_Drew v Makita

Judgment (26 paragraphs)

[1]

KEANE JA: On the 29th August 2008, judgment was given for the plaintiff for $194,454.86 plus costs in his action for damages for personal injury against the defendant. The plaintiff claimed that his injuries were caused by the defendant's breach of Section 75AC of the Trade Practices Act 1974 (Cth), or of its duty of care at common law.

[2]

On 26 September 2008, the defendant commenced an appeal against the judgment and it now applies to this Court pursuant to r 761(2) of the Uniform Civil Procedure Rules 1999 (Qld) ("the UCPR") for a stay of judgment pending the determination of its appeal.

[3]

The defendant's application for a stay is based on its apprehension that, as the plaintiff is not employed, and appears to have little in the way of assets that are not encumbered, there is a real prospect that he may not have the capacity to repay any monies paid over to him by the defendant in the event that the appeal is successful.

[4]

It is also said on the defendant's behalf that the plaintiff will not be prejudiced if the damages are withheld from him pending the determination of the appeal. In this regard, it is said that the plaintiff has not personally incurred any special damages because the expenses associated with his injury were defrayed by the Department of Veterans' Affairs.

[5]

Further, the judgment in favour of the plaintiff does not include any component for past or future economic loss, so that the imposition of a stay would not result in the plaintiff being kept out of pocket in respect of such economic loss. Finally, it is said that the plaintiff's day to day living expenses, including the cost of domestic care, is being met by the Department of Veterans' Affairs.

[6]

On the plaintiff's behalf, it was argued in submissions filed on his behalf that "special circumstances" must be shown to justify the ground of a stay. There was support for that view, see Scarborough v Lew's Junction Stores [1963] VicRp 20; [1963] VR 129 at 130 and Challenge Charter Pty Ltd v Curtain Brothers Qld Pty Ltd [2004] VSCA 66; (2004) 9 VR 382.

[7]

It does appear now however that, at least in Queensland a decision of this Court in Berry v Green [1999] QCA 213 suggests that it is not necessary that "special circumstances" be shown. What is clear, however, is that this Court must approach the exercise of the discretion to grant a stay bearing in mind that a judgment given after a trial should not be treated as merely provisional, and that a successful party in litigation is entitled to the fruits of the judgment in his or her favour.

[8]

These considerations are, I think, aspects of the more fundamental concern which informs the application of r 761(2) of the UCPR, namely, that the Court should strive to ensure that orders which finally resolve litigation should be efficacious and should not leave a residue of avoidable injustice to the party which is ultimately successful.

[9]

This consideration means that where an appeal with arguable prospects is on foot, a stay should be granted where that appears to be necessary to ensure that orders ultimately made on appeal will not be nugatory. See McBride v Sandland [No 2] [1918] HCA 59; (1918) 25 CLR 369 at 373-374.

[10]

On the plaintiff's behalf, it is said that there is not even an arguable case on appeal and that the decision in the plaintiff's favour was based on the learned trial Judge's acceptance of the plaintiff's evidence of the circumstances in which he came to be injured and that the acceptance of that evidence was not something which was glaringly improbable or otherwise apt to be corrected on appeal.

[11]

The defendant's case is that the learned trial Judge's findings on matters of credit are not sufficiently articulated to justify the judgment in the plaintiff's favour. At least this is the principal basis agitated today in support of the appeal by Mr Myers, who appeared for the defendant.

[12]

As is often the case, on an application for a stay, the Court to whom the application is made can do no more by way of preliminary assessment of the prospects of the defendant's appeal than to determine whether the appeal is arguable, at least in the sense that the defendant's prospects are not so poor as to relieve this Court of the need to concern itself to ensure that the appeal not be rendered nugatory by the refusal of the stay. See Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685.

[13]

In my opinion, I am not able to say that the appeal is so hopeless that this Court should not be concerned with the prospect that the appeal will be rendered nugatory.

[14]

On behalf of the plaintiff, it is not disputed that he may have difficulty in repaying the judgment monies to the defendant should the appeal succeed, if those monies are consumed before the appeal is determined. In particular in this regard, there is a statutory refund due to the Department of Veterans' Affairs of in excess of $50,000. This is a first charge on the damages payable to the plaintiff before any sum is paid to him.

[15]

There must be, I think, some real doubt as to the ability of the plaintiff to repay this sum to the defendant if the appeal is successful. And so the defendant says as well, there is some reason to think that a large part of the balance may be disbursed beyond recovery by the plaintiff if the appeal succeeds.

[16]

The defendant also argues in its written submissions that the plaintiff's claim was allowed to proceed at such a leisurely pace that the consideration that a successful party should be allowed to enjoy the fruits of his judgment has less claim on the Court's discretion in this case than might otherwise be the case. In that regard, the injury to the plaintiff occurred on 19 December 2001, and the case did not come to trial until 19 November 2007.

[17]

On the balance of these considerations, I am led to conclude that the application for the stay should be granted.

[18]

I will therefore order that the decision of the learned trial Judge delivered on 29 August 2008 be stayed pending the outcome of the appeal.

[19]

In this regard, I note the undertaking given by counsel for the defendant to prosecute the appeal with all due diligence.

[20]

It is on the basis of that undertaking that I order that the stay be granted pending the determination of the appeal.

[21]

KEANE JA: In relation to the costs of the application, counsel for the plaintiff/respondent seeks an order that the costs of today be his costs in the event. That application was supported by reference to without prejudice correspondence of the 8th October in which a proposal for the resolution of today's application was put to the other side.

[22]

That proposal was not accepted, or indeed further discussed.

[23]

While I can accept that there is something in the criticism made on behalf of the respondent of the absence of any intimation from the defendant of its intention to bring this application before it was actually made, the fact remains that it was brought on due notice on the 2nd October and that the application was resisted today and I have concluded that that resistance should not succeed.

[24]

In my view, the defendant was not seeking an indulgence, but rather the exercise of a discretion in its favour in circumstances where it was said that the justice of the case warranted the exercise of that discretion in its favour.

[25]

The proposal that was put was quite different from that which the Court has ordered. In these circumstances, I consider that I should make the order that the costs of today's application be reserved to the Court of Appeal in the appeal.

[26]

The orders of the Court will be as I have indicated.

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Judgment (26 paragraphs)

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