New South Wales v Nye [2004] NSWCA 29 (20 February 2004)

Last Updated: 3 March 2004

NEW SOUTH WALES SUPREME COURT

CITATION: State of New South Wales v Nye [2004] NSWCA 29



CURRENT JURISDICTION:

FILE NUMBER(S): 40031/04


HEARING DATE{S): 20 February 2004


JUDGMENT DATE: 20/02/2004

PARTIES:
STATE OF NEW SOUTH WALES (First Appellant)
Wayne Desmond GORDON (Second Appellant)
David John BARNETT (Third Appellant)
DIRECTOR OF PUBLIC PROSECUTIONS (Fourth Appellant)
Garry Raymond NYE (Respondent)

JUDGMENT OF: Santow JA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 21458/96


LOWER COURT JUDICIAL OFFICER: O'Keefe J

COUNSEL:
P Lakatos (Appellants)
D E Baran (Respondent)


SOLICITORS:
I V Knight, Crown Solicitor (Appellants)
Carroll & O'Dea (Respondent)




CATCHWORDS:
STAY OF EXECUTION - Stay of execution of a judgment - successful party terminally ill - other relevant factors - relevance of supposed practice.


ACTS CITED:
Supreme Court Rules Pt 51 r15; Pt 44 r5


DECISION:
See orders at [11]






LAST UPDATED: 23/02/2004

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40031/04

SANTOW JA

20 FEBRUARY 2004

STATE OF NEW SOUTH WALES & 3 Ors v Garry Raymond NYE

Judgment

1 SANTOW JA: This is an application for a stay of a judgment in the sum of $1,335,000 sought by the unsuccessful defendant, the State of New South Wales, and other defendants. The successful plaintiff as is common ground, is desperately ill and could die at any time. He is undergoing treatment in the advanced stages of cancer.

2 The matter came before me in the vacation on 27 January 2004. At that time orders were made with the concurrence of all parties for a limited stay until to-day. A condition of that stay required abbreviated notice of grounds of appeal with a written outline to be filed and served on or before 17 February 2004 by the prospective appellants and that has been done.

3 It is common ground that some of those grounds of appeal are plausibly arguable though that is not to express any further view on the merits.

4 The other condition of the limited stay on execution was that $4,800 of the judgment was to be paid to the solicitors of the respondent for payment of treatment expenses of the now respondent and that has been done.

5 I should record that the trial judge, O'Keefe J, ordered that $160,000 of the verdict be paid following contest on that matter. This amount was paid and the first defendant, State of New South Wales, now appellant, does not seek to have that sum taken into account in relation to the need for any further sums to be paid to the respondent for treatment including palliative care and accepts that such further sums should be paid when properly substantiated. What is proper substantiation should not of course be dealt with in any pedantic or difficult way given the circumstances where the respondent is desperately ill. Indeed I should record that that has been the proper approach that the State of New South Wales has taken.

6 It is common ground that the respondent has no assets other than modest personal assets and has indeed, apart from the need for treatment and possible palliative care, no particular needs though in the event of his death there would be the normal costs including funeral costs which I see as being in the same category as ongoing treatment costs, a matter on which the State of New South Wales concurs.

7 It was pressed upon me that there is an informal practice at least, that in personal injury cases such as this one, though concededly having complicating factors compared to the ordinary running-down case, half the verdict would be paid over. As best I can ascertain from the informal inquiries which both parties were content that I make, that is not a practice which should be elevated to any kind of guiding factor. Rather it has been on occasion a convenient course that parties have elected to pursue in relatively straightforward cases. In any event, even if the practice goes further than this I do not consider that the exercise of discretion called for under Pt 51 r15 and also Pt 44 r5 of the Supreme Court Rules should be exercised by reference other than to those factors which have guided the courts in a series of cases and notably Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685.

8 While it is a clear starting point that a successful litigant is ordinarily entitled to the fruits of victory, that consideration must be weighed against the concern that an appeal based on grounds which are not intrinsically implausible should not be rendered nugatory. Such an appeal would be rendered nugatory if a judgment were not stayed in circumstances where, expedition having been ordered, payment of the verdict sum or a substantial portion of it, could be irrecoverable in the event of a successful appeal. That is why as Alexander (supra) brings out, ordinarily an effective stay pre-supposes either that there can be no practical risk in paying over the verdict money or at the least security is proffered which removes that risk as a practical concern. Clearly the terminal illness of the successful party is a relevant factor, which has been treated as such. But it is not the only factor. The timing of an expedited appeal is also material.

9 Nor should it be overlooked that while one would not wish to encourage a constant repetition of applications, the possibility remains that a stay may be affected by both the timing and progress of the appeal. For example, the prospects of the appeal may on analysis prove less plausible as the appeal progresses. Moreover, in a very lengthy appeal unanticipated delays may occur giving rise to unanticipated needs on the part of the successful litigant that would have legitimately weighed when the original application for a stay was made, had those contingencies been foreseeable.

10 In all the circumstances I have therefore concluded that execution of the judgment and orders dated 16 December 2003 should be stayed pending the expeditious pursuit and completion to judgment of the appeal foreshadowed by State of New South Wales and the other appellants but on conditions which I set out below with my orders.

ORDERS

11 (1) Execution of judgment of O'Keefe J and the orders dated 16 December 2003, save as already satisfied or as dealt with under (b) below, be stayed until the appeal by the State of New South Wales and other appellants and any associated proceedings have proceeded to judgment, subject to the following conditions:

(a) compliance by the appellants with the orders made to-day and proceeding with such appeal with all due expedition;

(b) upon the respondent providing reasonable substantiation claiming medical, hospital or ongoing treatment expenses or expenses reasonably applicable in the event of the death of the respondent such as funeral expenses, actual or immediately anticipated, or other expenses of an analogous kind which are reasonable in the circumstances, the first appellant on behalf of all appellants will pay from the judgment sum the amount so substantiated and in that regard will act reasonably and not insist upon excessive formality consistent with the circumstances in which the respondent has necessarily to act through relatives or his solicitor.

(2) I make the orders contained in the short minutes of order attached, signed and dated by me for identification.

(3) The costs of this application to be costs in the cause.

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