1. Vision's application for a stay is supported by an affidavit sworn by Wayne Morphett on 10 February 2023 in which he deposes to matters concerning the proceeding in the Trial Division. Exhibited to the affidavit is material filed in that proceeding together with the application for leave to appeal.
2. Vision effectively repeats the submissions in support of the stay application referred to in [21] above. It submits that the appeal may be rendered nugatory because there is a real risk it will not be restored 'substantially' to its former position should it be required to pay the judgment debt - which it describes as a 'very considerable sum' - prior to the determination of its application for leave to appeal (and any appeal).
3. In support of its submission that an appeal may be rendered nugatory where there is a real risk that the appellant may not be restored 'substantially' to its former position should it be required to pay the judgment debt, Vision relies on the decision of this Court in Cellante v G Kallis Industries Pty Ltd ('Cellante').[23]
4. In that case, Young CJ (with whom Brooking J agreed) quoted the following passage of Dawson J in Federal Commissioner of Taxation v Myer Emporium Ltd (No 1):[24]

It is well established by authority that the discretion which it confers to order a stay of proceedings is only to be exercised where special circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal. Special circumstances justifying a stay will exist where it is necessary to prevent the appeal, if successful, from being nugatory. Generally that will occur when, because of the respondent's financial state, there is no reasonable prospect of recovering moneys paid pursuant to the judgment at first instance. However, special circumstances are not limited to that situation and will, I think, exist where for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed.[25]

1. The holding that special circumstances justifying the grant of a stay will exist where there is a real risk that the successful appellant will not be to be restored substantially to their former position was adopted by this Court in Maher v Commonwealth Bank of Australia ('Maher').[26]
2. In its written submissions, Vision argued that it is inevitable that the totality of the damages paid to Mr Elisha will not be recoverable because the appeal will take several months, during which time Mr Elisha will have to rely upon that money and will inevitably spend some of it. In oral submissions, Vision emphasised that Mr Elisha will have to use the judgment sum for his living expenses. Depending on how long it takes to resolve the appeal, Mr Elisha may be dipping into the judgment sum for his living expenses for several months.
3. Vision submitted that it was also possible that, if the damages award was paid now, a significant portion of it would be disbursed in payment of legal costs, but did not seek to elaborate how that might occur. It was not disputed that Mr Elisha was liable to his lawyers for legal costs only on a 'no win/no fee' basis.
4. According to Vision, this means that even if it is successful on appeal, it will not be 'substantially' restored to its previous position because some of the judgment sum will have been dissipated. It conceded that whether the circumstances in the present case constitute special circumstances will depend on what this Court makes of the term 'substantially' as used in Cellante.
5. Additionally, Vision asserts that granting a stay will result in 'a no-disadvantage outcome' for Mr Elisha. Currently, Mr Elisha is receiving compensation in the form of weekly payments from Vision pursuant to s 347 of the Workplace Injury Rehabilitation and Compensation Act 2013.[27] If the application for a stay is granted, Vision will continue making the weekly payments to Mr Elisha to ensure that he receives an income while the appeal is pending. During this time, penalty interest will continue to accrue. If Vision is unsuccessful on the appeal, these sums will be deducted from any 'damages award'.
6. Mr Elisha has filed a notice of opposition to the application for a stay, written submissions in support of that notice, and two affidavits sworn by his solicitor, Nick Korkliniewski.
7. Mr Korkliniewski has deposed that he believes that Mr Elisha 'has no intention of disbursing the substantial amount of the judgment'. Mr Elisha has been advised and understands that upon payment of the judgment sum, he will no longer be entitled to WorkCover payments which will immediately cease. There will be a period of 20 years during which he will be precluded from receiving social security payments.
8. Mr Korkliniewski deposed further as follows:

(b) In the event that the appeal is successful and judgment set aside, then

the WorkCover payments to which [Mr Elisha] has been entitled to date,

and which would cease upon payment of the judgment amount, would

automatically resume as the basis for their termination would not exist.

He would then be entitled to a lump sum payment, backdated to the date

on which payments stopped, and this would very likely fully

recompense him for any amounts that he has spent, from the judgment

sum, on living expenses, and would thus restore the judgment amount.

(c) the arrangement with his solicitors has been on a contingency basis and

that therefore, in the event that the appeal is successful and judgment is

set aside, any monies which have been paid in respect of legal expenses

will be refundable by his solicitors, and will reestablish [sic] the full

capital amount of the judgment.

1. In the course of oral argument, counsel for Mr Elisha accepted that Vision's proposed grounds of appeal were at least arguable, observing that the trial judge was concerned with a difficult area of law.
2. However, in Mr Elisha's submission, Mr Morphett's affidavit does not contain anything capable of displacing the prima facie position that a successful party is entitled to the benefit of the judgment below. An appeal may be rendered nugatory where there is a real risk that the plaintiff would remove the proceeds of the judgment from the jurisdiction. However, Vision has made no allegations of this kind - indeed, 'there is nothing in [Vision's] submissions which would not apply to any appeal from a judgment in a personal injuries case'. Vision makes only 'bold assertions' that the judgment debt, if paid, might be dissipated on expenses and costs, which amount Vision makes no attempt to quantify.
3. Mr Elisha submits that the amounts that would be disbursed for living expenses are relatively small and come nowhere near to preventing Vision from being substantially restored to its pre-trial position if the appeal is successful.

