THE NOMINAL DEFENDANT v SKRPKA [1988] NSWCA 106

THE NOMINAL DEFENDANT v SKRPKA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 1 February 1988

[1988] NSWCA 106

PRACTICE & PROCEDURE — stay — appeal from District Court — transcript of evidence and judgment unacceptable — affidavit as to contents of judgment — trial judge refuses stay — relevant evidence described as "discredited" — motives of stay and merits of appeal questioned by trial judge — he refuses stay — motion to Court of Appeal for stay — held: (1) Stay should be granted to protect utility of appeal. Alexander & Ors vy Cambridge Credit Corporation Ltd (Receivers Appointed) & Anor (1985) 2 NSWLR 685. (2) Although findings on credit of witnesses by trial judge necessarily limit disturbance by appellate court, such court may in appropriate exceptional case substitute its opinion on relevant facts and trial judge may not effectively determine question of stay of execution of an appeal from his own orders by his conclusions as to bona fides or merits of appeal — stay ordered. Chambers v Jobling (1986) 7 NSWLR 1, 8, 20; Baumgartner v Baumgartner (1988) 62 ALJR 29, 33 considered.

ORDERS

1. That execution upon the judgment entered by his Honour Judge Lloyd-Jones DCJ on 11 November 1987 be stayed pending disposal of the appeal; and

2. That the costs of the motion be costs in the appeal.

Kirby P This is a contested application for a stay of a judgment entered by Lloyd-Jones DCJ in favour of the opponent. It is heard by me, sitting alone, pursuant to the powers conferred on me by s46 of the Supreme Court Act, 1970.

The opponent was injured in a collision. He brought his claim in the District Court against the Nominal Defendant, seeking damages. The basis of his claim was that the injuries arose out of the negligence of the driver of an unidentified motor vehicle for whom the Nominal Defendant was liable in law. The Nominal Defendant contested the claim before his Honour, relevantly, on two bases:-