Saint-Gobain Abrasives Pty Ltd v McPherson [2008] NSWCA 262 | Case summary

1 McCOLL JA: The Court has before it a Notice of Motion filed on 29 September 2008 by Saint-Gobain Abrasives Pty Limited, the applicant. The applicant appeals from a decision of Elkaim DCJ in which his Honour awarded the respondent, Wayne McPherson, damages in respect of his finding that a grinding disk manufactured by the applicant was defective which caused the respondent to suffer injury. 2 His Honour assessed damages on alternative bases: first at $420,131, on the basis that the assessment of damages was governed by the Civil Liability Act 2002. Secondly his Honour assessed damages at common law $498,952. He entered a verdict for the respondent in the latter sum. 3 One of the grounds of appeal upon which the applicant will in due course seek to rely relates to the issue as to whether damages ought to have been assessed under the Civil Liability Act. 4 Judgment was entered on 10 June 2008. Thereafter, according to the affidavit of Mr Jason Buttigieg sworn 26 September 2008, attempts were made to obtain the transcript of evidence relating to the hearing before Elkaim DCJ. It was not until 29 August 2008 that the transcript for the hearings on 20 and 26 May 2008 was received and it was not until 4 September 2008 that the transcript for the hearings on 21, 22 and 23 May was received. 5 On 8 July 2008, pending the receipt of the transcript, the applicant filed a Notice of Intention to Appeal. Mr Buttigieg says that having regard to the delay he was unable to provide the applicant with appropriate advice in relation to the prospects of success on appeal in order to comply with the Legal Profession Act 2004 and the Court's rules. On 8 July 2008 he wrote to the respondent's solicitors asking whether the respondent would consent to a stay of the judgment and enclosing a copy of the Notice of Intention to Appeal filed that day. He also advised that if the respondent did not consent to a stay of proceedings the matter would be listed for an appropriate application to be made. 6 On 10 July Messrs Brydens, the respondent's solicitors, advised they would be prepared to recommend to the respondent that he consent to a stay of the proceedings on condition that fifty per cent of the judgment be paid within seven days. On 21 July 2008, Messrs Brydens wrote again advising that as there had been no response to their letter of 10 July they proposed to commence recovery proceedings without further notice. 7 On 21 July the applicant's solicitors sent an e-mail to Messrs Brydens referring to that last letter and advising that they were in the process of listing the matter for the purpose of seeking a stay and asking that no further action be taken until that application for a stay had been determined. 8 On 5 August 2008 the applicant's solicitors wrote to Messrs Brydens again confirming their instructions to seek a stay and attaching a copy of the Court of Appeal's decision in TCN Channel Nine Pty Ltd v Antoniadis (2) [1999] NSWCA 104; (1999) 48 NSWLR 381, advising that it would be relied upon in support of any future application and asking whether the respondent was prepared to consent to a stay in light of that judgment. The letter advised that if consent was not forthcoming the application for a stay would have to proceed and that correspondence would be relied on in relation to costs. 9 On 5 August 2008 Brydens responded advising they would not consent to a stay and that as the judgment was by then almost two months old and the applicant had not yet either paid the judgment or applied for a stay that the respondent would not accommodate them further and in the absence of receiving a cheque or an application for a stay then recovery action would be commenced. 10 On or about 12 September 2008 the respondent served on the applicant a creditor's statutory demand for payment of debt pursuant to s 459E of the Corporations Act 2001 (Cth). 11 Mr Buttigieg says that the delay in lodging the stay application has flowed from the difficulties encountered in obtaining a copy of the transcript of evidence in the manner to which I have earlier referred. 12 In the course of the hearing before Elkaim DCJ the respondent gave evidence as to his employment since his accident, an extract of which is in evidence. It appears from that transcript that following the accident the respondent did not continue with the business he was then conducting but obtained a disability support pension through Centrelink. It did not appear that as at 20 May this year he had obtained employment. He was still on a Centrelink benefit. The respondent's wife also gave evidence. She confirmed that the respondent was in receipt of a disability pension and gave evidence that they were behind in their bills, rates, that their mortgage was not up to date. 13 Mr Buttigieg says that unless a stay is granted, then if the appeal is successful given the evidence as to the respondent and his wife's economic circumstances, the applicant will have extreme difficulty in recovering any funds paid to the respondent under the judgment. 