BARIC v THE COUNCIL OF THE CITY OF LIVERPOOL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P 1 February 1988, 1 February 1988 [1988] NSWCA 13 PRACTICE & PROCEDURE — stay pending appeal — appeal as of right from Land and Environment Court — Judge of that Court declines stay — proper approach by Court of Appeal to the exercise of its discretion — relevance of estimate of prospects of appeal's succeeding — Alexander & Ors vy Cambridge Credit Corporation Limited (Receivers Appointed) & Anor (1985) 2 NSWLR 685, 695 discussed — limited role of such assessment — function to protect utility of appeal — whether irretrievable damage to appellant in default of stay — whether necessary to interfere in orders below — proceedings still before judge at first instance — held: no stay granted but liberty to apply to provide relief in the event that agreed adjustment to orders below are not made. Supreme Court Act 1970, s46. ORDERS 1. The motion to be listed for mention on 11 April 1988. 2. Costs of the motion be costs in the appeal. 3. Liberty to apply upon two days notice to the other party. 4. I direct that the transcript of these proceedings be taken out so that it can be available to Cripps J. Kirby P The motion before the Court is for a stay of certain orders made by the Chief Judge of the Land and Environment Court (Cripps J) pending the determination of an appeal which has been brought to this Court from a decision of the Land and Environment Court. The motion has been dealt with by me pursuant to s46 of the Supreme Court Act 1970. It is agreed that the appeal is brought as of right. However, it must be said, without further delay, that the notice of appeal filed by the claimant is entirely defective. It gives no indication, at least with the specificity which this Court requires, of the grounds of appeal that will be argued. The notice of appeal will need to be amended. Due notice should be given to the opponent and to the Court of the true grounds upon which the claimant will seek to advance his case before the Court. Unsuccessful application for stay at first instance A similar application for a stay was before Cripps J on 22 January 1988. His Honour refused the claimant's application for a stay. I have had placed before me the uncorrected transcript of his Honour's reasons for his refusal. As his Honour outlined at the beginning of his reasons, the stay application is the latest step in substantial litigation which has been before the Land and Environment Court on a number of occasions during the past five years. Putting it shortly, Cripps J refused to order a stay on the basis (as I read his Honour's judgment) that such an application should properly be made in this Court. However his Honour expressed his opinion that he had jurisdiction to grant a stay. Nevertheless he was disinclined, in the exercise of his discretion, to do so. His Honour was of the opinion that there was no substance in the submission of law which is the essential basis of the appeal which the claimant intends to bring to this Court. 2 UNREPORTED JUDGMENTS It seems that Cripps J had the benefit of two days of argument of that substantive question. I have not had such an advantage, if it should be so described. The substantive question has been argued before me very briefly. I have but the faintest glimmering of understanding of the way in which, in due course, the case will be argued before the Court. Such understanding has not been enhanced by the notice of appeal. As I have said, it adds no light whatsoever to the way in which the claimant will eventually bring his case. In the nature of an application of this kind, I have had to rely upon the bare bones of argument which limited time has permitted to each counsel for the purpose of outlining their respective contentions. The nature of the litigation It is sufficient for present purposes to say that the claimant and his wife occupy certain land in the local government area of the Council of the City of Liverpool ("the Council'). That land is subject to land use zoning. The zoning apparently prohibits the development of the land otherwise than for the purposes of domestic dwellings. There is on the land both a dwelling and a factory. The factory is the subject of the objection by the Council. It was the cause of the initiation of an application on 8 January 1982 by way of proceedings for relief in the Land and Environment Court. By such proceedings, the Council sought an injunction against the continued breach by the claimant and his wife of the applicable planning law and an order from that Court that the factory premises (though not the dwelling) be demolished in order to bring the land into compliance with that law. Orders as sought by the Council were duly made on 16 April 1984 by Perrignon J. By his orders, his Honour required the claimant and his wife to cease to use the factory premises on the subject land and to demolish the factory. To this day the