WA Country Health Service v Wright

[2009] WASCA 177

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   WA COUNTRY HEALTH SERVICE -v- WRIGHT [2009] WASCA 177

CORAM:   NEWNES JA

HEARD:   9 OCTOBER 2009

DELIVERED          :   9 OCTOBER 2009

PUBLISHED           :  13 OCTOBER 2009

FILE NO/S:   CACV 43 of 2009

BETWEEN:   WA COUNTRY HEALTH SERVICE

Appellant

AND

WILLIAM WRIGHT
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :FENBURY DCJ

Citation  :WRIGHT -v- WA COUNTRY HEALTH SERVICE [2009] WADC 46

File No  :CIV 345 of 2006

Catchwords:

Practice and procedure - Application for stay of judgment pending determination of appeal - Respondent unlikely to be able to repay judgment sum - Turns on own facts

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 15(1)(b)

Result:

Order that judgment be stayed

Category:    B

Representation:

Counsel:

Appellant:     Mr D R Clyne

Respondent:     Mr J R Johnson

Solicitors:

Appellant:     Minter Ellison

Respondent:     Julian Johnson

Case(s) referred to in judgment(s):

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308

Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203

Lockhart Shire Council v King [2005] NSWCA 236

Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222

Smolarek v Brian Keith McMaster as Administrator of Eznut Pty Ltd [2006] WASCA 216

TCN Channel 9 Pty Ltd v Antoniadis [No 2] [1999] NSWCA 104; (1999) 48 NSWLR 381

Vosebe Pty Ltd t/as Batemans Bay Window and Glass v Bakavgas [2008] NSWCA 55

1. NEWNES JA:  On 9 October 2009, I granted a stay, pending the outcome of the appellant's appeal, of a judgment of Fenbury DCJ in which his Honour awarded the respondent damages of $37,500 and costs to be taxed.

2. In the action, the respondent alleged that the appellant was negligent in failing to diagnose and treat his condition of community acquired pneumonia following his attendance at the emergency department of the appellant's hospital.  The respondent said that he should not have been discharged from the hospital but instead admitted for observation when the pneumonia would have been diagnosed and treated with antibiotics, avoiding his later critical illness. 

3. The trial judge found that the appellant was negligent.  His Honour was not able to make a finding as to whether the respondent was suffering from community acquired pneumonia when he attended the hospital, but found that if the respondent had been kept in hospital longer and further investigations conducted, the cause of his symptoms would have been discovered and treated.  The failure to do so caused the respondent to suffer septic shock, requiring him to be transferred by the Royal Flying Doctor Service to Royal Perth Hospital for inpatient care in the Intensive Care Unit. 

4. In the event of a finding of liability, the quantum of damages had been agreed by the parties at $37,500 and the trial judge gave judgment in that amount plus costs to be taxed.

5. The appellant has appealed against the decision.  It says, in substance, that the trial judge erred in finding that it was negligent in circumstances where the respondent had failed to establish that he was suffering from community acquired pneumonia when he attended the hospital, and that the finding by the trial judge that had the respondent been kept in hospital longer the cause of his symptoms would have been discovered and treated, was speculative and contrary to the evidence.

6. The appellant seeks a stay of the judgment until the appeal is determined, on the basis that if it is successful on the appeal it is unlikely to be able to recover the judgment sum from the respondent.

7. Section 15(1)(b) of the Civil Judgments Enforcement Act 2004 (WA) provides, relevantly, that a person against whom a judgment is given may apply to the court that is dealing with an appeal against the judgment for an order suspending the enforcement of all or part of the judgment. By s 15(3), on such an application the court may only make such an order if there are 'special circumstances' that justify doing so. The onus of showing special circumstances lies on the applicant.

8. The principles which govern the exercise of the discretion under s 15 are not materially different from those which applied to an application for a stay of execution before the introduction of the Act.  See Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203 [3]; Smolarek v Brian Keith McMaster as Administrator of Eznut Pty Ltd [2006] WASCA 216 [33].

9. The nature of the criteria which are relevant to the exercise of this court's discretion to grant a stay of execution, pending an appeal, are well‑established.  The principles which are generally applied on such an application were summarised by Murray and Parker JJ in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9].

