CRAMPTON v NUGAWELA

Apparently following the giving of the jury's award and the entry by the judge of the judgment to which I have referred, an application was made to his Honour for a stay. His Honour in his judgment of 25 March 1996 granted a stay but subject to conditions which he detailed in the course of his judgment (I refer to pp 11 and 12 of the judgment of 25 March 1996).

Presumably as a condition of the stay, it was provided that the defendants Dr Crampton and the Royal Australian College of General Practitioners should pay to the plaintiff $400,000 on or before 23 April 1996 and that (in relation to costs) a stay be granted in respect of one third of the costs as agreed or otherwise assessed. These orders were made 'until further order of this Court or the Court of Appeal'. (I am summarising the essential parts of the judge's judgment insofar as they are now before the Court and relevant).

Application is now made by the defendants essentially for a variation of the terms of the stay. It has not been suggested that some form of stay should not be granted provided the conditions are appropriate; the essential contest has been as to the terms of the stay.

The main attack has been upon the order for payment of $400,000 by the defendants to the solicitors for the plaintiff. However, the attack has not been limited to that amount. The attack has also been directed, inter alia, to the provisions of cl 6 of the judge's conditions which indicate that the balance of the quantum of the verdict and costs should be paid into a trust account administered jointly by the solicitors to abide the outcome of the appeal.

It is accepted, at least it does not appear to be seriously contested, that the jurisdiction which I exercise is an original jurisdiction of the Court of Appeal. It is therefore not necessary for me to proceed upon the basis that I should not uphold this appeal or make some order unless I am satisfied that the judge below was wrong in principle or otherwise in error such as would upset a discretionary judgment. In the present case, I do not think that the principle is of particular import having regard to the views which I have formed on the merits. But I record my view that in this case I am exercising the jurisdiction of the Court of Appeal as an original jurisdiction.

I come to the substance of the matter. A notice of appeal has been filed against the judgment. The notice of appeal calls in question what I shall describe as issues of liability and issues of quantum. The appeal has been brought both upon the groundthat no verdict should have been given against the plaintiff and/or that a new trial should be ordered, and secondly upon the ground that the jury's verdict of $600,000 and the amounts added to it to constitute the judgment were excessive to the extent that an appellate court should interfere.

I am satisfied that upon each of these matters there is a substantial issue to be argued before the Appeal Court.

The parties have with care placed before me arguments both as to the issues of quantum and the issues of liability. It has been said or inferred that the prospect of appeal against the quantum of the jury's verdict of $600,000 are not great. Reference has been made to decisions which have been given by appellate courts in recent years as to the amount of damages to be awarded in defamation cases and as to when judgments will be set aside and new trials ordered. Reference has been made to Carson v John Fairfax & Sons Limited (1993) 178 CLR 44; (1991) 24 NSWLR 259, Australian Consolidated Press Ltd v Ettingshausen (Court of Appeal, 13 October 1993, unreported) and other cases detailed in the written and oral submissions.

I think it is sufficient for present purposes to indicate that I am of the opinion that there is a reasonably arguable case to go to the Court of Appeal in relation to the quantum of the verdict of the jury. I think it is fairly arguable that the amount awarded is on present principles excessive. I do not mean by this to say that I am of that opinion; I express no opinion upon the matter. But it is a matter which would be fairly open to the Court of Appeal.

Arguments have also been directed to the issues of liability. I do not think that it has been submitted, at least I would not accept, that there are not issues of substance to be argued before the Court of Appeal or that it is possible for the Court of Appeal to upset the judgment given against the defendants upon some of those matters. It is not necessary for me to detail these issues further. A conclusion generally to that effect is sufficient for an application such as the present.

The question that now arises is as to how the Court's jurisdiction should be exercised. It is wrong to attempt to lay down firm rules as to how this discretion is to be exercised in particular cases or to prescribe that reasoning must proceed, as it were, by step A (the general principle) to step B (as a qualification of that principle), to prescribe step C as an exception to that qualification and so on. In any application of the present kind, I think that in the end the overall impact of the evidence before the Court must be considered.

Having said this, it is proper to note that there has been articulated in earlier cases and reference has been made to this in cases before this Court to the principle that a successful plaintiff is prima facie entitled to receive the fruits of his or her verdict. That principle has not been entirely put aside although it has been significantly qualified and is now one of the matters, but only one of the matters, to be taken into account. But where a notice of appeal has been lodged such that issues are fairly to be raised before the appeal court on which the appellants might succeed, that is an important matter to be taken into account. The Court looks to the integrity of its appeal process and will not have that process defeated. That may occur in a case in which, and I do not think this is such a case, if the appeal is upheld the amounts paid to him cannot be recovered. Prima facie (I use that term in the sense to which I have referred) where there is

a bona fide appeal on foot, that fact is a matter of particular importance in determining whether a stay should be granted.

