WATER RESOURCES COMMISSION v GRAHAM SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY JA 21 August 1989 [1989] NSWCA 223 Mahoney JA This is an application brought by the Commission seeking an order that execution on the judgment entered by McInerney J on 11 July 1989 be stayed. The position as has been put to the court by counsel is that a judgment was given in favour of the plaintiff by a jury in July 1989. The amount of the judgment, as described in the evidence on affidavit before the court, is $220,000. The court has been informed that, with deductions for worker's compensation and with the addition of interest the amount is to the order of $238,800; I do not think the difference is of moment in the present application. The appeal has been lodged upon two broad grounds. The first ground relates to, as it is alleged, improper communications made between a Sheriff's Officer and the jury during the course of their deliberations. It is no doubt to be submitted on the appeal that this will warrant the verdict being set aside. The second ground asserts that the quantum of the verdict cannot be supported by the evidence. Presumably it will be submitted that the jury verdict was so wrong as, within the appropriate principles, to warrant it being set aside as excessive. His Honour granted a stay of execution in relation to the matter for a period but, as I understand the position, that stay has now ceased. The stay was granted, as it was described in the affidavit evidence before the court, on terms, including the term that the defendant pay $100,000 to the plaintiff. I infer that, in fact, that $100,000 was not paid. Apparently no steps were taken to execute the judgment, notwithstanding that the sum of $100,000 was not paid. I do not have a copy of his Honour's judgment in relation to the matter, and I therefore do not have the benefit of knowing the grounds on which he acted. But I am informed and I will act upon the basis that that stay was only for a period of time and that that period has expired. There is, therefore, nothing to prevent the plaintiff now executing upon the judgment. The court is informed that the proceeding was one in which the defendant did not deny liability. The Commission apparently accepted that it was liable and the Commission did not give evidence at the trial. The court does not have before it any indication of the evidence given on behalf of the plaintiff and is not able to assess the strengths or weaknesses of the plaintiff's case. The situation therefore is - I put the matter broadly - that this is a matter in which there is an uncontested liability for damages for some amount; that the plaintiff's entitlement is to the amount of the jury's assessment; and that the defendant's claim is that an amount significantly smaller than $100,000 would be the proper amount. The court is asked to grant a stay of execution. Ordinarily, in circumstances of that kind, I would be disposed to grant a stay but I would do so, as I have indicated to the parties, upon the basis that I would require payment of a particular amount by the defendant as a condition of the stay. 2 UNREPORTED JUDGMENTS I indicated my provisional view to the parties during the course of the hearing of this matter and stood it down in the list to enable them to discuss their assessment of an appropriate amount to be ordered. The matter has now been mentioned again. I am informed that counsel have not been able to agree upon the appropriate amount. Therefore I must deal with the position upon the basis of the evidence which is before the court and according to proper principles. The plaintiff has a judgment. The grounds which are urged against the judgment are grounds which may have substance. The first ground is at least an arguable ground. The plaintiff has filed affidavits by a Mr Mealing and by a Mr Hayward directed, as I understand it, to suggesting that the ground has less substance than might originally appear, or no substance, but I am prepared to act upon the basis that the first ground of appeal to which I have referred is arguable and, therefore, it is proper to deal with the present matter upon that basis. However, I have no evidence at all as to what the nature and content, that is, the substantial nature and content, of the plaintiff's claim was. I have little more than the evidence in the affidavits before the court that the plaintiff claimed an injury to his back during the course of his employment and subsequent aggravation in relation to it. It is difficult in these circumstances to come to any conclusion as to what an appropriate term for the grant of a stay should be. When the matter was mentioned before the court again, I invited counsel, if they so desired, to place before the court evidence which would enable the court to fix some amount to be paid as a term of a stay. Counsel were not able to accept that invitation. The position then is that I am asked to grant a stay but without any evidence on which to assess the term which should be imposed upon the stay. I say no evidence. I have in mind that his Honour McInerney J saw fit to impose a term as to the $100,000 payment. Payment of that amount was not made or enforced, notwithstanding that: it was a condition of the initial stay. As I have said, I do not have a copy of his Honour's reasons and I do not know or what basis his Honour fixed that amount. I therefore do not think I should accept the fact that his Honour fixed that amount as being evidence in the present matter enabling me to fix an appropriate amount. I am, therefore, faced with the situation that I am asked to grant a stay but I have no evidence upon which to assess the term which should be imposed in relation to it. I would not be disposed to stay execution without imposing some term as to payment. Even on a retrial, the plaintiff will obtain a verdict and judgment. I am not able to determine what it is apt to be. It may be a grave injustice to him if a stay is granted and no particular payment is made. When this appeal will come on for hearing is not clear. It will no doubt be some months before the matter will be in a position to be heard and the court will be able to hear it. These being the circumstances and as I am not able to assess the amount which should be imposed as the term, I do not think that a stay of execution should be granted. In the circumstances, therefore, I dismiss the application with costs.