NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v ROBERTSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P 19 December 1994, 19 December 1994 [1994] NSWCA 227 PRACTICE AND PROCEDURE — Court of Appeal — stay of execution on judgment under appeal — protection of utility of appeal — real issue in appeal concerning liability — legal onus on claimant — forensic onus on opponent to show no risk of recoupment — execution of judgment stayed. PRACTICE AND PROCEDURE — Court of Appeal — stay of execution of judgment under appeal — disputed judgment in favour of plaintiff in claim of negligence — primary judge (Leslie AJ) finds apportionment for contributory negligence 50% — awards judgment of $101,107 — provides stay of execution upon payment of 50% of judgment — defendant appeals on liability and damages — contends that plaintiffs recovery is seriously in doubt — requests stay to protect utility of appeal — held: (Kirby P): (1) In providing the stay the Court of Appeal would (a) require the applicant to establish its entitlement to a stay; (b) respect the entitlement of the successful party, unless stayed, to the fruits of the judgment; (c) respect the assessment of the primary judge; (d) take into account the principles restraining disturbance of apportionments for contributory negligence. AV Jennings Construction Pty Ltd v Maumill (1956) 30 ALJ 100 (HC) referred to; (2) But as a serious issue in the appeal had been shown and as recovery of sums, once paid, might be difficult, a stay should be provided but with expedition of the hearing of the appeal. Observations by Kirby P on the advantageous position of the judgment creditor to establish any lack of risk to the judgment moneys if paid over in advance of determination of the appeal. Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 (CA) applied. ORDERS 1. Stay execution upon the orders of Leslie AJ of 12 December 1994, until the hearing and determination of the appeal in this case or until any further or other order of the Court or of a Judge of Appeal; 2. Order expedition of the hearing of the appeal, Category B, to the intent that the appeal will be heard in the first two months of the new Term in 1995; 3. Order that the costs of the motion be costs in the appeal; 4. Order written submissions; 5. Dispense with the Rules of Court relating to appeal books to the intent that the claimant, the appellant in the appeal, will prepare a compilation of all relevant documents with index so that the appeal may proceed on the expedited date; and 6. Order that the claimant pay the costs of the opponent, of and incidental to the proceedings in the Court on 14 December 1994. Kirby J Before the Court, in Vacation, is a disputed application concerning the conditions of a stay of execution of a judgment entered by Leslie AJ. 2 UNREPORTED JUDGMENTS A CONTENTIOUS CLAIM FOR DAMAGES FOR NEGLIGENT DRIVING On 5 December 1995, with brief reasons, his Honour found a verdict and entered judgment in the sum of $101,107 in favour of the opponent, Mrs Tracey Robertson. The judgment was entered against the New South Wales Insurance Ministerial Corporation (the Corporation). The Corporation was held liable for negligence on the part of an insured driver, Mr T Vassailes, in respect of a motor vehicle incident which took place in Bennett Street, Bondi, near the intersection of that street with King Street. The incident occurred when Ms Robertson, driving a motor vehicle, came into collision with a motor vehicle driven by Mr Vassailes. The way in which the incident arose appears in a traffic collision report (P4). This report is annexed to an affidavit of the claimant's solicitor. It appears that Ms Robertson was proceeding in a direction opposite to that in which Mr Vassailes was proceeding in Bennett street. She then moved into or towards King Street on her left. She then emerged from that direction and hit Mr Vassailes' vehicle amidships, causing the collision out of which her injuries arose and for which she sued the Corporation. The Corporation, representing Mr Vassailes, contends that he was in no way responsible for the happening or the collision He says that the entire blame rests upon Ms Robertson. This was upon the footing that she should not have attempted a U-turn without safety and should not have cut across the line of traffic in which she (formerly) and Mr Vassailes were respectively proceeding in opposite directions, unless she could do so with safety. This contention was not persuasive for Leslie AJ. He found that Ms Robertson (whom he described as a "25 year old thespian"), was partly to blame. He determined that she was 50 per cent responsible for the accident. But Mr Vassailes (and hence the Corporation) was also responsible. Each driver, in his Honour's view, was equally to blame for the collision. The Corporation has now appealed to this Court. It has filed a notice of appeal which has been exhibited. The notice was criticised by counsel for Ms Robertson as being tendentious and argumentative. This is probably correct. However, the notice makes it clear enough that the issues which will be addressed in the appeal will be: "(1) that Ms Robertson was entirely responsible for the accident and her own injuries and hence should recover no damages; (2) that the apportionment of 50 per cent for contributory negligence was wrong and that if there was negligence on the part of Mr Vassailes, Ms Robertson was 75 per cent responsible for the accident; and (3) that the amount of damages found by his Honour in favour of Ms Robertson for general damages was excessive. " In the nature of an application of this kind it is not possible for me to predict the final outcome of the proceedings. THE ADVANTAGES OF THE PRIMARY JUDGE The Court has been invited to substitute its view concerning the terms of the stay. In this sense I am not reviewing the decision of Leslie AJ. I am exercising, in substitution, the original jurisdiction of the Court of Appeal to protect the utility of its own process. However, in performing the function of preserving the