BALTIC SHIPPING COMPANY v MERCHANT AND ORS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY JA 23 July 1993, 23 July 1993 [1993] NSWCA 20 Mahoney JA On 5 July 1993 this Court made, relevantly, three orders: that leave be granted to Baltic Shipping Company to appeal from the judgment and orders of Carruthers J in the proceedings; that a stay of execution be available on the terms that were then ordered; and that each party have liberty to apply to the Court for further or other relief upon one day's notice to the other. On Wednesday 21 July counsel for, as I understand it, the plaintiffs, by telephone indicated that it was desired to apply to the Court for, as I understood it, two orders, namely, that the leave to appeal granted be rescinded and that the order for stay be set aside. In the ordinary course of events the Court deals with applications of this kind on Mondays and counsel was informed that the application would be listed for Monday next, 26 July. However, it was indicated to the Court officials that it was desired that the applications be heard not on Monday, but today, Friday 23 July. If the Court were required to deal with the application that was made, it would be necessary or, at least, appropriate that a court of three judges be assembled to hear the matter: Supreme Court Act 1970, s46. A court of three judges would not ordinarily be available on a Friday or, in particular, today, to deal with such an application. The Court, in the proper arrangement of its business, has arranged that the three judges would not ordinarily be available today and those judges would be available only if special arrangements were made. However, if the applications were of sufficient and real urgency the Court would, of course, endeavour to arrange its affairs so as to deal with the applications today. Accordingly, the parties were informed that if it was desired to press the Court to deal with the matters by a special court today, evidence should be filed to indicate the nature and extent of the urgency and the grounds of it. On Wednesday afternoon last a notice of motion was filed, supported by affidavit. The affidavit is that of Mr Withnell of 21 July 1993. The only relevant portion of the affidavit, as far as urgency is concerned, is para6 in which the deponent seeks orders in the notice of motion: "\.. aS a matter of urgency on the grounds that many of the Opponents are elderly and in ill health, and because the Orders sought will have an effect on future passenger claims, 4 of which are listed for hearing in Sydney in the week of 26 July 1993, 14 of which are listed for the taking of evidence by Carruthers J as an Examiner in Melbourne in the week of 16 August 1993 and 10 of which are listed for the taking of evidence in Adelaide in the week of 23 August 1993." No reason appears, in my opinion, why the Court should be specially convened to deal with the application in the notice of motion today rather than on Monday next. The affidavit, insofar as it refers to urgency, refers to a situation which has existed for a long time. Insofar as it refers to the hearing of evidence in other matters, I am not convinced that Carruthers J would see what has happened in the present case as affecting what he proposes to do in those cases. I do not, of 2 UNREPORTED JUDGMENTS course, purport to affect what he does in his discretion in those matters. But I would see no reason why anything that is done in the present matter should affect what he does in those matters. The parties were, therefore, informed that, in the circumstances, the matter would be heard on Monday. On Thursday afternoon a telephone message was passed to my chambers that counsel desired to seek the hearing of the applications on Friday. I therefore arranged the applications to be listed before me today, Friday, in order to consider whether there was sufficient in the applications to warrant, as I have said, the convening of a special Court today rather than to allow the matters to be dealt with on Monday. So far as the leave to appeal is concerned, that order was made by the Court on 5 July following proper consideration of the relevant considerations. Nothing whatsoever has been shown to establish any urgency in dealing with an application to rescind that leave. No reason appears, on the evidence before the Court, other than the suggestion to which I have referred in relation to the order for stay. I see nothing in that which would warrant the urgent hearing today of an application to rescind the application for leave to appeal and the convening of a special Court appropriate within the contemplation of s46(3) of the Supreme Court Act for the purpose. Insofar as the application relates to the grant of a stay, the interpretation of the order made on 5 July is, of course, a matter for the Court in due course. But the stay granted was granted in terms such that the stay operated: "upon Baltic Shipping Company paying into Court or providing to the Opponents an irrevocable bond with an Australian bank guaranteeing the payment of the sum of $824,291." I am informed by Mr Street this morning that some $15,000 has now been paid into Court but no more. It was not indicated when any other moneys would be paid in. For the purpose of this application I would interpret the order for stay as operating only upon the payment of the total amount. Unless and until that amount is paid into Court, the stay does not operate. I can see, therefore, prima facie, no reason why any order should be made varying the stay. I cannot see the point of the application which is listed before the Court on Monday next, as far as the stay is concerned. The parties are, of course, entitled to press any application they see fit and if they desire to press the matter further, then they may do so. However, as I have said, upon the basis that the stay does not operate and that it is open to the plaintiffs to execute upon the judgment already given, I see no urgency sufficient to bring the matter before the Court today. I have detailed the history of this matter so that it will be on record and will not be misunderstood either by the parties in this matter or by Carruthers J should application be made to him in relation to the other matters referred to. When the matter was listed this morning Mr Street, for the company, then indicated that the application made by him was for an adjournment of the matter listed on Monday upon the basis that he had been counsel for the company in the matter previously, that because of other engagements he would be out of Sydney until 2 August next and that it would be a prejudice to the company if other counsel had to be brought into the matter at this late stage. That is the only application now made. Mr Withnell, I think, did not press for any hearing of his motion today. URJ BALTIC SHIPPING COMPANY v MERCHANT AND ORS (Mahoney JA) 3 The application for adjournment was opposed. The application appears, and I say this with no disrespect to the parties involved, to be based upon the proposition that it was necessary to apply to have the stay removed and that if the stay were removed, the leave to appeal would be apt to be rescinded. It was desired that this pressure be brought upon the company so as to ensure the early payment into Court of the amount referred to in the orders of 5 July 1993. It is sufficient to say that I think the approach to the order for stay is mistaken. For the reasons to which I have referred the order does not take effect unless and until the payment is made into Court and, for the purposes of this application, I act upon that construction of it. In these circumstances, I would see no basis for an application to set aside leave to appeal. The leave to appeal was given upon the basis, presumably, that this Court thought that there was a sufficiently arguable case and that leave to appeal should be granted. I would not, upon the material that is before me, see anything to alter my view in relation to that matter. I was one of the judges who joined in the grant of leave to appeal and nothing has been urged to suggest that the Court was wrong in what it did. Insofar as anything arises in relation to the order for stay, I would not see anything in that which would warrant the alteration of the Court's order for leave to appeal. I would not see anything warranting a change in it. It may be that the parties are entitled, by bringing applications of this kind, to bring legitimate pressure upon other parties to, for example as in this case, pay moneys into Court. I offer no criticism in relation to that. However, for myself, I cannot see any substance in the application listed on Monday, at least such substance as would warrant that it be forced on on Monday. Mr Withnell, when asked, did not claim that there is an appropriate reason to the contrary. He did not suggest that, apart from the matters to which I have referred, there was any prejudice in that regard. In all of the circumstances, I think the appropriate order to be made is that the application on the motion filed on 21 July 1993 by Messrs Dunhill Madden Butler on behalf of the parties there referred to be stood over until 9 August 1993. The costs of today are to be borne by the company. If the matter is to be pursued, it can be pursued on that date. If the parties determine that, in the circumstances, it is not necessary to pursue it, I would invite them, as a matter of courtesy, to so indicate to the Court at an early stage.