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[1991] NSWCA 19
Court of Appeal (NSW)
1991-02-21
Mahoney JA
Original judgment source is linked above.
SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY JA 21 February 1991
Mahoney JA This is an application for a stay of execution upon a judgment given by this Court on 19 February 1991. The proceedings relate to an accident which occurred on 16 February 1986 in a cruise ship. It is not necessary to refer to the circumstances.
Proceedings were commenced, the Court is informed, in November 1987. There was a long trial in which the plaintiff succeeded and in this Court on 19 February 1991 the Court was divided as to the plaintiffs right to retain the verdict.
There are issues of substance involved relating, amongst other things, to the significance of clauses in contracts involving the disclaimer or limitation of liability and the operation, inter alia, of the Contracts Review Act 1980 and the Trade Practices Act 1974. In respect of each of these matters this Court delivered long judgments. These are, I think, matters of substance.
The unsuccessful claimant, the Baltic Shipping Company, desires to seek leave to appeal to the High Court of Australia. It is not suggested that the appeal is not a bona fide appeal or, I think, that there are not matters of substance, although it has been suggested that the issues relate essentially to facts. If that be so, then no doubt the High Court may be disposed to refuse leave to appeal. If it thinks that there are issues of substance involved which go beyond a mere question of fact, then the court may take a different attitude. That is a matter for that court to determine.
In these circumstances there would ordinarily be expected an order staying execution of the judgment until the application can be made to determine. I say "ordinarily". each case must be determined upon its own set of facts but in a case of a bona fide are appeal upon matters of substance the court's tendency is to grant an appropriate stay.
There is evidence that Mrs Dillon is not a person of large means. I do not think it is necessary to go into this aspect of the matter in detail. The amount involved in the verdict is of the order of $50,000. It is not suggested that she has a particular need for this sum of money. She is said to be a pensioner on a widow's pension. It is said she has her own home and could meet any order for return of moneys received by her out of the sale of her home. I do not think that that is a matter that ought to be contemplated as a source of money except as a last resort.
However that be, I think in the circumstances of this case it is appropriate that a stay be given. The stay will be given only upon the basis that the claimant desires to and will press an application for leave to appeal with all due diligence. I see no reason why, if that be done, an appropriate stay should not be given.
The order I make is order as in paragraph 1 of the notice of motion.
On the question of costs, what I have in mind is that if the claimant fails on the application for leave then it should bear the costs of this application and if the claimant gets leave and fails in the appeal it should pay the costs of this application but if the claimants succeeds on the appeal then it should have the costs of the application.
The order for costs that I make is in accordance with the intention that I have indicated.
BALTIC SHIPPING COMPANY
DILLON