HOMEBUSH MEAT TRANSPORT PTY LTD v QUINN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P 22 December 1988, 22 December 1988 [1988] NSWCA 66 PRACTICE AND PROCEDURE JUDGES appeal stay of execution of judgment — entitlement to stay to protect the utility of the appellate process — need to establish a case for relief by evidence — failure to establish such a case — orders below not accompanied by reasons — reasons on tapes supplied to parties by trial judge — tapes being transcribed — whether temporary stay should be granted — held: (1) General stay of execution should be denied for absence of sufficient evidence to justify such a stay. Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 applied; (2) But a temporary stay should be granted to protect the claimant's right in law to have transcribed reasons for the adverse decision below and to prepare its notice of appeal in the light of those reasons. Pettitt vy Dunkley [1971] 1 NSWLR 376 at 382 and Soulemezis vy Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 277f. referred to. JUDGES — reasons — duty to give — provision of untranscribed tapes containing — held: Temporary stay of execution should be given to allow tapes to be transcribed and time for preparation of considered notice of appeal. ORDERS 1. Execution upon the judgment entered by Judge Mahoney in the District Court on 9 December 1988 in proceedings between the claimant and the first opponent are stayed for twenty-eight days from this date. 2. Both parties have liberty to apply to the court, including to the Vacation Judge if need be, for an extension of that stay, in the event that the judgment is not available within twenty-eight days or otherwise, upon one day's notice to the other. 3. The costs of the motion for a stay to be costs in the appeal. Kirby P I am dealing with this motion pursuant to s46 of the Supreme Court Act1970. The motion concerns an appeal from a judgment entered by Judge Mahoney in the District Court on 9 December 1988. The judgment, in turn, arose out of a trial heard by his Honour on 21 and 22 November 1988. The precise circumstances of the proceedings between the parties has not been disclosed to the Court. However, I have been told from the Bar table that they relate to a civil damages action brought by the first opponent, Kenneth Quinn, against his employer, the claimant, Homebush Meat Transport Pty Ltd, in respect of injuries suffered by Mr Quinn. These injuries were apparently received by Mr Quinn in the course of his employment when a bone dislodged from a carcass being unloaded and caused the injuries for which he sued the claimant. Third party proceedings were commenced by the claimant against the second opponent, the Government Insurance Office of New South Wales. The second opponent is not before the Court. However, because it has already been provided with a stay, no prejudice is done to it by my proceeding to deal with the application for a stay brought by the claimant. 2 UNREPORTED JUDGMENTS The material upon which the Court was asked to provide a general stay in favour of the claimant was sparse indeed. It amounted to no more than an affidavit of Ms Elizabeth Murphy, sworn 16 December 1988. That affidavit disclosed that Judge Mahoney gave judgment on 9 December 1988, entering a verdict for the first opponent against the claimant in the sum of $62,400. He also entered a verdict for the claimant against the second opponent, the insurer, in the sum of $20,800. The source of the difficulty which has arisen in this case is the fact that his Honour did not publish reasons to support the orders which led to the judgment which he entered. However, his Honour made available to the parties audio-dictation tapes which contained an oral statement of his Honour's reasons. I assume that this course was adopted because of the delays in the preparation of typed judgments in the District Court which are notorious. But the expedient which his Honour adopted has led to the difficulty that none of the parties knows the precise basis upon which his Honour entered judgment against the claimant or the basis of the judgment in the third party proceedings against the second opponent. The parties are entitled by law to receive his Honour's reasons for judgment. See Pettitt v Dunkley [1971] 1 NSWLR 376 at 382; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 256f, 268f, 277f. and many other cases in which this entitlement has been made plain by the court. It is no fault of the claimant, or for that matter of any of the other parties, (or indeed I am prepared to infer of his Honour) that they do not have the reasons now. But the lack of reasons has led to the suggested inability of the claimant to provide a notice of appeal in appropriate detail setting out the grounds upon which it will rely on the return of the appeal. The second ground of appeal, as filed, relies upon "such other grounds as appear when the transcript of evidence and the transcript of judgment become available." The claimant says that it prefers to wait until his Honour's judgment is available to prepare a fuller notice of appeal. Whilst this may be desirable in the sense of ensuring the filing of an appeal of adequate particularity, it leaves the position of the application in an unsatisfactory state. It might be thought that counsel who appeared for the claimant at the trial would have been able to indicate whether liability would be in contest on the appeal, having regard to the issues which were litigated at the trial. I am informed that there was a lively contest on that issue at the trial. However, no evidence of this, nor evidence to illustrate the nature of the contest, has been placed before me. In Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 the Court made it plain that it will act resolutely, by the provision of a stay, to protect the utility of the appellate process. However, a claimant for a stay does not secure a stay simply for the asking of it. A proper basis must be placed before the Court to provide a stay supported by appropriate evidence. Such a stay disturbs the rights of parties who are entitled to rely upon a judgment which has been lawfully entered. If I were asked here and now to order a general stay upon the basis of the material placed before me, I would reject the application. There is insufficient material to indicate that there is a genuine contest in the appeal on liability and the nature of that contest. However, the circumstances of this case are unusual, even peculiar. The absence of reasons for judgment has put all of the parties in a position of disadvantage in considering their rights on appeal. URJ HOMEBUSH MEAT TRANSPORT PTY LTD v QUINN (Kirby P) 3 I am informed that the second opponent, the insurer, has uplifted his Honour's tapes and is, at this time, arranging to have them transcribed. I would anticipate that the transcription would take no more than a matter of weeks from the date upon which the tapes were uplifted, namely 13 December 1988. It is unlikely that any significant prejudice would be done to any party if a short stay were granted to protect the right of the claimant to have a transcript of his Honour's reasons for judgment. Providing such a stay will protect the claimant's rights in a way which would probably not have been necessary had the reasons for judgment been handed down as usual on the announcement of orders disposing of the proceedings. The claimant is entitled to have the reasons. At its lowest, the preparation of its notice of appeal would have been significantly impeded by the absence of such reasons. The orders which I therefore make are: 1. Execution upon the judgment entered by Judge Mahoney in the District Court on 9 December 1988 in proceedings between the claimant and the first opponent are stayed for twenty-eight days from this date. 2. Both parties have liberty to apply to the Court, including to the Vacation Judge if need be, for an extension of that stay, in the event that the judgment is not available within twenty-eight days or otherwise, upon one day's notice to the other. 3. The costs of the motion for a stay to be costs in the appeal. Counsel for claimant: J P Deggens Solicitors for claimant: Michell Sillar and Brown Counsel for opponent: C A McDonald (1st opponent) Solicitors for opponent: Lamrock and Son (City Agents: White Barnes McGuire)