HOWELL v HAINES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE J 9 August 1993, 9 August 1993 [1993] NSWCA 138 Clarke J This is an application for a stay of execution on a judgment given byDunford J on 22 March 1993 in the sum of $78,625 plus costs. The action in which the judgment was given was an action for libel arising out of two publications of the claimant. It was said by the opponent that the publications conveyed an imputation that he had accepted a bribe whilst an alderman in his local council. The seriousness of the allegations made needed to be viewed against the context that the opponent had, at the relevant time, secured pre-selection for a State seat in the Parliament of New South Wales. As it transpired after the allegations were made his pre-selection was not maintained and the person who later won pre-selection won the seat. His Honour found in the claimant's favour on the first publication on the defence of comment. However, his Honour found against the claimant on the second publication and in addition found that the opponent had been actuated by malice. I do not propose to go to the detail of either the evidence led at the trial or the judgment, but it is, I think, of some importance to note that the allegations were made in the context that the claimant was a member of the left faction of the Australian Labour Party at the time and the opponent was, or had been, a member of the right faction. It was in this context that his Honour said that he was satisfied that the defendant was motivated by malice, in the sense of an improper purpose, namely, to hurt the right wing in general and the plaintiff in particular and to advance the political fortunes of the left wing, including possibly the defendant himself. During the hearing of this application the claimant has attacked that conclusion and, although I have not examined the evidence and the judgment closely, it may be that he has reasonable grounds upon which to base that attack. However, the real strength of his application lies in his impecuniosity. He is and was at the relevant time a practising solicitor but he is one who has earned a very small income in the last six months and has told the Court that he has no assets at all. He says that if a stay is not granted, and the opponent is able to proceed with bankruptcy proceedings which he has initiated, he will be frustrated in his endeavour to appeal. There is some basis on which that might be so. It cannot, however, be said as a matter of certainty that the bankruptcy proceedings will be permitted to continue. The bankruptcy judge has a discretion to extend the time for compliance with a bankruptcy notice and there is presently an application of that nature pending before the judge. In addition, the claimant himself may reach the conclusion that it is pointless to proceed and expend further moneys on the bankruptcy proceedings. 2 UNREPORTED JUDGMENTS However, there is a real chance that unless I grant a stay, the claimant may not be able to press his appeal and that is a very important consideration. Somewhat less importantly, the claimant seeks to balance his financial position against that of the opponent. In this context it should be recognised that the opponent is, prima facie, entitled to the benefits of his judgment and a stay is not granted simply on a balancing of the assets of the competing parties. However, it is true to say that the opponent is in a better financial position than the claimant, although it could not be said that he was in any sense even a moderately wealthy man. The combined total of his assets is less than $400,000 which includes the home in which he lives and his income which comprises his mayoral and council allowances of $24,000 per annum, a War disability pension of $183 per fortnight and rental from a property of $700 per month. The repayments on that property are presently $1095 per month. The claimant also asserts that a stay should be more readily granted because this is not a case in which someone has been deprived of his assets by fraud but is simply one in which the successful party has an award of damages for loss of reputation. The argument is that it is of the essence of defamation that vindication be effected and that that result is effected when judgment is given for an injured person. Here, the claimant says the opponent has been vindicated insofar as he has judgment in his favour and it is hardly to the point that he has been kept out of moneys. I am unable to accept the thrust of this submission. In my opinion, the awarding of damages for the very serious libel that was involved in this case is very much a party of the vindication of the plaintiff and his reputation and that vindication could at best be described as a provisional one while the appeal is on foot. Tam well aware of the fact that the Court places great importance on the right of a party to appeal an adverse decision and that the court takes careful account of the possibility that refusal of a stay might frustrate that right of appeal. However, one has to carry out a balancing exercise in order to secure the interests of justice and one factor which looms very importantly in this case is that the opponent has already spent, or become liable to, in excess of $50,000 in prosecuting his claim and he has now been required by the appeal, and the need which the claimant himself does not have, to pay for legal representation at additional cost. lam told that it is anticipated that the costs for the opponent on the appeal will be $12,000 and bearing in mind that the appeal will probably take two days, I do not think that is unreasonable. Hence, the opponent is required to expose himself to further liability in the sum of $12,000 or so, with the knowledge that even if he is successful, the person who has put him to this expense will be in no position to pay him any of the moneys he has been awarded or to reimburse him for the costs expended. The claimant sought to answer that point by saying: "Well, I might be in a better position when the appeal is decided", but in my opinion that is hardly an answer. The reality is, that whilst the appeal remains and no security is offered for the opponent's costs of the appeal, he will be put to a great deal of extra expense, with the almost certain knowledge that at the end of the day he will receive next to nothing from the claimant if he is successful. URJ HOWELL v HAINES (Clarke J) 3 Having regard to that factor and in carrying out the balancing exercise, I was at one stage disposed to refuse the application for a stay but counsel for the opponent said his preferred order was the granting of a stay upon terms that the opponent pay within twenty-eight days a sum to cover counsel's fees and proper expenses incurred to date, which sum would be about $14,500 or, alternatively, the sum of $12,000 as security for the opponent's costs on the appeal. In these circumstances, I propose to make the following orders: I grant a stay for twenty-eight days and thereafter only if, in the period of twenty eight days, the opponent has provided security in the sum of $12,000. To make it perfectly plain, the stay will continue from today's date until 6 September at 5pm and continue thereafter only if the security has been provided. The claimant also seeks an order for expedition. In this regard he submits that the case is one of public importance and the question raised, that is, whether a serving alderman took a bribe, is also one of public importance. He also points to the hardship imposed upon him asserting that the appeal is a continuing drain on his ability to earn income. There is no doubt the question whether a serving alderman took a bribe is a matter of public importance, but the factual dispute surrounding that allegation has been determined and the claimant bears a very heavy onus in seeking to reverse that factual finding. I say this notwithstanding the arguments that have been put to the effect that some of his Honour's findings were glaringly improbable. It is convenient and easy for a court to grant expedition in a case in which there is a special application of the time in question here but, in my opinion, to accede to that course in a case in which there is no compelling argument for expedition is to act in a grossly unfair manner to those litigants who are awaiting a hearing of their appeal in this Court. For my part, I do not think the reasons advanced to support the application for expedition are sufficient to lift this case above all those other cases awaiting hearing. Accordingly, I would refuse the application for expedition. The orders I make are as follows: (1) Expedition refused; (2) A stay is granted until 6 September 1993. That stay will be continued thereafter until the disposition of the appeal or further order only if the opponent has lodged security in the sum of $12,000 in the period before 6 September. (Discussion as to costs) The parties have asked me to make the costs of the application costs in the appeal and I will accede to that request. (3) Costs of the motion to be costs in the appeal. I return the Court pleadings and evidence which was handed up as an exhibit.