Stay
13The defendant seeks a stay of the judgment pending appeal. Two affidavits have been read in relation to the application. The effect of that affidavit material is that the plaintiff and his family are experiencing significant financial hardship. This is consistent with the findings made in Fuller-Lyons (No 3). The judgment monies are very much needed to address those difficult personal circumstances. Any delay in their payment is likely to cause hardship in terms of his ongoing treatment and personal circumstances. However, the material also indicates that, as is to be expected, if the judgment monies are paid over and dissipated to the plaintiff, or his family, they will become irrecoverable in the event that an appeal succeeds.
14The defendant has referred to a passage from the judgment of Campbell JA in Woolworths Ltd v Strong (No 2) [2011] NSWCA 72; 80 NSWLR 445 at [67] to [69] to the effect that, possibly subject to one matter, in circumstances where it is clear that if there is no stay and the appeal is successful then any judgment monies paid over will be lost, then a stay should be ordered. The potential matter of exception that should be noted is that such a principle is subject to the general considerations discussed in Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685 concerning the granting of a stay. One of those considerations is that while the Court does not undertake any in depth review of the arguments on the appeal, it nevertheless should make "some preliminary assessment about whether the appellant has an arguable case" (Alexander at 695E).
15In oral submissions, counsel for the defendant, Mr Casselden, made two submissions in support of the proposition that his client at least had an arguable appeal in respect of liability. First, he submitted that there was no evidence for the finding, which is referred to in Fuller-Lyons (No 3) at [6], that the plaintiff became trapped in the doors of the train when it left Morisset station "with at least one arm, one leg and part of his torso protruding from the carriage". That finding is expanded upon elsewhere in Fuller-Lyons (No 3). It derives its support from the proposition that the lesser part of the plaintiff that was located between the doors, the less likely he was able to open them in the short period between the time that the train left the station and he exited the train.
16Second, Mr Casselden submitted that there was no evidence that, at the time the train left the station, the CSA, that I referred to earlier, was performing duties on the station, including observing the doors. Otherwise, he reiterated a submission made at trial that there were a number of other possibilities as to how the plaintiff could have exited the train, including the possibility that something like a foot or drink bottle had been placed between the train doors when it left Morisset station and that enabled him to exit through the doors while the train was in transit.
17It is not an easy task, on the limited material available before me, to make an assessment as to the defendant's prospects success in the of appeal. Senior Counsel for the plaintiff, Mr Barry QC, submitted that once the Court accepted the evidence of the plaintiff's brother as to the fact that neither of the plaintiff's brothers in any way assisted the plaintiff to interfere with the doors (Fuller-Lyons (No 3) at [67]), then the various permutations as to how the plaintiff could have left the train narrowed dramatically. There is some force in that, but, nevertheless, in circumstances where the finding of liability, at least in part, depends upon the drawing of the inferences in the manner outlined in Fuller-Lyons (No 3), I am not in a position to be able to conclude that the defendant does not have a reasonably arguable appeal.
18In those circumstances, and given the evidence as to the plaintiff's means, I think it is inevitable that I must order a stay. I do so in circumstances where it is agreed that any stay will be on the condition that the defendant file and serve a notice of appeal within twenty-eight days. The defendant also put forward, as a further condition, that it will not oppose any application by the plaintiff for an expedited hearing of the appeal, based on the plaintiff's financial circumstances. This will be reflected in the orders that I make.
19Accordingly, the Court orders:
(1)Judgment for the plaintiff in the amount of $1,536,954.55.
(2)The defendant to pay the plaintiff's costs on an ordinary basis to 3 April 2013 and thereafter on an indemnity basis.
(3)The New South Wales Trustee and Guardian be appointed as the financial manager of the plaintiff.
(4)Execution of the judgment be stayed on the following conditions:
(a)the defendant is to file and serve any notice of appeal within twenty-eight days;
(b)the defendant will not oppose any application by the plaintiff for an expedited hearing of the appeal based on the plaintiff's financial circumstances.