CAMPBELL EARTHMOVING AND ENGINEERING (ORANGE) PTY LTD v GRIFFITH AND ANOR [1992] NSWCA 34

CAMPBELL EARTHMOVING AND ENGINEERING (ORANGE) PTY LTD v GRIFFITH AND ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY JA 17 February 1992

[1992] NSWCA 34

Mahoney JA This is an application for a stay of execution upon a judgment given following a jury trial presided over by his Honour Mr Justice Sharpe.

The trial judge granted a stay for a period which has now expired. The judgment in question is, as I am informed by counsel, a large one in the order of $600,000 or thereabouts.

The plaintiff's claim was a claim for injury during his fighting of a bushfire. I am told that the substance of the negligence alleged is that there was not a knapsack spray in the vicinity of the area so that the plaintiff could use it.

The notice of appeal which has been filed by Campbell Earthmoving and Engineering (Orange) Pty Ltd, one of the defendants, raises inter alia the issue of liability of the defendants. Three grounds have been alleged in relation to that. The first is that his Honour erred in law in failing to allow the appellant to amend its defence during the trial; the second, that his Honour should not have taken contributory negligence from the jury; the third, that he erred in law in the summing-up set out in ground 6 of this notice of appeal.

A notice of cross-appeal is proposed. It has apparently been filed but as far as the parties can tell it has been filed and not served. A copy is before the court.

The basis on which the application is made is set forth in two affidavits. The affidavit of Darren Paul Kelly of 23 January 1992 seems to take the matter no further than to suggest that the belief of the deponent is that if the appellant is required to pay the amount of the judgment, then it will be faced with substantial difficulty in recovering such sum if it is successful in the appeal. There is an affidavit of Gregory Lindsay Howlett dated 10 February 1992 in which the deponent also expressed a similar belief. Neither of the deponents gave any detail as to why there is such difficulty; there is in substance no evidence to suggest why there would be difficulty in recovering the amount.