claimant has not done so. In consequence, on 16 April 1986, an application was dealt with by the Land and Environment Court by which the claimant, for his non compliance, was charged with contempt of the order of that Court. On 29 January 1987, Perrignon J made an order for the arrest of the claimant and his wife. His Honour permitted that order to lie in the office of that Court until February 1987. The claimant, however, failed to purge his contempt. In the consequence, the claimant (but not his wife) was committed to prison. He remained in prison until, on 9 July 1987, he was released by order of Cripps J. Notwithstanding his release, the claimant continues to decline to purge his contempt. Cripps J suspended the order previously made by Perrignon J until 6 August 1987. On 16 August 1987 the Council applied for a writ of sequestration of the estate of the claimant for the purpose of enforcing the order of the Land and Environment Court. That writ of sequestration was duly ordered. It instructed named sequestrators to take possession of the claimant's property and to demolish the factory premises, but not the dwelling of the claimant. The claimant then sought a stay of the order of sequestration. It was this application which was heard over two days in January 1988 by Cripps J. Put very shortly (and with a brevity which doubtless does inadequate justice to the claimant's argument) the claimant says that the order for sequestration amounts, in effect, to a punishment. Having previously been punished by the order made pursuant to the finding of contempt, the claimant argues that he cannot now, in law, be punished twice. URJ BARIC v THE COUNCIL OF THE CITY OF LIVERPOOL (Kirby P) 3 Preliminary assessment of the prospects of the appeal I am not yet convinced that this argument is sound in law. However in the circumstances and manner in which applications of this kind must be dealt, that is not the relevant question. Necessarily the Court cannot, in stay applications, conclusively evaluate the merits of an appeal. A single Judge of appeal especially should not purport to do so. But the Court of Appeal itself is likewise unable to do more than to reach a tentative preliminary assessment of the prospect of the appeal for it typically hears no more than an outline of the arguments of the case. It would be an inefficient use of the Courts's scarce resources and time to permit stay applications to be turned into, in effect, a complete argument of the issues that will later have to be resolved with full argument. No more can be done than to offer a tentative, provisional view of the merits. See Alexander & Ors v Cambridge Credit Corporation (Receivers Appointed) & Anor (1985) 2 NSWLR 685, 695. The enquiry is principally concerned, at least in appeals as of right, with whether the appeal is plainly meritless, beyond argument, vexatious or a misuse of the Court's appellate facility. The question is thus whether the case is so unarguable that the Court should decline to defend its process and the right of the claimant to bring his appeal, despite the risk that the utility of the appeal may thereby be rendered nugatory by steps which are taken pending the opportunity which the Court will have, in the due course of its list, to dispose of the proceedings. Arguments of irretrievable prejudice to the appellant The claimant put before the Court a number of reasons why irretrievable prejudice would be done to him if the Court did not grant a stay at this stage. Further, he said that the writ of sequestration covered his personal assets as well as the dwelling house and factory building and that an application had been made by the sequestrators to take certain contents from the house which he occupies, as his dwelling, with his wife and children. The Council has indicated before me that no argument would be advanced, at least at this stage, that such application was necessary for the purpose of effecting the order of sequestration or to protect the interests of the Council. In taking this position I consider that the Council has acted properly. Secondly, it was said that a mortgage payment of approximately $2,000 per month was required to satisfy the mortgage executed in respect of the subject land upon which the factory premises and dwelling are built. The Council indicated an acknowledgment that it is in its interests (as well as those of the claimant) that the mortgage payments should be maintained pending the outcome of the appeal to this Court. Only in this way will the assets of the claimant be preserved for the benefit of disposition for the benefit of the ultimate victor in this litigation. Again, I regard this as a proper stance on the part of the Council. Thirdly, it was put that the claimant relied upon the income of the subject factory premises in order to be able to pay normal living and like expenses for himself and his family. Placed before the Court - without contest - was an affidavit of the claimant sworn 29 January 1988. That affidavit contains evidence that, in addition to the income from the factory premises, the claimant receives income from a company, Dynamo Enterprises Pty Ltd, of which he and his wife are shareholders. Between them, their income from this source is approximately sufficient to meet their average living expenses. Accordingly, no relief is presently necessary to ensure that their living expenses are covered from the rental of the factory premises, pending the outcome of the appeal. 