1. Vision must establish that there are special circumstances warranting the grant of a stay of the judgment below. It is not sufficient that the balance of convenience may favour the grant of a stay. The 'no-disadvantage' proposition and the undertakings proposed to be given by Vision - that it would continue making weekly payments to Mr Elisha and pay penalty interest on the judgment sum if unsuccessful on appeal - seem to be directed to the balance of convenience, rather than to making out the required exceptional or special circumstances.
2. This is also not the occasion on which to make any considered appraisal of the merits of Vision's proposed appeal. It is sufficient for us to say that, having considered all of the material, we are of the view that, consistent with the concession of Mr Elisha's counsel, some of them raise complex questions of law and are clearly arguable.

1. This Court in Maher described circumstances in which an appeal may be rendered nugatory as follows:

An appeal could be rendered nugatory in that sense in a variety of ways. The test could be satisfied where a defendant appeals and there is a real risk that the plaintiff would remove the proceeds of the judgment from the jurisdiction. Similarly, special circumstances may be recognised where, for example, although the respondent is solvent, the subject matter of the appeal is, in substance, irreplaceable.[28]

1. Although this is not an exhaustive description, it demonstrates the seriousness of what is required to render an appeal nugatory based on the dissipation of an award of damages.
2. In this case, there is no risk of the removal of proceeds from the jurisdiction. However, more relevantly, there is no suggestion that they will be dissipated to an extent that could be described as 'substantial'. Mr Elisha has been living off WorkCover payments for some time. It may be inferred that his needs are relatively modest. We are not persuaded that his living expenses pending the hearing and determination of the appeal could give rise to a significant diminishment of the judgment proceeds and thereby prevent Vision from being substantially restored to its original position, should it succeed on appeal. Mr Elisha's solicitor has deposed that he has no intention of making any significant expenditures. His legal costs will only be payable if he retains the damages that have been awarded. Moreover, the evidence was that, even to the extent that the judgment proceeds were drawn upon, they would be effectively restored by reason of a lump sum payment (equivalent to the value of the weekly payments foregone).
3. There is therefore no basis upon which to conclude that the judgment sum will be significantly reduced or otherwise compromised prior to the determination of the appeal (assuming that leave to appeal is granted). We are not satisfied that, if the judgment is not stayed, the appeal will be rendered nugatory.
4. In our view, Vision has failed to establish the required exceptional or special circumstances justifying an order for a stay in this case. We see no reason to deprive Mr Elisha of the fruits of the judgment below.

[1] Elisha v Vision Australia Ltd [2022] VSC 754, [1]-[4] ('Reasons').

[18] Reasons, [529]. Although the trial judge expressed the view that the dismissal was prima facie negligent, he was ultimately bound to follow the principle in Aldersea v Public Transport Corporation [2001] VSC 169; (2001) 3 VR 499 ('Aldersea'): ibid [515]-[515], [529]-[532]. In Aldersea, Ashley J concluded at [117] that the common law does not yet recognise an entitlement to damages for personal injury resulting from wrongful termination of employment.

[19] [2020] VSCA 269, [23] (McLeish, Niall and Sifris JJA).

[20] Loftus v Australia and New Zealand Banking Group Ltd [2016] VSCA 114, [8] (Whelan and Kaye JJA).

[21] See Castaway Avenue Pty Ltd v CSC1957 Investments Pty Ltd [2022] VSCA 238, [17] (Beach JA and J Forrest AJA); V601 Developments Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2022] VSCA 77, [36] (Sifris and Macaulay JJA); Amcor Ltd v Barnes [2020] VSCA 57, [10] (Ferguson CJ and Beach JA); Michos v Eastbrooke Medical Centre Pty Ltd [2019] VSCA 140 , [29] (Kyrou and T Forrest JJA).

[22] Phillips v Southage Pty Ltd [2014] VSCA 17, [26]-[27] (Whelan JA, Santamaria JA agreeing at [79]). See also R v Independent Broad-Based Anti-Corruption Commissioner (No 2) [2015] VSCA 280, [8] (Priest and Kaye JJA); Palmer v Permanent Custodians Ltd [2009] VSCA 164, [38], [56] (Dodds-Streeton JA, Beach JA agreeing at [69]).

[23] [1991] VicRp 99; [1991] 2 VR 653.

[24] [1986] HCA 13; (1986) 160 CLR 220.

[25] Ibid 222-3 quoted in Cellante [1991] VicRp 99; [1991] 2 VR 653, 657 (citations omitted).

[26] [2008] VSCA 122, [25] (Dodds-Streeton JA, Redlich JA agreeing at [1]).

[27] Section 347 provides for when an employer ceases to be liable to pay compensation in respect of an injury by way of weekly payments.

[28] [2008] VSCA 122, [26] (Dodds-Streeton JA, Redlich JA agreeing at [1]). See also Cellante [1991] VicRp 99; [1991] 2 VR 653, 657 [10].