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[1997] NSWCA 344
appellant. Stay granted pending determination of proceedings in the High Court or further order; costs in the motion to be costs in the proceedings in the High Court
The New South Wales Court of Appeal granted a stay of execution (preventing payment of a court judgment) while the defendant applied for special leave to appeal to the High Court of Australia. The case involved a solicitor's negligence claim where the plaintiff had won damages. The defendant wanted to appeal because the case raised an important new legal question: whether a judge assessing damages can rely on their own general knowledge and research, or whether they must hear expert evidence on historical rates of damages in other courts. This issue had not been clearly decided before. The Court noted that even though the plaintiff had been waiting for damages since 1991, the legal issue was significant enough that the High Court might want to hear it, and it would be difficult to get the money back if the defendant paid now but later won the appeal. The Court therefore paused enforcement of the judgment until the High Court decided whether to hear the appeal.
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WILLIAMS (T/as WHEELER) v BODEWIS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
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Mason P I think this is an appropriate matter for a stay. I am aware of the fact that it is a question of a stay pending an application for special leave to appeal to the High Court and that it is necessary for this court to consider whether there is a substantial prospect that special leave to appeal will be granted, together with the other matters discussed in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681 at 684 and the summary of the principles in D L v Director General of New South Wales Department of Community Services (1996) 136 ALR 200.
The issue of the material upon which a trial judge is entitled to rely in assessing damages in a solicitor's negligence case when the question at issue was the rate of damages payable in another court at an earlier point in time is certainly a matter of general occurrence yet this was the first case that seemed to confront the issue squarely. Whether a trial judge is entitled to rely upon his or her general knowledge or enquiries, or must require expert evidence to be given of the matter and the procedures to be adopted in disclosing the fruits of that knowledge or those enquiries, is a matter which the High Court may think of sufficient importance to have a grant of leave.
The evidence discloses that the plaintiff has been out of his damages for a considerable period of time, the proceedings having commenced in the Common Law Division in 1991. However, the application for special leave has been filed promptly. It appears to be in proper form raising issues which, if the High Court considers them appropriate and made out, may attract a grant of special leave.
I also have regard to the evidence that suggests that there may be more than usual difficulty in recovering the verdict if it is paid and if the appeal to the High Court were successful.
In those circumstances, there will be a stay pending the determination of the proceedings in the High Court or further order.
(In relation to costs, Mr McNally sought no order other than that costs be costs in the appeal to the High Court.)
Costs in this motion are to be costs in the proceedings in the High Court.
WILLIAMS (T/as WHEELER)
BODEWIS
(1986) 161 CLR 681
(1996) 136 ALR 200
Stay granted pending determination of proceedings in the High Court or further order; costs in the motion to be costs in the proceedings in the High Court