Waverley Municipal Council v Swain

[2002] NSWCA 240

CITATION:	Waverley Municipal Council v Swain [2002] NSWCA 240
FILE NUMBER(S):	CA 40419/02
HEARING DATE(S):	22 July 2002
JUDGMENT DATE:	22 July 2002
PARTIES :	Waverley Municipal Council - Appellant Guy Edward Swain - Respondent
JUDGMENT OF:	Giles JA

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	SC 20261/00
LOWER COURT JUDICIAL OFFICER :	Ken Taylor AJ

COUNSEL:	D Davies SC - Appellant P Menzies QC - Respondent
SOLICITORS:	Phillips Fox - Appellant Beston Macken McManis - Respondent
CATCHWORDS:	Stay of proceedings on judgment - appeal not easy but not without prospects - plaintiff could not repay anything if money paid over - stay plus expedition granted. ND
DECISION:	I make orders 1, 2 and 3 in the notice of motion filed on 12 June 2002. I vacate the listing pursuant to the notice of appeal with appointment for 5 September 2002, and direct that the appeal be listed in the Registrar's callover on Monday 5 August.

CA 40419/02
SC 20261/00

GILES JA

Monday 22 July 2002

WAVERLEY MUNICIPAL COUNCIL v SWAIN

Judgment

1 HIS HONOUR: This is an application for a stay of proceedings on a judgment following a jury verdict on 13 May 2002. The verdict was in favour of the plaintiff, who was rendered an incomplete quadriplegic when he dived into surf at Bondi Beach and struck a sandbar. After an allowance for contributory negligence of twenty-five per cent, he obtained a judgment for $3,750,000. Quantum had been agreed, but liability was very much in issue.

2 In this application it is conceded that the plaintiff, as I will continue to call him, is indigent, and the evidence otherwise would satisfy me that, if he were to be paid any part of the judgment, it would be most unlikely that he could repay anything if the appeal were to succeed. It is plain enough also that if he were to be paid sufficient for the purpose under the judgment, he would have to pay money to the Health Insurance Commission and other entities entitled to reimbursement, and that there would be an effect on his present social security benefits.

3 The ground of appeal proposed is that the verdict was against the evidence and the weight of the evidence. It was acknowledged that the task facing the defendant in the appeal was not an easy one. It was submitted, and I do not understand it to have been in dispute, that the central issues at the trial were whether the plaintiff had been swimming between the flags at the time of his injury, and even if he was whether his evidence to the effect that swimming between the flags meant that the beach was safe extended to safety from an event such as befell him by reason of the sandbar. Although the appeal may not be an easy one, I do not think I should proceed on the basis that the defendant has no prospects on appeal.

4 If expedition were to be granted, and there is an application for expedition concurrently with the application for a stay, then the position between the plaintiff and the defendant can be expected to be known by appellate decision within four or five months. There was no evidence of particular hardship which will be worked upon the plaintiff in the event that he does not get the money to which he is prima facie entitled for another four or five months. He no doubt will continue, as he has been for some time since his accident, to be in receipt of social security benefits, and from the evidence before me it does not seem that the Health Insurance Commission and the other entities will insist on payment until the outcome of any appeal is known.

5 It seems to me that the correct balance between the interests of the parties is that the defendant should have a stay, so that in the event that the appeal succeeds it will not suffer what will be a fairly significant monetary prejudice in that it will not be able to get back a lot of the judgment which would be paid over: indeed, this situation is not one for payment of a part of the verdict. The preferable course, I think, is that the stay should be accompanied by expedition, so that the plaintiff knows as soon as may be (subject of course to any further appellate rights) what his entitlement is.

6 I make orders 1, 2 and 3, in the notice of motion filed on 12 June 2002. I vacate the listing pursuant to the notice of appeal with appointment for 5 September 2002, and direct that the appeal be listed in the Registrar’s callover on Monday 5 August.

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