[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
EX TEMPORE Judgment
On 18 May 2015 her Honour Judge Norton SC entered a verdict and judgment in favour of the respondent, the plaintiff in the Court below, in the sum of $236,031.04 plus costs.
On 3 June 2015 the applicant filed a Notice of Intention to Appeal and a Notice of Appeal was filed on 7 August 2015. The case involved a dispute between neighbours who apparently had been feuding for approximately a decade. At the time of the events in question which occurred in January 2012 the applicant was a gentleman of 77 years of age and the respondent was a gentleman of 55 years of age.
The dispute on the occasion in question arose over a hedge that divided the two properties in which the parties lived. At the time the applicant had a set of shears that he was using to trim his hedge. The respondent alleged that he was injured by the applicant who came towards him with the shears and which resulted in him sustaining some injuries from the blades of the shears.
The applicant's defence was that he was in fact assaulted by the respondent and that he held up the shears in self-defence and it was a consequence of that that the respondent was injured.
The trial judge had the benefit of not only the evidence of the applicant and the respondent but also of their respective wives. However, her Honour found that the evidence of the applicant's wife was of no assistance but she accepted the evidence of the respondent's wife which in some respects corroborated his version of events.
Her Honour made findings relating to the parties' credit. As I have said she accepted the evidence of the respondent's wife but she was not that impressed with the evidence of either the applicant or the respondent, although at the end of the day she accepted the version of events that the respondent asserted.
As I have indicated the primary defence of the applicant was that he was merely acting in self-defence when the respondent crossed the boundary onto the applicant's property and assaulted him. Her Honour did not accept that evidence and, as I have indicated, accepted the version of events of the respondent.
On the first or second day of the trial the applicant sought to tender tendency evidence in respect of which a notice of intention to adduce such evidence was given pursuant to s 97 of the Evidence Act 1995. The trial commenced on 24 February 2015 and two notices were given, the first of which was given on 18 February and which asserted that the relevant conduct that would be the subject of the adducing of tendency evidence related to the respondent being charged with common assault in December 2007.
On the day the trial commenced, 24 February 2015, a much more extensive notice of intention to adduce tendency evidence was sought to be tendered. If one took them at face value it related to events involving conduct on the part of the respondent generally of a violent nature which occurred on four occasions in April 2000, May 2005, June 2005 and December 2007. There was no suggestion of any tendency evidence sought to be tendered between December 2007 and January 2012 when the events in question took place. However, it was common ground apparently that at some point in respect of which the parties were unable to give me any further details, the respondent underwent anger management counselling.
As I have indicated it appears also to be common ground that these two gentlemen had been feuding for years and had been at least verbally assaulting each other from time to time. Accordingly, relations between the two were reasonably toxic. It was in that context no doubt that it was sought to adduce the tendency evidence.
On 26 February 2015 at the end of evidence being given on the voir dire with respect to the tendency evidence and the applicant's solicitor being cross‑examined on it, her Honour ruled at p 219 of the transcript that she did not think the evidence would be admissible as tendency evidence and she did not think that even 5 days' notice was reasonable. Her Honour then indicated that she could at that point provide some reasons for her ruling but she did not wish to hold up the trial. She appeared to indicate that she would deal with the matter in more detail when she gave her final judgment.
On 3 March 2015 at p 263 of the transcript, at a time when the respondent's wife was apparently under cross-examination in relation to evidence on the voir dire concerning the proposed tendency evidence, her Honour indicated that unless the matter relating to that issue was going to finish that day it would be very difficult for her to rule on the application. The impression one gets from that statement is that at that point her Honour had not made up her mind on the issue. Nevertheless, in the next sentence she said, "The tendency evidence is out. It's not coming back in just because this matter goes over". She then said:
"There were two bases in my decision which is typed - well, would have been typed but they've taken our computers away - there are two bases: The lack of notice and the fact, in my opinion, the matters relied upon don't show any particular habit on behalf of the plaintiff in attacking people and trying to push and punch them, so it's not tendency evidence. It's not going in."
In her final judgment her Honour did not deal with the tendency evidence issue at all. A number of complaints are made in the Notice of Appeal of which two are first, that her Honour was in error in rejecting the tendency evidence and, secondly, that she had failed to give adequate reasons for rejecting it.
The present application seeks a stay of the judgment pending the appeal. Each of the parties has put on evidence as to their assets and liabilities, the applicant in order to indicate that he is sufficiently financial to meet the judgment in the event that his appeal fails, and the respondent to indicate that he is sufficiently financial to repay the judgment debt in the event that a stay is refused and the judgment is paid. Furthermore, the applicant has indicated that he will give an undertaking to the Court not to sell or otherwise encumber his home at Panania, which he asserts is worth approximately $850,000 and which he owns jointly with his wife. His wife is unable to give a similar undertaking today because she is ill, but I have been informed by the applicant's counsel that she will be prepared to give such an undertaking and would do so in writing as soon as she is able.
Of greater significance is the fact that the applicant owns in his own name shares in a number of companies on the Australian Stock Exchange, many of which are blue chip companies which have a value as at June of this year of $420,797.08 if they were then liquidated. Although there has been a downward movement of the value of shares on the stock exchange since June, I do not believe it is such as would reduce the amount referred to in the valuation of the applicant's shares to any significant extent and certainly not to the point where he would have insufficient value in his shares to meet the verdict if and when it is required to be paid.
The principles relevant to the granting of a stay application are well known. They were recently considered by Gleeson JA in Lawrence v Gunner [2015] NSWCA 322 [10]-[13], and by Ward JA in Bobolas v Waverley Council [2014] NSWCA 78 [60]-[61]. Suffice it to say, a successful party is prima facie entitled to the fruits of his or her victory, but that a stay may be granted where an applicant demonstrates an appropriate case to warrant the exercise of the court's discretion in his or her favour. Generally speaking, an applicant is required to demonstrate a reason or an appropriate case to warrant the exercise of the discretion in his or her favour, and the onus is on the applicant to so demonstrate that it will be fair to all parties that the discretion be so exercised.
