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:- 1. That there was no such vehicle; and 2. That the opponent had not shown that he had carried out the due enquiry and search as to the identity of the motor vehicle which is the prerequisite to recovery from the Nominal Defendant. The matter has been dealt with in an unsatisfactory way before me, through no fault of the parties. The transcript of the judgment and of the evidence taken before Lloyd-Jones DCJ has not been available to this Court. It is notorious that there are great delays in the supply of transcript material from the District Court. It is therefore understandable that the parties should proceed with the matter as on agreed facts. Statements have, accordingly, been put to the Court concerning the contents of his Honour's judgment and the content of the transcript which it is impossible for me to check against the transcript record, that not being available to me. One affirmative matter is placed before the Court in the affidavit the solicitor for the claimant. This is the statement attributed to Lloyd-Jones DCJ when a similar application for a stay was made to him at the end of the proceedings on behalf of the Nominal Defendant. His Honour is alleged to have responded:- 2 UNREPORTED JUDGMENTS "There would be no merit in any appeal. I do not regard the application for a stay as being made bona fide. I regard the application as no more than an attempt to keep the claimant out of his money." It is difficult for me to reach a similar conclusion, at least on the material that is presently before me. I am not here sitting on appeal from the order made by Lloyd-Jones DCJ refusing a stay, but in discharge of the jurisdiction of this Court to protect the utility of appeals which are brought to the Court, as in this case today, as of right. It is common ground that the opponent was a person of modest means. I would be prepared to draw the inference that if, in the event of a successful appeal, the Nominal Defendant sought to recover a judgment paid to the opponent, this would prove impossible or, at least, extremely difficult. It is against this risk that the Nominal Defendant seeks to be protected. The case of the Nominal Defendant certainly looks to be a difficult one. His Honour rejected the evidence of witnesses called for the Nominal Defendant at the trial. Indeed, as I have been informed, his Honour stated in his judgment that the evidence of at least one such witness was "discredited". Again I have no way of judging whether this is so or not. I have to deal with this matter without the material that would normally be prerequisite to the exercise of the kind of discretion which is invoked. At least since the decision of this Court in Alexander & Ors v Cambridge Credit Corporation Limited (Receivers Appointed) & Anor (1985) 2 NSWLR 685 the Court has made it plain that (appeals now being regularly and normally brought, and not exceptional) the Court will nowadays normally provide a stay to preserve the status quo, particularly in the case of an appeal as of right and where, otherwise, a party would be deprived of the utility of the appeal. Of course, in each case the applicant for a stay bears the onus of satisfying the Court that a stay would be just. It is not to be had merely for the asking. On the other hand, stays are not now conserved to exceptional cases. Instances where stays may be refused include where the Court reaches the conclusion that the bringing of the appeal is not bona fide or that it is not based upon an arguable case, or that it is manifestly without merit. Lloyd-Jones DCJ, at the end of the evidence, with the full knowledge of the facts of the case reached those conclusions. But I have no such evidence. All I have is the fact of the appeal and the fact that unless a stay is granted the utility will be put, if not at nought, then close to nought. Necessarily, it cannot be left to a judge who is the subject of an appeal on fact and law to be, effectively, the determiner of whether an appeal will be successful or not. Notwithstanding the comments made by Lloyd-Jones DCJ I consider that I should preserve the position pending the appeal. The Nominal Defendant will, of course, have great difficulty in his appeal in overcoming the repeated instruction of the High Court concerning the approach to be taken on appeal to findings by the trial judge on the credit of witnesses. Cf the recent decision in Baumgartner v Baumgartner (1988) 62 ALJR 29, 33. But this Court can, in proper and exceptional cases, substitute its view on the probability of the facts of the evidence. In particular circumstances, it may do so even where credit of witnesses is involved. This fact is demonstrated by such decisions as Chambers v Jobling (1986) 7 NSWLR 1, 8, 20. I would therefore not be inclined to say, at least in the present state of the evidence, that the case for the Nominal Defendant is unarguable such that its utility need not be protected at all. URJ THE NOMINAL DEFENDANT v SKRPKA (Kirby P) 3 It was put that a compromise should be reached and an order made that a part of the judgment should be paid pending the appeal. I do not find this argument convincing. Either the utility of the appeal should be protected or it should not. This is not a case where any apportionment could be made by the Court. It is, in short, a case of black and white, win or lose. The claimant, the Nominal Defendant, brings his case seeking relief from the totality of the judgment entered. I believe that a stay should be granted. However the costs should, in the circumstances, be costs in the appeal. The orders I make therefore are:- 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.