STATE RAIL AUTHORITY OF NEW SOUTH WALES v MAALA [1988] NSWCA 145

STATE RAIL AUTHORITY OF NEW SOUTH WALES v MAALA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

McHucu JA 29 August 1988, 29 August 1988

[1988] NSWCA 145

APPEAL — Stay of proceedings — Closed period Award in Compensation Court — no evidence Opponent unable to repay award moneys if appeal successful — successful litigant's prima facie right to fruits of litigation — application refused. ORDERS 1. Notice of Motion dismissed. 2. Claimant to pay costs of Notice of Motion.

McHugh JA This is a Motion by the State Rail Authority seeking a stay of an award made by his Honour Judge Burke in the Compensation Court of New South Wales on 24 June 1988. The Claimant made an application for a stay of the award to the learned judge. But his Honour refused the application.

An affidavit in support of the Notice of Motion has been filed by the solicitor for the Claimant. It points out that the amount payable under the Award is $16,901 in respect of incapacity for various closed periods between 2 January 1986 and 1 September 1987. There is no continuing Award. In paragraph 9 of the affidavit, the solicitor purports to state the grounds for his Honour's refusal of the application for a stay. No copy of the judgment is available. Paragraph 9 asserts, that, as the deponent understood the judgment his Honour said that evidence during the proceedings disclosed that the Opponent, in addition to his employment with the Claimant, was engaged in substantial private work as a builder, that he owned considerable property, that he "must in those circumstances have plenty of money" and that the Authority would not be prejudiced if it were to pay the sum awarded.

Mr Neilson for the Claimant contends that these matters asserted in the judgment on the stay application are not in accordance with the findings in his Honour's judgment in the award proceedings.