O’Meara v Adams [2020] NSWSC 975

Supreme Court New South Wales

Medium Neutral Citation: O'Meara v Adams [2020] NSWSC 975 Hearing dates: 27 July 2020 Date of orders: 27 July 2020 Decision date: 27 July 2020 Jurisdiction: Common Law Before: Campbell J Decision: (1) The judgment of the Local Court given on 12 December 2019 in matter 2018/00234014 is stayed pending the disposition of the appeal or application for leave to appeal in this Court filed on 9 March 2020 on the condition that Mr O'Meara prosecute the appeal with all due diligence. (2) The costs of the parties are costs in the appeal. Catchwords: CIVIL PROCEDURE – stay of proceedings – pending appeal – where bankruptcy proceedings have been initiated in Federal Court of Australia – where litigant's right to appeal may be defeated Legislation Cited: Local Court Act 2007 (NSW) s 39 Civil Procedure Act 2005 (NSW) s 101 Cases Cited: Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685 Category: Procedural and other rulings Parties: Matthew Patrick O'Meara (Plaintiff) Jane Adams (Defendant) Representation: Counsel:

Solicitors: Matthew Patrick O'Meara (In person) Stephen Campbell (Defendant) File Number(s): 2020/75550 Decision under appeal Court or tribunal: Local Court Jurisdiction: General Date of Decision: 12 December 2019 Before: Magistrate Gibson File Number(s): 2018/00234014

