Berry v Green [1999] QCA 213

Court of Appeal (Qld)|1999-06-07|Before: Jersey CJ, Murdo P, Demack J

THE CHIEF JUSTICE: This is an application for the stay of a judgment given in the District Court for damages for professional negligence against a solicitor. The solicitor's concern is that if the amount of the judgment is paid to the successful plaintiff, it will be irrecoverable in the event of success of the appeal.

We have been given figures which would suggest, for example, that had there been in the District Court a discounting of the prospects of success in the original action had it been brought by, say, 50 per cent, the amount of the judgment in favour of the successful plaintiff would have been nothing or virtually nothing. There is debate about that, but it is sufficient for the moment to accept that that is an arguable position.

The plaintiff has some pressing financial commitments. They include the costs of responding to the appeal, which on his solicitor's account would approximate $20,000. There are in addition some $25,000 of commitments to a financier, apart from $15,000 said to be due to his son, although there is no suggestion that the son is pressing for payment.

So on one view the Court could stay execution on the judgment were approximately $45,000 paid over at this stage. I have so approached the matter from the fundamental principle that a successful plaintiff is prima facie entitled to the fruits of his or her judgment, and that we must strive to avoid crafting a position in the Court of Appeal whereby judgments in the trial division, whether this Court or the District Court, are seen to be provisional only pending the result of an appeal.

The relevant approach as described by recent decisions of this Court is simply whether it is appropriate to grant a stay pending appeal. There has been departure from the previous position which expressly required the demonstration of special or exceptional circumstances. Of course it might be said the prescription of "appropriateness" as the test is rather unhelpful. But it is plain that there must be some particular feature about the case which warrants departure from what I have referred to as the fundamental or prima facie position.

Mr Williams QC, who appears for the respondent, rightly points out that the position of this plaintiff would be little different, in broad terms anyway, from the position of most plaintiffs in claims for damages for personal injury, in that rarely would those persons have substantial financial resources; many of them would be dependent upon the payment of pensions and other Social Security benefits.

In the end, assessing the factors in this case, I identify no feature sufficient to warrant the conclusion that it is an appropriate case for a stay pending appeal. I would therefore refuse the application.

THE PRESIDENT: I agree that the application should be refused for the reasons given by the Chief Justice.

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