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. However, counsel for the plaintiff appearing before me indicates that there would be such difficulty. But he has urged that his client is in need of money and that it is appropriate not to grant a stay or a complete stay. The matter comes before the court, in my opinion, in a less than satisfactory way. The basic ground urged for refusing a stay (which would in practice, although not in law, be expected to be granted where liability is in issue) is that the appeal raises no substantial or arguable ground, that is no ground likely to be successful on the ultimate hearing of the appeal. I say parenthetically that one might expect a stay to be granted where liability is in issue. I do not mean by this to indicate that there is any rule of law to this effect: the position is as has been set out in the practice of this Court and in the cases. In order to determine the matter I have attempted to determine whether there was a likelihood of sufficient dimensions of the appeal succeeding to warrant the grant of a stay of execution upon the judgment. In the course of doing this I have 2 UNREPORTED JUDGMENTS been referred to passages from the summing-up, some passages from the judgment of the judge on a refusal of the amendment and some miscellaneous passages from the evidence. When I pressed for counsel to refer me to other material, counsel were not, for reasons that they suggested were adequate, able to do so. They were not able to take me to the full evidence on the matters in question. This is a matter which is of some significance for the plaintiff. The plaintiff does need money because of the injuries caused by the defendants' negligence. On the other hand it is conceded that there would be difficulty recovering moneys from him if the appeal was upheld. And the material necessary to enable me to decide whether the appeal is apt to be upheld is not before me in satisfactory form. I have put these matters to counsel. In the end counsel for the plaintiff and counsel for the company both asked that the matter be stood over so that the evidence can be put in the proper form or so that such matters can be arranged between the parties. In the circumstances, I am of opinion the proper course to be taken is that the matter be stood over to enable it to be put in proper form. If there is some basis on which it is to be contended that the plaintiff needs to have the sum awarded to him, evidence of it should be put before the court. If it is to be argued that there is no arguable case that there was no negligence, the material should be put on affidavit or otherwise presented to the court, so that the court may reach a final determination. In the circumstances, I think the court stand this matter over so that counsel can put matters in proper form and so that counsel can be in a position to argue the matter. The matter can be heard before another judge and the costs of today will be reserved for the judge hearing the matter.