Extempore judgment revised 1. In this matter, the plaintiff Mr O'Meara, appeals from a judgment given against him in the Local Court on 12 December 2019. By Notice of Motion filed on 14 July 2020, he seeks a stay of the judgment below. The judgment is opposed by the defendant who is represented by Mr Stephen Campbell, solicitor. 2. The background to the dispute arises out of the break-down of a domestic relationship. The financial affairs of the parties were resolved by deed. Part of that deed, I have not seen the document itself, provided for "the return" of certain cattle said to be the property of the defendant in this court. That did not occur. It is unnecessary for me to go into the details, but the defendant commenced proceedings in the Local Court initially in the tort of detinue and then after the plaintiff, Mr O'Meara, who is self-represented, sold the cattle in the course of his business, in the tort of conversion. 3. The substantial dispute in the Local Court, so far as I can ascertain from what I have been told by the parties, relates to the proper date for the tort of conversion accruing which was seen to be, if not critical, then very germane to the question of valuation and therefore, quantum. 4. Mr O'Meara, on appeal, wishes to argue that first, in selecting a date in 2018, the learned Magistrate went beyond the issues that had been left for his determination by the parties. Up until the day on which judgment was entered, according to Mr O'Meara's case, it was common ground that that date was a date in March 2019 when the cattle were actually sold at the cattle sales. The Magistrate of his own motion, before giving judgment, raised with the parties a different view and suggested the date would be a date in 2018 when apparently the evidence, to the Magistrate's mind, established that Mr O'Meara had exercised dominion over the cattle. When this issue was raised, the plaintiff below changed position to adopt the position propounded by the Magistrate. 5. I am not saying either way whether, on that short description, the question of bias in the sense of prejudgment arises, however, Mr O'Meara wishes to argue that point on appeal, and if he is successful, of course, bias constitutes a question of law for the purposes of s 39 of the Local Court Act 2007 (NSW). 6. He also wishes to argue, that in any event, in adopting the earlier date, the learned Magistrate was in error, and it seems to me that that is a matter involving a question of mixed fact and law for which he would require leave. Very germane to the question of a grant of leave of course, is the amount in dispute which Mr O'Meara tells me is about $5,000 or $6,000 on the basis that, if his position had been adopted, the award of damages would have been about half that awarded by the Magistrate which itself is only a little over $10,000. 7. There is an additional twist to the matter and that is that by way of enforcement of the Local Court judgment, the defendant has served a bankruptcy notice, and a creditor's petition has now been filed in the Federal Court of Australia to which Mr O'Meara has lodged objection and that matter is set down for hearing, as I understand it, in early August. Obviously, if his objections are not upheld, and he is made bankrupt, his capacity to conduct these proceedings will be stultified because his cause of action, such as it may be, to appeal under the statute, would be property which would vest in the trustee in bankruptcy. 8. To add another twist to the matter, in an attempt to preserve his position, Mr O'Meara has applied to pay the judgment by instalments. His application has been accepted and he has commenced to pay instalments in the sum of $1,000 per month. The effect of that, I am reminded by Mr Campbell, is that the Local Court judgment is stayed. However, the time for the defendant in this Court to object to the order for instalments has yet to expire, and Mr Campbell informs me that he has instructions to object. The matter will take some time to be resolved, no doubt, but the simple fact is that that stay is uncertain and for that reason, I decided to hear the application to avoid a need for this matter to be re-invigorated in this Court if the objection to the instalment order is upheld. 9. Mr Campbell has also reminded me of the principles which govern the exercise by an appellate court of the power to grant a stay of execution of judgment below until the disposition of the appeal. It is sufficient for me to refer to Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685. The starting point of course, as he reminded me, is that "the successful litigant below is entitled to the fruits of his or her judgment" and that the judgment of a court at first instance is not to be treated as in any way provisional pending the outcome of an appeal. 10. Normally, the appellate court will require some particular risk of injustice to the appellant in order to exercise the power to stay the judgment pending the appeal. Very often, that consideration will resolve itself into a question of whether the statutory right of appeal would be rendered nugatory or the appeal itself would be stultified so that the litigant's statutory right is defeated without the benefit of a hearing on the merits. I should say normally, the power would only be exercised even in those circumstances if the grounds of appeal propounded are shown to be fairly arguable. 11. I have not had the benefit of the transcript of the proceedings and the judgment below, and I am making every allowance for Mr O'Meara being a self-represented litigant. It seems to me that it is difficult to say on the materials that I have, whether or not the grounds he wishes to propound are fairly arguable. I say nothing on the bias point because I cannot determine that without considering all of the circumstances, and one would be slow to attribute bias to a professional judicial officer. 12. On the other hand, it seems in circumstances where: there had been common ground between the parties as to the date of conversion; that that date was material to the valuation of claim at first instance; and there was a late change of position, that change of position is the type of thing which may well found a good point on appeal. So I am prepared to say that on the limited materials I have, the appeal is fairly arguable. 13. For all that has been said by Mr Campbell, it seems to me that the strongest point in favour of granting a stay is the existence of the bankruptcy proceedings. Proceedings in bankruptcy are a perfectly legitimate, regular and frequently encountered manner of enforcing a judgment debt and no criticism can be levelled at anyone for taking that course. It is often a very effective means of achieving justice in the case. However, it does have the potential effect of stultifying Mr O'Meara's appeal if a stay of enforcement is not granted. 14. In the circumstances, although the situation may be considered to be finely balanced, I am of the view that unless I grant the stay, Mr O'Meara will not be in a position to present his points of appeal in this Court. I should also say that the delay in the plaintiff below in obtaining satisfaction is likely to be short, given that the matter has been fixed for hearing on 4 November next; and so far as prejudice is concerned, interest will be running in accordance with the rate fixed under s 101 of the Civil Procedure Act 2005 (NSW) which is well above what is commonly available in the community. 15. In these circumstances, I propose to grant the stay, but it will be on the condition that Mr O'Meara prosecutes the appeal with all due diligence. 16. The order which I propose to make is that: 1. The judgment of the Local Court given on 12 December 2019 in matter 2018/00234014 is stayed pending the disposition of the appeal or application for leave to appeal in this Court filed on 9 March 2020 on the condition that Mr O'Meara prosecute the appeal with all due diligence. 2. The costs of the parties are costs in the appeal. 1. I will add by way of addendum, although the appeal was lodged late and after the initiation of the bankruptcy proceedings, Mr O'Meara has explained that in the affidavit evidence by reference to the delay in obtaining a full transcript of the Local Court proceedings. I observe that he appears to have moved with appropriate diligence thereafter. It may have been better if his appeal had been lodged in any event with an explanation that he was awaiting the transcript. However, again making allowances for him being self-represented, he is unlikely to be familiar with the preferred practice.