RADIO 2UE PTY LTD v PARKER [1992] NSWCA 195

RADIO 2UE PTY LTD v PARKER

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY JA 18 May 1992

[1992] NSWCA 195

Handley JA The claimant, the respondent in the appeal, has moved on notice of motion for an order setting aside the stay of execution on the judgments granted by Smart J on 31 August 1990.

The court has been informed that the judgments in question total approximately $200, 000 and interest will have accrued on those judgments for some twenty months since they were entered.

The prosecution of this appeal has been delayed because of the inability to get an approved transcript of the summing-up of the trial judge, and for other reasons.

The order I am proposing to make is not based upon any view as to where fault lies or does not lie in relation to this unfortunate period of delay.

The general rule in Pt51 R10 is that an appeal to this Court does not operate as a stay of execution except insofar as this Court or subject to any direction of this Court as the trial court may order. It is established that this Court, when asked to consider the question of staying execution on the judgment of the trial court, has an independent discretion which is not fettered in any way by the exercise of discretion by the trial court.

There is no evidence to suggest that the case is one where security for the verdict ought to be ordered but there is nothing to suggest that the case is one where security for the verdict should not be ordered. In these circumstances it seems to me that the provisions in the Rules should take effect. In other words, that the stay ordered by the trial judge should not be continued in the absence of proper evidence to indicate that that should be done. Neither party has put on any evidence as to the financial position of the appellant opponent.

In those circumstances the appropriate course, in my opinion, is to terminate the stay of execution ordered by Smart J with effect from Spm on Monday | June, and to stand these proceedings over to Monday | June to enable the parties to put on further evidence in support of the application for the stay to be continued and perhaps to resolve the matter in the meantime by some sensible arrangement or exchange of information.