The third matter in the reconsideration of this matter is whether if payments were made to the plaintiff of the whole or the substantial part of the verdict, the amounts will be able to be recovered or whether the Court's appeal process will be defeated in the senses to which reference has been made. The present case has been left in a peculiar situation. I do not criticise the parties for this but it is proper to remark upon it. The parties have not sought to contend, at least there is no evidence to support the contention, that the defendants cannot pay the amounts in question. The individual defendant is a medical practitioner and it has not been suggested that hedoes not have the money to pay the whole of the amount ordered to be paid by his Honour or, as it may be, his relevant portion of it as between the two defendants. It has not been suggested that the Royal Australian College of General Practitioners cannot pay the whole or its share of that particular amount.

It has not been suggested, on the other hand, that if the amount of $400,000 be paid to the plaintiff, that amount could not be recovered from him should the appeal go against him. The matter has been left simply in the state where no evidence has been adduced upon these matters; there is nothing upon which the Court can form a firm opinion one way or the other.

In the circumstances of this case, I do not think that it is proper to set aside all of the conditions which were imposed by his Honour or to put the matter more accurately, to impose conditions quite different from those which his Honour imposed upon the stay. I think that the substance of the matter has been fairly dealt with by the terms of the judge's order. I do not see any reason why different orders should be made.

Having regard to the fact, as I shall assume, that there is nothing to suggest that the plaintiff cannot repay the amount of $400,000 or that there is any hardship upon the defendants in having to pay that amount or the other amounts both by way of judgment and costs which were ordered to be paid, I do not think that an order different from that made by the trial judge should be made.

I have in mind that if there is to be a retrial, it may be a retrial lasting as long or almost as long as the trial which took place in the present case. The present trial apparently extended over a period of some weeks; the trial judge adverted to this in the course of his judgment.

I record that the parties have placed before me the terms of the judgment of 25 March 1996 and the judge's assessment of the various issues there in question. I do not think that I should differ from him in relation to them. They do not determine what I have done but as the judgment has been placed before me I refer to hisassessment of the issues. His assessment of what took place at the trial is, if I may put the matter in very general terms, against the interest of the defendants.

However that be, I am of opinion that a stay should be granted but only on terms mutatis mutandis similar to those which are set forth in the judge's judgment and are summarised in par 9 of the affidavit of Mr Svilans of 29 March 1996. I propose to make an order accordingly.

As to the order for costs, I reserve those costs to be dealt with by the appeal judges at the end of the appeal. Is there anything in opposition to that?

SEXTON: No. We'd also ask if your Honour would deal with the motion for expedition.

The order for costs I make in relation to the application for stay, is that the costs of the application be reserved to the Court dealing with the appeal.

There is before me an application for expedition of the trial. The normal course to be taken in relation to expedition is, that these are dealt with in chambers by the judge dealing with expedition orders. Prima facie I do not think that it is appropriate that I deal with that application. I think that the judge dealing with the expedition orders will want to know the state of the list and will want to know a good deal more about the likely time that the appeal will occupy, the issues involved, when the parties will have the appeal papers ready and so on.

These are matters dealt with in chambers by the expedition judge and I think it is more appropriate that they are dealt with in that way. There is an expedition list of cases to be dealt with. The Court of Appeal now deals with appeals in various streams. We have a workers compensation stream, an ordinary damages stream and a stream dealing with cases which have been expedited. It is anticipated that there will be a period allocated by the Court to the hearing of an expedited appeal stream in the fairly near future. If you can arrange for this matter to be listed in that list then you may have a hearing in the not too distant future.

The arrangement of these matters is best left to that judge. Unless there is anything that you can really urge to the contrary I would propose to stand over the application for expedition to the judge in chambers upon the basis that the parties may, having regard to what I have said, place before him such other material as they may desire. Is there any reason why I shouldn't make that order?

HIS HONOUR: That is the order that I make in relation to the expedition matter.

SEXTON: There is just one other matter your Honour, which is that your Honour's orders in relation to the conditions of the stay would presumably operate as of now. There is an agreement between the parties if it could be noted that we would have eight days in relation to the payments that have been made since his Honour's original orders proposed dates but they have been overtaken by the hearing of the stay application.

HIS HONOUR: There's no problem about that is there?

HIS HONOUR: That can be noted on the transcript and be available if there is any contest about the matter.