THE CANTERBURY HOSPITAL vy CAPPELLETTO SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY JA 6 November 1989 [1989] NSWCA 240 Mahoney J In or about June 1981 the plaintiff, who was aged sixty years at thetrial, was operated upon at the defendant's hospital by Dr Claxton, one of the defendants. It is alleged that she suffered injury for which the defendants are responsible in damages. On 30 May 1989 a jury returned a verdict for Dr Claxton and against the hospital, the verdict against the hospital being for $471,000. The hospital has appealed against that judgment, both on grounds raising an issue of liability and also on grounds going to the quantum of verdict. It has been conceded by Mr Hislop, and quite properly, that the grounds of appeal are grounds of substance and are not, to use a term used in the course of argument, speculative. Evidence has been placed before the court that the plaintiff is a person who has lost a good deal of her sight and who receives a blind pension. I put the matter generally in these terms. She lives with her family in the premises owned by her and her husband, and there are two other properties registered in their joint names. It is agreed that her ownership of these properties is as joint tenant with the husband. The hospital asks for a stay of execution on the judgment pending the determination of the appeal. No evidence has been put on on behalf of the plaintiff, who opposes the application. Mr Hislop has submitted to the court that if there is to be a stay it should be a condition of the stay that a payment be made on account of the verdict: reference is made in the correspondence between the solicitors to an amount in excess of $200,000. The matter is discretionary. The principles on which the court is to act have not been in issue in the application. In the circumstances I think a stay should be granted. I do not propose to order the payment of a sum of money as condition of the stay. As there is a genuine contest as to liability and as there appears to be no delay alleged in the preparation of the appeal papers, I do not think that the circumstances warrant the ordering of payment of a sum of money, the securing of it in some appropriate way, and the making of provision for the return of it in due course. It has not been alleged that there is a pressing need in the plaintiff for the payment of the sum pending the appeal. Reference has been made to payment of outstanding accounts in relation to services provided to the plaintiff and to the proceedings before the court. Taking all of the circumstances into account I do not think that this is a case in which the payment: of a sum of money should be ordered as a condition of the stay. In my opinion therefore, an order for the usual stay should be granted and no conditions should be imposed. HIS HONOUR: What is the form of order that you ask for? 2 UNREPORTED JUDGMENTS SPERLING: We would ask for an order that execution on the order be stayed pending the appeal. HIS HONOUR: What do you say about the costs of the application? HISLOP: I submit they should be costs of the appeal. HIS HONOUR: On the concession there was a genuine appeal, it is arguable you should not have opposed it. What have you to say about costs, Mr Sperling? SPERLING: We would ask for an untrammelled order as to costs. Until this morning the application for a stay as such was opposed. The live issue in argument became whether a sum of money should be paid on which we have wholly succeeded. The ordinary order should be that we should have our costs. HIS HONOUR: The order for costs I make is that the costs of the application be the applicant's costs in the appeal.