GOVERNMENT INSURANCE OFFICE v LARGE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P 26 September 1988, 26 September 1988 [1988] NSWCA 55 PRACTICE — appeal — stay — appeal on quantum — trial judge refuses stay — motion for stay from Court of Appeal — part payment of judgment sum — no need for further protection — held: motion dismissed as relief is unnecessary — no question of principle. PRACTICE — use of proper titles in Court of Appeal Motions — parties to be described as "claimant" and "opponent" not "appellant" and "respondent". ORDERS 1. Execution upon the judgment of Judge Levine stayed pending the orders of the Court disposing of the appeal. 2. Motion otherwise dismissed, the Court noting that a sum of $35,000 together with out-of-pockets has already been paid to the opponent, the balance to abide the outcome of the appeal. 3. The claimant to pay the opponent's costs of the motion. Kirby P By motion, the claimant, the Government Insurance Office of New South Wales, which is the appellant in these proceedings, seeks orders that the execution of the judgment of the District Court be stayed and that the costs of the motion be costs in the appeal. I am dealing with the motion pursuant to s46 of the Supreme Court Act 1970. I break off to observe that in these proceedings, once again, the title is not correctly set out. No reference is made to the title of the motion. In motions in the Court of Appeal, the parties are to be described as "claimant" or "opponent", having regard to which party has instituted and which is responding to the motion. It is incorrect to describe the parties by their titles in the appeal (i.e. "appellant" or "respondent"). Nor are the orders sought in the motion in proper form. However, the orders sought are, in substance, those which I have outlined. The matter has been before the Court on a number of previous occasions. The delay in bringing the matter to finality has been occasioned by the well known problem of securing the transcript of the judgment under appeal, given in the District Court. That transcript is now available. The reasons for judgment of Judge Levine dated 13 May 1988 have been placed before me this morning. His Honour found negligence on the part of the claimant in what is an unremarkable motor vehicle accident. He ordered that a verdict and judgment be entered in favour of the opponent in the sum of $71,453.20. That sum included out-of-pocket amounts which were agreed at $1,953.20. It can therefore be seen that there is a substantial amount which his Honour intended to award for general damages. The parties have placed before me, by affidavit, material which is not contested. This includes, principally, a great deal of medical evidence relating to the condition of the opponent and other material relevant to the assessment of her damages. The notice of appeal filed indicates that the issue of liability will not be in contest on the appeal. Following the filing of the notice of motion and earlier listings before the Court, the claimant paid half of the judgment sum to the opponent together with the out-of-packet expenses. The opponent resists the making of the order sought 2 UNREPORTED JUDGMENTS by the claimant and relies upon the judgment of Judge Levine. However, having regard to the principles stated by the Court in Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685, 693, and the need to protect the utility of the appellate process, it appears to me that the payment of half the judgment sum is an appropriate step to provide to the opponent that sum which it is unlikely that the Court would interfere with, were the claimant's appeal to succeed. I indicate no opinion, not even a preliminary opinion, about the chances of success on the appeal against judgment entered by Judge Levine. But experience has shown that it is important that courts should protect appellants from being in the position of having once succeeded on the appeal then failing to secure the fruits of their success. Few results are more likely to bring the appellate process into disrepute and the administration of justice into poor community opinion. Had there been evidence before the Court relating to the assets and means of the opponent which would have shown that the claimant was in no danger as to the recovery of any judgment moneys paid over to the opponent, the position might have been different. But there is no such evidence as to her assets. Although it is for the claimant to secure the stay it seeks and for the claimant to prove that conditions are such as to warrant the giving of the stay, it is proper, at the end of the evidence, to ask whether that evidence demonstrates that there is any risk to the utility of the appeal in the absence of the making of the orders sought. As there is no evidence before the Court concerning the opponent's assets, I consider that it is appropriate to provide a stay. As to the terms, I think I should leave matters in the condition they are left by the payment of half the verdict sum together with the out-of-pocket expenses. That sum was only paid after the bringing of the claimant's motion. I consider that it is appropriate that the opponent should have the costs of the motion. Accordingly the orders which I make are: 1. Execution upon the judgment of Judge Levine stayed pending the orders of the Court disposing of the appeal. 2. Motion otherwise dismissed, the Court noting that a sum of $35,000 together with out-of-pockets has already been paid to the opponent, the balance to abide the outcome of the appeal. 3. The claimant to pay the opponent's costs of the motion. Counsel for the Claimant: K Rewell Solicitors for the Claimant: JD Mulder Counsel for the Opponent: R Wood Solicitors for the Opponent: Walsh and Blair