DILLON v BALTIC SHIPPING CO [No 2]; BALTIC SHIPPING COMPANY v MERCHANT; BISHOP v BALTIC SHIPPING CO ('THE MIKHAIL LERMONTOV)') [No 2] SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBy P, MAHONEY and CLARKE JJA 5 July 1993 [1993] NSWCA 83 PRACTICE and PROCEDURE — Court of Appeal — stay if execution of judgment — orders in grouped proceedings — claims by multiple passengers following damages and losses arising from sinking of the vessel "Mikhail Lermontov" — determination of individual claims in form interlocutory but in substance final in each case — summons for leave to appeal — leave to appeal granted in each case — appeals expedited and grouped — conditions of stay of execution of judgment — evidence of financial difficulties of shipping company, registered in Russia — held: Stay should be granted upon deposit in cash or provision of an irrevocable with an Australian bank guaranteeing payment of the amount of the judgment debt plus allowance for part of costs of trial and costs of appeal. Dillon v Baltic Shipping Co ("The Mikhail Lermontov") (1989) 21 NSWLR 614 (SC) referred to. Kirby P This summons concerns orders which are in form interlocutory. They arise out of a series of individual claims which Carruthers J has grouped together in a procedure sensibly permitted by the Admiralty Rules 1952, R14. They are all nominally part of the one proceeding. Thus the determination of the entitlement of particular persons is interlocutory to the completion of the entire proceedings. See Dillon v Baltic Shipping Co ("The Mikhail Lermontov") (1989) 21 NSWLR 614 (SC) 670. However, in the particular cases the orders made effectively dispose of t he individual claims. The Court is, therefore, of the view that, upon appropriate terms, leave to appeal should be granted so that the orders that have been made can be reviewed in this Court. For that purpose the Court enlarged the summons to permit the claimant, Baltic Shipping Company, to challenge certain orders which Carruthers J made on 25 June 1993. The question arises as to the appropriate orders which should be made as to the conditions of the grant of leave to appeal and the response to two motions which have been placed before the Court respectively by Baltic Shipping Company and t he various claimants. Those claimants were passengers on the Mikhail Lermontov. Their claims have been determined by Carruthers J. The financial position of Baltic Shipping Co has been the subject of evidence which has been placed before the Court in the affidavits of the respective solicitors for the parties. For the company it is pointed out that it is a very large ship owner with a very significant list of vessels still trading and that it has paid such verdicts as have been finally determined and agreed. However, in Mr Withnell's affidavit information has been placed before the Court which (putting it no higher) raises the spectre of financial difficulty which is, I suppose, to be expected in the current political and economic circumstances of Russia, the country of origin and listing of the lost vessel. 2 UNREPORTED JUDGMENTS It is inappropriate to say anything more about this problem except that, the company being foreign and the possibility of financial difficulty being not insubstantial, it is appropriate to make orders for security as a condition for the grant of leave. In pursuance of the motions of the passengers that should be done. It will appropriately protect the passengers in respect of the judgments which they have recovered and which will now be under challenge. The motion of the passengers suggested that the conditions of the stay should require Baltic Shipping Co to pay into court an amount constituted by the combined judgments, costs of the trial and the projected costs of the appeals. That appears to be the appropriate course. However, some dispute has been raised in relation to costs and whether provision should be made in that regard and if so in what amount. If the passengers had sought an order for security of the costs of the appeals I would have considered the case one of special circumstances. It would be appropriate to order security. Dealing with the matter on its face as a motion associated with the summons for leave to appeal and knowing that the company conceded that it was appropriate to make a payment into court (or to deposit an irrevocable bond) in respect of the judgments, the appropriate orders would seem to require such payment in or irrevocable bond in respect of the judgments and an adjusted sum in respect of the costs of the trial and of the projected costs of the appeal. The appeal is said to be likely to last one or two days in this Court. That estimate seems reasonable. The costs of the trial claimed by the passengers is estimated at $170,000. It seems appropriate to allow this regard a sum of, say, $85,000. It also seems reasonable to allow in respect of the costs of the appeal a sum of $15,000. This makes a total provision in respect of costs of $100,000. For that sum security should be provided. ORDER Accordingly, the combined judgments of the passengers being $724,291 the orders which I would propose are: 1. In the summons of Baltic Shipping Co: (a) Grant leave to the claimant, Baltic Shipping Company, to appeal from the judgment and orders of Carruthers J; (b) Stay execution from the judgments in favour of the individual passengers the subject of the grant of leave pending the hearing of the appeal or any further or other order of the Court of Appeal or of a Judge of Appeal upon Baltic Shipping Co paying into court or providing to the opponents an irrevocable bond with an Australian bank guaranteeing payment of a sum of $824,291; (c) Expedite the hearing of the appeals, category B, to the intent that the appeals will be heard in July or August 1993 upon dates to be fixed by the Registrar after hearing the parties; (d) Costs of the summons and motions to be costs in the appeal; and (e) Each party to have liberty to apply to the Court for further or other relief upon one day's notice to the other. 2. In the summons of Mr David John Bishop: Order that following the earlier decision, leave be granted to Mr David John Bishop to appeal from the judgment of Carruthers J in favour of Baltic Shipping Company; the costs of the summons for leave to be costs in the appeal by Mr Bishop. Mahoney JA I agree with the orders proposed. UWALLON v BALTIC SHIPPING CO [No 2]; BALTIC SHIPPING COMPANY v MERCHAN® BISHOP v BALTIC SHIPPING CO ('THE MIKHAIL LERMONTOV') [No 2] (Clarke JA) Clarke JA I agree. KIRBY P. The orders which I have proposed are thus the orders of the Court. 5 Counsel for Claimant (Ms Dillon): R Withnell, Instructed by: Dunhill Madden Butler Counsel for Claimant (Baltic): AW Street, Instructed by: Norton Smith Counsel for Claimant (Mr Bishop): R Withnell, Instructed by: Dunhill Madden 10 Butler Counsel for Opponent (Baltic): AW Street, Instructed by: Norton Smith Counsel for Opponents (Geoffrey Merchant and Ors): R Withnell, Instructed 45 by: Dunhill Madden Butler