Warren William Gordon Griffiths v Australian Postal Commission [1987] ACTSC 43 (26 June 1987)

SUPREME COURT OF THE ACT

WARREN WILLIAM GORDON GRIFFITHS v. AUSTRALIAN POSTAL COMMISSION
S.C. No. 1860 of 1980
Practice - Appeal - Judgment and Orders

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Practice - judgments and orders - quantum of damages - application for stay of execution of Supreme Court judgment pending appeal to Federal Court - jurisdiction and power to grant - whether need for applicant to show exceptional circumstances justifying stay - matters to be considered in exercising discretion - Federal Court Rules O.52 R.17 - Rules of the Supreme Court O.43 R.17.

Appeal - quantum of damages - pending from judgment of Supreme Court to Federal Court - application for stay of execution - preferable to bring before trial judge whilst case is fresh in his mind - matters to be considered.

Judgment and Orders - appeal on quantum of damages - application for stay of execution - matters to be considered.

Williams, Supreme Court Practice (Victoria) para.58.21.1

Alexander and Others v. Cambridge Credit Corporation Ltd. (1985) 2 NSWLR 685 at pages 693-695

HEARING

CANBERRA
26:6:1987

ORDER

Execution on the judgment entered on 16 April 1987 be stayed until the determination of the appeal against the decision of Kelly J. handed down on that day is determined by the Federal Court of Australia, upon condition that the applicant/defendant do within twenty-eight days pay to the plaintiff/respondent the sum of $25,000.00 (such sum to be in addition to the sum of $185,000.00 already paid to the plaintiff in respect of such judgment) and on the further condition that the applicant/defendant do prosecute the said appeal without delay.

There be liberty to apply.

Costs of this application to abide order of the Federal Court.

DECISION

This is an application under Order 43 Rule 17 of the Supreme Court Rules, which provides that the court or a judge may, at or after the time of giving judgment or making an order, stay execution until such time as it or he thinks fit.

2. Any doubt as to the jurisdiction of the Supreme Court to entertain an application for a stay of execution pending an appeal to the Federal Court of Australia is removed by Order 52 Rule 17 of the Federal Court Rules which provides as follows:

"17(1) An appeal to the Court shall not -

(a) operate as a stay of execution or of
proceedings under the judgment appealed
from; or

(b) invalidate any intermediate act or proceeding,
except so far as the Court or a Judge or the court
below may direct.

(2) The Court may vary or vacate any direction
of the Court or the court below referred to in
sub-rule(1).

(3) An application for a direction of the Court
or a Judge under sub-rule (1) shall be made to the
Court or a Judge by motion upon notice, and may be
made whether or not a similar application has been
made to the court below. An application for a
direction under sub-rule (2) shall be made to the
Court by motion upon notice, and may be made
whether or not a similar application has been made
to the court below."

3. Before dealing with the substantial dispute between the parties as to the nature of the application and what it is that the applicant is required to prove, it is convenient to say something shortly about the history of the matter. The plaintiff sued the defendant for personal injuries sustained in a motor vehicle collision on 8 January 1979. When the matter came on for hearing liability was not in dispute. In his reasons for judgment handed down on 16 April 1987, the trial Judge, Kelly J., awarded damages as follows:

Loss of earning capacity to date
of trial $109,238.00

Future loss of earning capacity $264,000.00

Loss of superannuation benefits $ 19,816.00

Physiotherapy expenses to
19 April 1985 $ 8,124.53

Further physiotherapy expenses to
August 1987 $ 11,666.00

Domestic assistance expenses $ 18,624.00

Future pharmaceutical expenses $ 6,000.00

Future medical expenses (general
practitioner) $ 4,300.00

Future medical expenses (psychiatric) $ 2,500.00

Past out-of-pocket expenses $ 39,988.59

Pain and suffering and loss of
enjoyment of life $ 65,000.00

Total: $541,132.59

4. The plaintiff was born on 15 October 1951. At the time of his injury he was not in employment, but he had for many years worked in managerial positions with various companies in various lines of business. His injuries were of a whiplash type. At first he received a good deal of conservative medical treatment and physiotherapy. He entered hospital for the first time in November 1980 for exploratory treatment. He returned to employment for about three months at the end of 1980. He went off work again. His condition grew worse. He spent a lot of time in hospital. He underwent a surgical fusion at two levels of the cervical spine in 1981. There were four manipulations under anaesthetic in 1981 and 1982. He returned to work in February 1982. His condition continued to deteriorate. He stopped work on 31 May 1982 and has not worked since. The learned trial judge reached the conclusion that the plaintiff was basically a witness of truth although there was some degree of exaggeration which the trial judge described as "a concomitant, as it were, of his personality". The trial judge further found that the plaintiff was permanently disabled and unemployable, suffering from continuing neck pain, depression and incontinence which is apparently due to the use of pain-killing drugs.

5. The award of damages is, on the face of it, a high one although counsel for the applicant/defendant has not sought to isolate any particular component of the award of damages which is said to be manifestly excessive. I should say that for myself I am not able to find the arithmetical basis for his Honour's award of $18,624 for the cost of domestic assistance. I should also say that it appears to me that physiotherapy expenses up till April 1985 may have been awarded twice over. However, I could well be wrong in my interpretation of the figures.

