J v L & A Services Pty Ltd [1993] QCA 89

Court of Appeal (Qld)|1993-03-24|Before: Thomas J, Pincus J, Shephderdson J, Shepherdson J

Heiser Bayley and Mortensen for Workers' Compensation Board and L. & A. Services Pty. Ltd.

Clayton Utz for Drs. Sullivan, Nicolaides & Partners

These are applications for stays of judgments of this Court given on 15 February 1993, from which special leave is being sought to appeal to the High Court. Each of the applicants is a plaintiff in suits in which it is alleged that one of them, "R", acquired the virus known as HIV in the course of his employment in a pathology laboratory and transmitted it to the other, "J"; alternatively, it is said that "J" also acquired it in the course of her employment in the laboratory; damages are sought. The applicants obtained from Thomas J. orders of a limited character, inhibiting publication of their names in connection with the proceedings, but those orders were set aside on appeal to this Court; it was ordered on 15 February 1993 that the orders of Thomas J. be set aside:

"... after a period of 28 days to allow the Respondents an opportunity to seek Special Leave to Appeal to the High Court if they are minded to do so".

The applications were, in effect, to extend the 28 day period allowed by this Court's order of 15 February, because the applicants have decided to apply to the High Court. The applications were opposed, but we have allowed them, reserving our reasons.

Mr. Copley Q.C., senior counsel for certain of the respondents to the application, argued that the Court has no jurisdiction to grant a further stay. He relied principally upon the decision of the Full Court of the Supreme Court in Sinnamon v. New Zealand Insurance Co. (No. 2) [1898] Q.L.J. 24. There, a plaintiff obtained from the Full Court a judgment in his favour for a sum under £500; the result was that the defendants could appeal to the Privy Council only after obtaining leave. In reasons with which the other judges agreed, Cooper J. held there was no jurisdiction to stay proceedings in the matter, pending the application for leave. His Honour said:

"I am of opinion that, when we gave that judgment, we were done with the case - that the Court was functus officio - and that, there being no appeal given by the law from that decision, we have no jurisdiction to stay proceedings in the matter. We have done with the whole case".

Mr. Copley contended that the decision should be applied in the present circumstances, where there is (as in Sinnamon's case) no right of appeal beyond the Supreme Court.

It seems to us, however, that subsequent decisions strongly support the proposition that the Court of Appeal has inherent power to grant a stay to enable an attempt to be made to challenge a decision of its own. Authorities in favour of that view, as to Privy Council appeals, are Howarth v. Walker [1903] 3 S.R.(N.S.W.) 235, Liebe v. Molloy [1907] WALawRp 12; (1907) 9 W.A.L.R. 116, F.A.I. Insurances Ltd. v. Registrar of Workers' Compensation Commission of New South Wales [1982] 1 N.S.W.L.R. 239 and Brinds Ltd. v. Offshore Oil N.L. [1986] VicRp 63; [1986] V.R. 635. As to applications for special leave to appeal to the High Court, there is a decision of the Queensland Full Court, McMillan v. Hambledon Nominees Pty. Ltd. (No. 2) [1991] 1 Qd.R. 118, in which the jurisdiction was assumed to exist, presumably because of the decision of Brennan J. in Jennings Construction Limited v. Burgundy Royale Investments Proprietary Limited [1986] HCA 84; (1986) 161 C.L.R. 681 in which it was distinctly held to exist (684). We refer to Nguyen v. Nguyen (1990) 169 C.L.R. 245 at 269, 270 for the proposition that intermediate appellate courts should not regard themselves, now that there are no appeals as of right to the High Court, as strictly bound by their own previous decisions.

The Queensland Court of Appeal has, in our view, jurisdiction to stay one of its own orders, to allow it to be challenged on an application for special leave to appeal to the High Court. That was, in effect, done by the Court on 15 February, for that express purpose, and all we are asked to do is to extend the stay further. It seems to us plain that we should do so, because the question raised is an arguable one and, more importantly, because unless the stay is extended there will be little or no point in the High Court proceedings.

We also take into account that the extension of the stay would not, as it seems to us, cause any significant inconvenience to the respondents. Their counsel complained that stays would inhibit their preparation of the case unduly, but that is not entirely so. The fourth order made by Thomas J. in each case permits the identification of the applicants and their addresses and occupations, as well as of information derived from documents in the proceedings "to the extent necessary for the preparation of the parties' cases and on the undertaking first obtained of the person to whom the matter is published not to republish the matter ...". Counsel for the respondents contended that if the decision of the Court of Appeal is not disturbed by the High Court, then their clients might not gain full advantage from that unless there were a substantial gap in time - Mr. Doyle suggested six months - between unrestricted publicity being given to the matter and the date of trial. Mr. Harrison Q.C., who led for the applicants, did not resist the inclusion in our order of a provision designed to ensure that the stay would not continue in force until trial, so that there would be such a gap as was desired by the respondents.

Another complication in the matter is that third party proceedings have recently been taken against insurers, who are affected by the orders of Thomas J., although they were not parties to the proceedings when those orders were made. The third party proceedings will no doubt tend to delay the trial. Although it was submitted that the applicants should not be allowed to pursue their actions at all during the stay, we see no reason for making an order to that effect. Nor do we think it a proper course to insert any specific limitation designed to achieve the result which the respondents desire and the applicants do not oppose, namely that the trial shall not commence until some time after the termination of the stay. That seems to us unnecessary at this stage and the problem of achieving such a gap is, we think, best left to be dealt with if any dispute about it arises, in accordance with the circumstances then existing. The orders we have made continue the stay until the High Court disposes of the matter; this has been done for convenience, but of course that Court might make some other order for a stay, or remove the stay.

That the order of the Court of Appeal of 15 February 1993 setting aside the orders of Thomas J. be stayed until the plaintiffs' application for special leave to appeal to the High Court has been disposed of, provided that if special leave is granted the stay will continue until the appeal is disposed of and provided further that the stay may be set aside or varied on application to this Court. Costs reserved.

At a glance

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Judgment (13 paragraphs)

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