BURNELL v SMITH [1993] NSWCA 43

BURNELL v SMITH

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY JA 15 February 1993

[1993] NSWCA 43

Mahoney JA. In this matter the application is for a stay of an order made by a Judge of the Compensation Court on 1 December 1992, pending the determination of an appeal which has been lodged. The order provided inter alia for periodical payments of $200 per week and lump sums of $16,000 and $14,000 together with the usual orders for interest and for medical, hospital and rehabilitation expenses under s 60 of the Compensation Act 1987.

The application is for a stay in respect of the two lump sums. It is conceded before the court that no stay is sought in respect of the other matters.

The notice of appeal, insofar as it relates to these lump sums, relates to them only in respect of paragraph 4 which provides:

There is no evidence to support the finding of his Honour that the applicant suffered between 20-25% permanent loss of use of his right arm below the elbow.

There is before me nothing to indicate that the appeal on that ground is likely to, or has a reasonable prospect of,success or otherwise meets the usual requirements in this regard. I do not have the judgment, nor do I have the terms of the evidence. In the circumstances, I do not think that the ground has been laid for a stay of this kind.

I do not mean by this to indicate that, on applications for stay of orders, unnecessary costs should be incurred or papers prepared upon a detailed basis. The parties are expected to take a practical view of applications of this kind and to know generally what the attitude of the court will be in these matters. However, in complete absence of evidence to support the application, I do not think I should make the order sought.

Application has now been made for adjournment in order to obtain a copy of the judgment and provide such other evidence — hopefully structural rather than detailed — to support the application. I think the application should be granted. Prejudice is not suggested. I will stand the matter over for two weeks. The applicant is to pay the costs of the application today.