10. It is unnecessary to canvass those principles in any detail.  Relevantly for present purposes, a stay of execution pending an appeal may be granted if the appellant appears to have reasonable prospects of success on the appeal and there is a real risk that, if a stay is not granted and the judgment debt is paid, the respondent will be unable to repay the money if the appeal is allowed.  See TCN Channel 9 Pty Ltd v Antoniadis [No 2] [1999] NSWCA 104; (1999) 48 NSWLR 381; Lockhart Shire Council v King [2005] NSWCA 236 [2]; Vosebe Pty Ltd t/as Batemans Bay Window and Glass v Bakavgas [2008] NSWCA 55 [21] ‑ [26]; Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222.

11. In the present case, the respondent does not put in issue, for the purposes of this application, that the appellant has reasonable prospects of success on the appeal and I am satisfied that it does.  The respondent contends, however, that the application should be refused because, first, it has not been shown that there is a real risk the respondent will be unable to repay the money and, secondly, a stay would impose unreasonable hardship on the respondent.

12. The circumstances of the respondent are set out in his affidavit in opposition to the application.  The respondent is 61 years of age and in receipt of a disability pension in an amount, currently, of $310 per fortnight.  He and his wife live in rental accommodation for which they pay $100 per week.  The respondent does not own any land or other assets of significant value.  Apart from some modest household items which 'may be worth a few hundred dollars', he owns a Ford Falcon station wagon which is approximately 10 years old and which he describes as being in poor mechanical condition.  The respondent estimates its value at 'a few hundred dollars'.

13. The respondent says that his wife suffers from poorly controlled diabetes and severe kidney disease for which she undergoes dialysis three times a week in Derby, more than 100 kilometres by road from the isolated community where they live.  Some 38 kilometres of that consists of unsealed roads.  The respondent drives his wife to her medical appointments, including dialysis.  He says that he wishes to use some of the judgment sum to purchase a more reliable vehicle for that purpose.  The respondent estimates that the cost of an appropriate vehicle is likely to be in excess of $20,000.  The respondent also wishes to employ some domestic assistance, in light of his own and his wife's ill‑health.  He says that in addition he has significant debts relating to the action, including expert witness fees of $5,280 and various other fees in the order of $1,000.

14. It was submitted on behalf of the respondent that if the appellant is successful on the appeal it would be able to recover the money paid to the respondent by the sale of the motor vehicle the respondent intends to buy and, as to the balance, to the extent necessary by instalments under the Civil Judgments Enforcement Act, possibly after a means inquiry.  At best the appellant may be put to some inconvenience and there may be some risk that recovery may not be complete.  But there was nothing 'special' about the present circumstances - there are many litigants who do not have significant assets.

15. Counsel for the respondent argued that the balance of convenience favoured the respondent.  It is now some five years since the injury occurred and the respondent continues to live in modest circumstances, when the judgment sum would make a substantial difference to his life and enable him to take better care of his sick wife.  The fact that he lives in modest circumstances should not mean that he has to wait a further year or more until the appeal is resolved.

16. Counsel for the respondent submitted that at least an amount of $25,000 should be paid to the respondent from the judgment sum to enable him to purchase another vehicle.

17. I consider that a stay should be granted pending the outcome of the appeal.  The respondent has no assets of any significance and it is evident from what he has said that it is his intention to disburse most of the judgment sum.  More than $6,000 is to be paid to discharge debts from the action and a further amount, suggested on the hearing of this application to be some $25,000, spent on a motor vehicle.  He also intends to employ some domestic help.  The net amount recoverable on a subsequent sale of the motor vehicle (particularly bearing in mind the possible costs involved) is likely to be significantly less than the purchase price.  In light of the respondent's modest income, he has very little, if any, capacity to repay the balance - and certainly no capacity to repay it within a reasonable time -  even if the amount paid to him were limited to $25,000.

18. It is also relevant that the respondent appears to be under the impression that the resolution of the appeal will take a further 12 months or more.  There is no reason that it should.  The appeal is relatively well advanced.  The appellant's case, the respondent's answer and a notice of contention, and the appellant's answer to the notice of contention have all been filed.  The index to the appeal books is to be settled on 21 October 2009.  As matters stand, there is no reason why the appeal could not be heard by early 2010.  It is, of course, incumbent upon the appellant to pursue the appeal with proper expedition.  There is no suggestion that it has not done so to date.

19. It was for those reasons that I ordered that payment of the judgment sum and costs under the judgment be stayed pending the outcome of the appeal.  There is liberty to apply, should circumstances change.