6. It was submitted on behalf of the plaintiff/respondent that in order to succeed on the application for a stay pending appeal, it was necessary for the applicant/defendant to show that there were "special circumstances" in order that the plaintiff should not be robbed of the "fruits of victory".

7. In my own view, it is misleading and probably putting it too high to say that the plaintiff must show exceptional circumstances. There are, however, statements to this effect in text books and in reported cases. Reliance was placed upon Williams, Supreme Court Practice (Victoria) para. 58.21.1. The author contrasted the Victorian practice with the New South Wales practice. It might be noted in passing that some of the cases referred to are decisions by an appeal court following a decision by the trial judge to refuse the stay of execution, and in such cases the tests may not be the same as at first instance. In any event, it seems to me that upon an analysis of the cases in recent years, any distinction between the practice in Victoria and that in New South Wales is more apparent than real. It is obvious that an applicant for a stay of execution upon a judgment has to make out a case why the judgment should not be enforced. A rule of court providing that an appeal does not of itself operate as a stay unless the court or a judge orders a stay may do nothing more than cast an onus upon the applicant for the stay to convince the court or the judge that the discretion to order the stay should be exercised. An applicant for a stay of execution pending appeal can hardly hope to succeed if he or she does not show that there is a reasonably arguable ground of appeal. But this does not mean and should not mean that the court of judge hearing the application for the stay should necessarily enter upon a provisional hearing of the appeal, assessing its chances of success on a percentage basis. The discretion to grant the stay is a wide one and what is aimed at is justice in all the circumstances. An applicant for a stay of execution pending appeal is, in my view, neither obliged to rely upon nor restricted to relying upon matters which have been persuasive in favour of a stay in past reported judgments. There is in this Territory, as far as I am aware, no practice of granting a stay pending appeal "on the usual terms". It is preferable that an application for a stay pending appeal on quantum of damages be made to the trial judge whilst the case is fresh in mind. Furthermore, if the judge hearing the application sees fit or is obliged to express a view as to the merits of the appeal, he may well disqualify himself from sitting on the appeal. The consequent difficulties that may arise in constituting a bench for the hearing of the appeal from this Court are obvious enough, and provide further reason for making the application for the stay to the trial judge.

8. The principles governing a stay of proceedings pending an appeal were set out fully, clearly and recently in a judgment of the New South Wales Court of Appeal in Alexander and Others v. Cambridge Credit Corporation Ltd. (1985) 2 NSWLR 685 at pages 693-695. I respectfully agree with what was said in that case, and there is no point in reproducing in these reasons for judgment the clear statement of law set out in that case. My preceding remarks are intended to be in accord with it.

9. For the purposes of the present application I have read the trial judge's reasons for judgment. I have read some of the transcript of evidence. The defendant's notice of appeal was filed in the Federal Court on 6 May 1987. The appeal is proceeding with due expedition but it will not be heard before October 1987. The notice of appeal is a "catch all" notice, with thirteen grounds of appeal alleging error in the calculation of damages in most if not all components. The finding of the learned trial judge that the plaintiff is permanently disabled is also challenged, but it does not appear to be disputed that the plaintiff suffers and will continue to suffer some degree of pain and disability and consequent loss of earning capacity.

10. Although the defendant has not condescended to particulars in elucidating any of the grounds of appeal on the hearing of this application for a stay, I think that it is impossible to say that all the grounds are unarguable. It really becomes a question of deciding on what terms it would be just to grant a stay.

11. The defendant paid into court a sum of $185,000.00, which sum has been paid out to the plaintiff. The plaintiff has expended nearly all of that sum in satisfaction of existing financial liabilities, including the discharge of a mortgage on land at Port Macquarie, and payment to a credit union of $74,585.78, presumably in discharge or partial discharge of a second mortgage over a crown lease at Block 3, Section 45, Holt. There is no real threat that the plaintiff will dissipate his assets. Whether the plaintiff is in receipt of social security payments I do not know but I conclude that he is in need of financial assistance.

12. The defendant has made what might be considered an entirely reasonable and open offer to undertake to pay any outstanding balance of whatever sum it might ultimately be adjudged to pay to the plaintiff, together with interest at seventeen per cent per annum. The plaintiff has rejected that offer, presumably on the basis that he needs money now to assist him in his everyday living.

13. On the face of it, even assuming that the appeal is successful, I think it unlikely that the appeal court would reduce the damages so drastically that the plaintiff would be awarded a sum substantially less than half of what the trial judge awarded. In the circumstances I think that the preferable course is to order a stay conditioned upon the defendant paying to the plaintiff within twenty-eight days the sum of $25,000 in addition to the sum already paid.

14. Accordingly, I order that execution on the judgment entered on 16 April 1987 be stayed until the determination of the appeal against the decision of Kelly J. handed down on that day is determined by the Federal Court of Australia, upon condition that the applicant/defendant do within twenty-eight days pay to the plaintiff/respondent the sum of $25,000.00 (such sum to be in addition to the sum of $185,000.00 already paid to the plaintiff in respect of such judgment) and on the further condition that the applicant/defendant do prosecute the said appeal without delay. Liberty to apply.

15. Unless the parties want to be heard I propose that the applicant/defendant be ordered to pay the plaintiff/ respondent's costs of the application.