ALLCO STEEL CORPORATION v YOO [1988] NSWCA 6

ALLCO STEEL CORPORATION v YOO

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE JA 11 July 1988

[1988] NSWCA 6

Clarke JA (Motion) This is an application for a stay of execution upon a judgment the entry of which was directed by Giles J on 17 June 1988. The total amount of the judgment was $189,699.78.

The appeal from the judgment challenges both the findings on liability and the assessment of the damages awarded. The ground of the application is that the respondent is presently an illegal immigrant. I quote from page 25 of Giles J's reasons for judgment where he said: "The plaintiff came to Australia on a visitor's visa. From the expiry of the visa he was in Australia illegally. On 15 January 1987 he was arrested by the Department of Immigration and detained until 1 April 1987. He is presently the subject of a deportation order whereby he will be deported to Korea."

It is argued for the appellant that if the damages award is paid to the respondent, then he may leave the country either as a result of the execution of the deportation order or of his own volition and render nugatory in a practical sense any success that the appellant enjoys in the appeal.

In the particular circumstances of this case that argument is a fairly appealing one. Were I persuaded that the appeal on the issue of liability was a relatively strong one, I would no doubt accede to the application to stay execution. However, when one examines the grounds of appeal on the question of liability one is driven to the conclusion that even though they cannot be described as hopeless they do not create an impression of strength. It seems to me that the appellant has a difficult job in front of it in seeking to persuade the court that the failure to fence the hole in question was other than a negligent failure. In saying that I am focusing on one aspect of the negligence issue for there were a number of other areas in which I gained the impression that the respondent looked fairly secure in his hope to retain his verdict.