14 Mr M Daley, who appears for the respondent, did not contest the evidence as to the respondent's impecuniosity. However he opposed the application on two bases. First, because of what he describes as the gross delay in bringing the stay application. He points to the fact that the appeal was filed three and a half months after the material date and was fifteen days out of time and that the application for a stay itself was not made until four months after the material date. He also submits that the applicant has not discharged its onus of demonstrating that the appeal has reasonable prospects of success, although he does acknowledge that the applicant has an arguable case in relation to the question of whether damages ought to have been assessed under the Civil Liability Act or at common law. 15 Mr Hooke, who appeared for the applicant, indicated that the substantial issue he perceived would arise on appeal would be as to the cause of the injuries the respondent suffered. He says that the experts, and I understand this to be both the parties' experts, to have been at one at trial that if the accident had occurred in the way in which the respondent and an independent witness, a Mr Keenan, described there would have been objective evidence on the guard of the grinder which the respondent was said to have been using at the time of the accident. 16 Mr Daley, who has the disadvantage of not having been counsel at the trial, has done his best in terms of seeking to discern from Elkaim DCJ's reasons the extent to which, as Mr Hooke submitted, there may be an incontrovertible evidence case in the Fox v Percy sense and submits that that does not emerge from his Honour's judgment. He submits that one possible explanation, also given I gather by an expert at trial, as to how the accident could occur without damage being inflicted on the guard, would be a process of disintegration of the disk in the manner of peeling an orange. Mr Daley also properly submits that the primary judge found in favour of the respondent as a witness of credit and regarded the independent witness as either impressive or a synonym thereof. 17 I accept that these are arguable matters on appeal. Having recounted some of the issue as identified between Mr Hooke and Mr Daley, I could not say that the appeal has no prospects of success. 18 The overriding principle in an application for a stay is to ask what the interests of justice require. Antoniadis is authority for the proposition that a stay is almost inevitably granted where if an appeal was successful the successful appellant would be unable to recover the judgment from an impecunious plaintiff. 19 In my view the applicant has explained the reason it took so long for the application for a stay to be made. As I have said on the preliminary assessment necessitated by the overview one can obtain of a judgment below in such an application I could not say that the appeal is hopeless. 20 In those circumstances it is appropriate in my view, in the circumstances of the respondent's impecuniosity and the prospect of irrecoverability of the judgment if the appeal is successful, that I stay the judgment. It is appropriate that that judgment be stayed on the basis that the applicant prosecute the appeal with expedition. Mr Hooke gave that undertaking. 21 I should also say that Mr Hooke said in the course of his submissions in reply that the appellant will need to amend its notice of appeal in relation to a matter which I will only refer to as arising from Elkaim DCJ's judgment (at [113]). He may also need to amend the Notice of Appeal should Mr Daley's calculations of time be correct and it be necessary that there be an application to extend the time within which to appeal. 22 Mr Hooke seeks the costs of the Notice Motion. Mr Daley opposes that application on the basis that the matters which were brought forward in the application today were more detailed than those matters which had been subject of correspondence. He submits that the appropriate order would be that costs be costs in the cause. 23 Although it is the case that the applicant's solicitors forwarded Antoniadis to the respondent's solicitors as I have referred to and Mr Daley did not argue that the principles in that case were not relevant in the factual circumstances of this case, nevertheless there is the fact that the applicant did not put on this application for a stay for some lengthy period of time. 24 I do not think that the difficulty in obtaining the transcript impacted in any way upon making an application for a stay. I think in the circumstances that there is force in Mr Daley's submission that the costs should be costs in the cause. 25 Noting that the applicant undertakes to prosecute the appeal with diligence, I make the following orders: (1) Stay the judgment of the District Court of New South Wales dated 10 June 2008 in proceedings 5076/06 until disposition of the appeal or until further order. (2) Give the appellant leave to amend the notice of appeal, such amended notice of appeal to be filed and served within seven days. (3) Costs of the motion to be costs in the cause . **********

Saint-Gobain Abrasives Pty Ltd v McPherson

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