Although, of course, in approaching applications for a stay one will not generally speculate about the applicant's prospect of success, it is still necessary to make a preliminary assessment as to whether the applicant has an arguable case when considering whether the specific terms of the stay will be appropriate to fairly adjust the interest of the parties. A further requirement is to determine where the balance of convenience lies. In that respect, it is now nearly the commencement of November and I have indicated to the parties that with the concurrence of the Registrar, the appeal in this matter can be heard in February and I would in any event, irrespective of the outcome of this application, expedite the hearing of the appeal and direct the parties to approach the Registrar for the purpose of obtaining a date early in the new year.
The critical issue on this application it seems to me relates to the tendency evidence. Because the adducing of that evidence in my view appears to be essential to the defence of the applicant that he was attacked by the respondent rather than the other way around, if that evidence is admitted as being of sufficient probative value then it may go a fair way to support the applicant's case of self-defence.
It seems to me that there is, at least, an arguable case that the primary judge failed to give proper reasons for the rejection of the adducing of the tendency evidence the subject of the notices. She simply stated that five days was insufficient and that in any event the evidence did not have sufficient probative value. They are the two matters that are required to be dealt with under s 97 of the Evidence Act where an application is made to adduce tendency evidence. But to simply state those two factors, without elaborating at least to a degree as to her reasons, in all the circumstances in my view give rise to an issue as to whether her reasons were adequate. In this respect it should be noted, as I understand it, that all the police documents relating to the four incidents the subject of the tendency evidence notice had been subpoenaed and were available to the parties and had been tendered on the voir dire application.
There are two aspects of her Honour's decision relating to the rejection of the tendency evidence that are of some concern in terms of this application. The first is that the detailed notice was only provided to the respondent's representatives on the commencement of the day of the hearing. Nevertheless as I have indicated all the police documents were apparently available and I was not referred to any part of the transcript before her Honour which would indicate that the respondent's counsel was unable to deal on the voir dire with the issues raised by that notice, notwithstanding that it was late.
In this respect s 97 of the Evidence Act only requires that there be reasonable notice and not notice given any particular number of days before the commencement of the hearing. What is reasonable in any particular case may well depend on the circumstances under which the notice was given, and the material available to the party against whom it is proposed to adduce the evidence as to whether they are prejudiced or not.
In this respect, however, it should be noted that her Honour did contemplate that if the respondent was prejudiced by the late notice then she would grant an adjournment at the cost of the applicant. But although I stand to be corrected, I do not think that where she indicated that she would do that, there was any statement made by the respondent's legal representative that they would in fact be prejudiced and would be seeking such an adjournment.
The other aspect that the evidence to be adduced must have significant probative value. In this respect the case for the respondent was that the last of the four events, the subject of the notice, occurred some five years before the incident in question. However, over that five year period the evidence appears to indicate that the parties were feuding and that, as I have said, the relationship between them was anything but benevolent.
Furthermore, there was the question of the respondent undertaking anger management counselling which seems to indicate that he did have a problem in that particular area. In all the circumstances it seems to me that the applicant does have an arguable case, and I do not put it any higher than that, that the tendency evidence was wrongly rejected.
So far as the balance of convenience is concerned, the respondent has been out of his money now since 18 July but has made no attempt to enforce the judgment until now when a notice of motion was filed earlier this month seeking a stay. It appears to me that, subject to the giving of the relevant undertakings to which I have referred, there can be no question that in the event that the appeal fails the respondent will not be prejudiced in terms of the ability of the applicant to pay the amount of the judgment. Equally, I take into account that in the event that the judgment is paid and this application is refused that it is likely that the respondent would be able to repay the money.
Nevertheless although the respondent is the owner of his own home jointly with his wife, which he asserts is worth between $900,000 and $950,000, and owns a half share in another property worth $650,000, he runs a freight transportation business, which he has for some years, but which apparently is not overly profitable given the amount that he receives as salary from the running of that business. He states that his total assets amount to approximately $1.3 million and total debts of $140,000. However I would not conclude that in the event that the judgment debt was paid and this application was refused that the respondent would not be in a position to repay the amount of the judgment if the appeal succeeds.
Taking all the foregoing matters into consideration and given that this matter can be disposed of by a hearing next February, which is only a few months away, in my view the balance of convenience is tipped in favour of the granting of this application. Accordingly, I would propose to order that the judgment of Norton DCJ of 18 May 2015 be stayed pending the hearing and determination of the appeal on condition that the applicant, by his counsel, gives the undertakings to the Court referred to in paragraphs 14 and 15 of his affidavit sworn 30 September 2015 that that undertaking be extended to the shares referred to in a letter from Compin Pty Limited to the applicant dated 25 June 2015, and that the applicant's wife enter into an undertaking in relation to the house in which they live in the same terms as that set out in paragraph 14 of the applicant's affidavit to which I have referred.
So far as the costs of this application are concerned, the applicant is seeking an indulgence of the court and in those circumstances, although I propose to order a stay, in my view the appropriate course is that the costs of the Application for a Stay be costs in the appeal.
As I have indicated, I order that the hearing of the appeal be expedited and that the parties have leave to approach the Registrar forthwith for the purpose of obtaining a date early in the New Year for the hearing of the appeal.
The only order I propose to make at the moment is that I direct the applicant to bring in short minutes of order containing the necessary undertakings which would need to be signed by not only counsel but also by the applicant's wife as she is not a party to the proceedings.
[3]
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Decision last updated: 26 November 2015