Court of Appeal in New South Wales in Alexander v Cambridge Credit Corp Ltd discussed the considerations that may be important in determining a stay application.

   [9]            Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 at 694.

5. In this case the concerns relate to the financial standing of Robinson and his ability and will to prosecute the appeal in timely fashion, and the alleged prospect Thompson will be unable to refund the judgment amount in the event of a successful appeal. As far as the appeal is concerned it is not possible for me to reach any view as to its real merits. I note also that Robinson is now required to lodge security of $15,000 within two months. This requirement offers some additional protection for Thompson. Doing my best to recognise the legitimate interests of both parties I propose to direct that the judgment be stayed to the extent of requiring Thompson pay one-half of the funds gathered under the enforcement warrant of 16 March 2005 into his solicitors’ trust account. Thompson will be entitled to the benefit of his successful defamation action to the extent allowed, that is, to one-half of the judgment sum obtained under the enforcement warrant. The partial stay however will only remain in force for six months. After that time the funds held in his solicitors’ trust account may be released to him. Such an order is I believe a reasonable compromise which recognises Thompson’s prima facie entitlement to the judgment moneys.

6. In the circumstances the following order are made:

   On the application for security for costs (r 772 UCPR)

1.	That the appellant Robert Raymond Lloyd Robinson give security for costs of the appeal fixed at $15,000 within two months from today.
2.	Security may be given by payment into court of $15,000 or in any other way approved by the registrar.
3.	Both parties have liberty to apply for any variation on reasonable notice.
4.	The costs of this application are costs in the appeal.

On the application for a stay (r 761, 862 UCPR)

1.	That enforcement of part of the decision under appeal be stayed by direction that one-half of such of the money order as is recovered under an enforcement warrant issued on 16 March 2005 be paid into the trust account of Georgeson & Company to be held pending the determination of the appeal.
2.	If the appeal is not determined after a period of six months from today this order is automatically lifted.
3.	That Georgeson & Company be authorised to pay the said moneys into any interest bearing deposit with the Commonwealth Bank or other institution approved by the parties.
4.	That interest of nine percent per annum continue to be paid on that part of the judgment moneys directed by the orders to be retained in Georgeson & Company’s trust account on behalf of Thompson until six months have passed from today or the appeal has been determined.
5.	Both parties have liberty to apply for any variation on reasonable notice.
6.	That the costs of this application be costs in the appeal.