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. However, Mr Ferrari for the Opponent has asserted that paragraph 9 of the deponent's affidavit does not accurately state the grounds of his Honour's reasons for refusing the stay. Mr Ferrari said that his Honour refused the stay because there was simply no evidence before him indicating that the Opponent would not be in a position to repay the award monies if the appeal was ultimately successful. Whatever may have happened in the court below, there is no evidence before this Court which indicates that the Opponent will be unable to pay the sum of $16,901 if the appeal is ultimately successful. In my view that is sufficient reason for refusing the present application. It needs to be said once again that prima facie a successful party is entitled to the fruits of his verdict. An appellant is only entitled to a stay of proceedings if he demonstrates by evidence or admission that there is a real possibility that, if the appeal is successful, the verdict monies will be irrecoverable. Before 1942 that rule of practice was regarded as axiomatic and rigidly applied. After the introduction of the Motor Vehicle (Third Parties Insurance) Act 1942, a practice grew up in New South Wales of making stay orders almost as of course in personal injury actions. The basis of this practice was that many, if not most 2 UNREPORTED JUDGMENTS successful plaintiffs in third party insurance actions and industrial accident actions were relatively impecunious and likely to be unable to repay the verdict monies if the appeal were successful. As a consequence judges have tended to make stay orders in these cases on the application of the defendant and without any detailed evidence of the plaintiff's assets or ability to repay the verdict moneys. The vitality of the old rule, however, remains. It has been followed on many occasions in cases outside the personal injury field. It has been recognised in the Supreme Court in Andrews v John Fairfax and Sons Pty Limited [1979] 2 NSWLR 184 and by this Court in Cambridge Credit Corporation Pty Limited & Ors v Alexander (1985) 2 NSWLR 685, although in that case the Court pointed out that the appellant need not prove special or exceptional circumstances to obtain a stay. The rule was also adverted to by Dawson J in Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) 160 CLR 220 at 222-223. There is no evidence before the Court to indicate that the opponent will be unable to repay the sum of $16,901 if the appeal is successful. There are no other circumstances calling for a stay of proceedings. In the circumstances the motion is dismissed with costs.