GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v ALAN JAMISON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS JA 26 June 1989 [1989] NSWCA 85 Samuels JA This is an application by the Government Insurance Office of New South Wales, the defendant under s14 of the recent amendments to the Motor Vehicles Third Party Insurance Act, following a trial before Wood J in which the opponent to the motion, the plaintiff at the trial, obtained judgment in the sum of $284,100. The opponent made two claims in effect, that is to say sought to recover damages in respect of two accidents. In each of them he was, as he asserted at the time, a pillion passenger on a motor cycle ridden by a lady called Elena Garcia, who was at the time the opponent's girlfriend. The negligence alleged in respect of the first accident was Miss Garcia's loss of control of the motor cycle. In the second it was either her negligent riding or the negligence of a motor vehicle or a combination of both. In the event the opponent recovered in respect of both accidents, for the negligence of Miss Garcia in the first case and of the driver of the motor vehicle in the second. Miss Garcia was not called as a witness. There were proceedings before the trial before Carruthers J in which a number of matters were agitated, including the conduct of the opponents attorney in interviewing Miss Garcia and, I was told, in taking a statement from her. The claimant sought various orders restraining the evidentiary use which the opponent and his advisers might make of Miss Garcia and anything she had said to the opponent's attorney. The question then arose in the trial as to which side ought to have been expected to call Miss Garcia so that a direction might be obtained according to what is called the rule in Jones v Dunkel. The learned judge decided that, because it was the effect of s14 to establish the Government Insurance Office as a party in every respect Miss Garcia was not a "secondary party" but was merely a non-party witness. He ultimately came to the conclusion that the rule in Jones v Dunkel required an inference to be drawn against the Government Insurance Office. Although the notice of appeal filed does not raise the question, because it was filed before Wood J's judgment was available, it intended to take this point which, if successful, might result in a new trial. Before Wood J an application was made for a stay of proceedings. A stay was ordered on condition that the claimant should pay one-half of the verdict, namely a sum of $142,050. The notice of motion before me seeks to vary those orders (I might interpolate that stay has been extended by consent) so that a further stay should be ordered until the hearing of the appeal but on condition that the sum of $100,000 is paid instead of the larger proportion. There is also a claim for authority for the claimant to pay out of that fund sums which are by dint of s64 of the Workers Compensation Act payable to the workers compensation insurers. It is true that the opponent, as a successful party at the trial, is prima facie entitled to enjoy the 2 UNREPORTED JUDGMENTS fruits of his victory. On the other hand it seems to me that the claimant has bona fide point of appeal, which indeed may be of some complexity and of importance, so long as litigation of this kind remains with us. Hence it is the duty of the court to make some order which balances the competing rights and interests of the parties. It is clear that it is not necessary for the claimant for a stay to show exceptional circumstances but it is rather a question of doing what appears to be fair to both parties. There is no evidence before me as to the opponent's precise financial situation. I am told, however, that he is working and therefore presumably has some income. The sum of $100,000 which has in fact now been paid by the claimant to the opponent is not very different from the sum imposed by Wood J. However, out of that sum the opponent will be bound to pay some moneys which he has received on account of workers compensation and there may very well be a liability for solicitor and client costs. Nonetheless he will be left with a reasonable fund and, as I have said, he is working and earning money. The claimant, by paying a substantial sum evidently accepts the risk of failing to recover it if successful on appeal. Fortunately the delays in this court are not considerable, and if the parties press the matter on with all reasonable expedition the appeal should come on for hearing without the lapse of a great deal of time. In all the circumstances I think that a further stay should be granted. Accordingly I note that the sum of $100,000 has been paid by the claimant to the opponent, and I order a further stay of execution upon the judgment until the determination of the appeal or further order of the court. I order that the costs of the application be costs in the appeal. I note that an amended notice of motion has been handed up, and this should be re-engrossed and filed with the papers.