COSMARNAN CONCRETE PTY LTD v ZUVELA [1994] NSWCA 65

COSMARNAN CONCRETE PTY LTD v ZUVELA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY JA 14 November 1994

[1994] NSWCA 65

Handley JA In this matter the appellant, the defendant in the proceedings below, has moved for a stay of execution on the judgment pending the hearing of the appeal, the plaintiff being an injured worker. The practice of the court is generally, in such circumstances, to stay execution on judgments of this size where liability is in issue on the appeal.

Mr McIntyre of counsel for the claimant/appellant has offered an undertaking to the court subject to ultimate accounting from the verdict if the appeal fails that payments of weekly compensation under the Workers' Compensation Act will continue pending the hearing of the appeal. The court accepts that undertaking and on that basis grants the stay of execution sought.

Mr Barry for the worker seeks Category C Expedition. The accident happened in 1986. The proceedings were commenced in 1990. There was an arbitration in 1993 and the action did not come on for trial until 1994, eight years after the accident. It is a proper case for Category C Expedition and I so order.

I have informed counsel that the effect of Category C Expedition in the first few months of 1995 is unclear at this stage but it will still be a substantial benefit to the respondent to have Category C Expedition which I have ordered. The costs of the cross-motions are to be costs in the appeal.

Orders accordingly.