4 UNREPORTED JUDGMENTS The result is that the order for sequestration made by Cripps J need be altered by this Court, if at all, only for the purpose of preventing the envisaged action to take the contents of the claimant's dwelling house and to ensure that the sequestrators are authorised and required to pay the relevant mortgage sum to the mortgage (including the amounts outstanding in back payments). Ihave been informed that the proceedings in the Land and Environment Court have been listed for further hearing before Cripps J on Friday 5 February 1988, on which date it is the intention of the claimant to seek relief from the removal of personal assets from the dwelling house. The principle of minimal interference in orders under appeal Instead of providing an order of this Court, in effect varying the operation of the sequestration order of the Land and Environment Court, as a term of granting a stay, it seems to me that it is preferable, at least at this stage, that the matter should be left to be dealt with by Cripps J. I can do so, without in any way interfering with the exercise of his Honour's discretion by offering the opinion that, if I were dealing finally with the matter and discharging the duties of this Court in the exercise of its powers, I would be inclined to grant relief at least to the extent of varying the effect of the order of sequestration to deal with the two matters which are most pressing for the claimant and which are not contested by the Council. As both parties agree that the personal effects should not be removed from the claimant's house and that the mortgage payments should be paid pending the outcome of the appeal, a variation of the order of sequestration would appear adequate to protect the respective positions of the parties until this Court can deal finally with the appeal. Adopting that course has the further advantage of interfering as little as possible, where it is unnecessary to do so, in the course of proceedings which are still continuing before Cripps J and next to be before him later this week. It also avoids reaching even a preliminary conclusion on the prospects of the appeal which I find difficult to evaluate at this stage. The only order which therefore needs to be made is that these proceedings stand over for further mention on Monday 11 April 1988. In the meantime, it may be anticipated that Cripps J will have had the opportunity of considering the application which the claimant intends to make for variations to the orders which he has already made. If those variations are made, I gather that, in practical terms, the immediate need for a stay will be removed. If, in the meantime, any steps are taken by the Council or the sequestrators which require relief in this Court I record the fact that it would, at this present juncture, have been my intention to provide a limited stay and a measure of relief to the claimant upon appropriate terms. However, I consider that it would be preferable for the matter, in the first instance, to be the subject of the further application before Cripps J, which is foreshadowed. It was not suggested that relief need be given in the interval between now and the listing before Cripps J. I have recorded all these matters to save time in the eventuality, as cannot entirely be put out of account, that these proceedings will come back to this Court. If they do, it will be expected that, on the next occasion, the notice of appeal will be put in proper form and written submissions filed so that the Court can proceed to consider with greater assuredness the arguability of the point of law which the claimant intends to raise on the appeal. In the light of that point, URJ BARIC v THE COUNCIL OF THE CITY OF LIVERPOOL (Kirby P) 5 better understood, and for the limited purpose which I have explained, the Court could then proceed to make such orders for a stay of a permanent kind (if any) as should be made. The orders I therefore make are: - The motion to be listed for mention on 11 April 1988. Costs of the motion be costs in the appeal. Liberty to apply upon two days notice to the other party. I direct that the transcript of these proceedings be taken out so that it can be available to Cripps J. RYN COUNSEL FOR THE APPELLANT - CLAIMANT: MR J MILLAR COUNSEL FOR THE RESPONDENT - OPPONENT: MR R TALBOT SOLICITORS FOR THE APPELLANT - CLAIMANT: MARSDENS SOLICITORS FOR THE RESPONDENT - OPPONENT: COUNCIL CHAMBERS