utility of the proceeding in this Court, I naturally have to take into account the determination of the conditions of the stay found by Leslie AJ. This is because, in the nature of things, his Honour had a far greater knowledge of the facts of the case than I do, having heard the evidence in full. WHEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v ROBERTSON (Kirb$ J) Some of the evidence at the trial has been placed before me. However, I have not had time to examine it all. I have merely looked at some parts of it to which my attention has been directed. Counsel for the Corporation has assured me that the second of the contentions set out above (increase in the apportionment for contributory negligence) is a distinctly secondary argument. The primary argument which will be advanced when the appeal is heard is that there is no liability on the part of Mr Vassailes for which the Corporation is responsible. Ms Robertson should walk away from the Court, so it was said, with no damages and with a liability for costs. At this stage it is not possible for me to predict whether this argument can be made good. In the short facts which I have recounted it cannot be entirely put out of mind. A recent case bearing some similarities resulted in a confirmation of a judgment in favour of the defendant when it was found that the sole real cause of the mishap was the negligence of the injured motorist. See Tran v Government Insurance Office of New South Wales, Court of Appeal (NSW), unreported, 25 November 1994, unreported [1995] NSWJB 3. That line of reasoning might apply in this case, although each case depends on its own facts. THE PROPER APPROACH TO STAY APPLICATIONS I was reminded of the principles, often repeated by the High Court of Australia and by this Court, that a court will interfere only with extreme reluctance and only in very clear cases in the apportionment of damages for contributory negligence. See for example AV Jennings Construction Pty Ltd v Maurmill (1956) 30 ALJR 100 (HC); Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 (HC). I am very conscious of those authorities. Generally, they are stated, as they were in Jennings, in cases where the Court nonetheless went on to interfere with the apportionment determined by the primary judge. Even taking those principles into account they do not meet the primary contention of the claimant. This is that there is no liability at all and that Ms Robertson should recover nothing. Of course, it is necessary in stay applications to keep in mind the principle that the obligation of establishing a reason for the stay falls upon the party who applies for it. Until the appeal succeeds, and results in the setting aside of the judgment, a party is prima facie entitled to the amount of that judgment. However, as this Court has said in many cases, including Cambridge Credit Corporation Ltd (Receivers Apptd) v Alexander and Ors (1985) 2 NSWLR 685 (CA), some of the old principles which were expressed in respect of stays were stated before the legal right to appeal (which was essentially a late 19th century development) had become well established. In contemporary circumstances the right to appeal, conferred by legislation enacted by Parliament, is one which is perfectly regular. The busy activities of this Court demonstrate that fact as nothing else will. The experience of the Court has taught that, if moneys are paid, at least to persons of ordinary means, very great practical difficulties may arise in recouping the money when a judgment is reversed and it is discovered, following the determination of the appeal, that the moneys were wrongly paid and must be recovered. THE FORENSIC EXPECTATION THAT A JUDGMENT CREDITOR WILL SHOW MEANS 4 UNREPORTED JUDGMENTS In the present case it is true, as counsel for the opponent has said, that the Court has not put before the Court detailed evidence concerning the means of the opponent and the likelihood of her being capable of refunding half of the judgment if it is paid and if, subsequently, the Corporation succeeds in the appeal. Whilst the Corporation bears the onus, it is not really in a position in a case such as the present, readily to establish the means of the opponent. It is the opponent who best knows her own means. She could quite easily establish, if she chose to do so, that recoupment to the Corporation of the moneys following success of the appeal, would be of no difficulty to her. To say this is not to countenance a reversal of the onus of proof. It is simply a recognition of the forensic fact that detailed awareness of her financial means is best known to the opponent and not to the Corporation. It is by no means unusual to stay applications where a party wishes to enforce, and retain the benefits of, the judgment, that such party establishes by affidavit substantial assets, regular income and other reasons which make the concerns of the Court to protect the utility of the appellate process such as can be met in the particular case by leaving the judgment to take effect. Looking at this motion as best I can, and taking into account what seems to me to be the arguable case in the appeal on the issue of liability, it does appear to me that the provision which Leslie AJ made as a term of the stay was perhaps unduly pessimistic of the prospects of the appeal's succeeding. I toyed with the prospect of simply substituting for the order which Leslie AJ made, an order of this Court determining that part of the judgment should be paid, say $20,000 or $25,000 as a condition of the stay. However, on balance, I think it better that the Court should approach the appeal without the Corporation being at any risk that the appeal might succeed in its entirety and that the Corporation might then face the difficulty of recouping whatever moneys have been paid. As counsel for the Corporation said, at that time the opponent would have the additional burden of substantial costs, even with the benefit of a certificate under the Suitors' Fund Act 1951. This, it seems to me, makes it even the more undesirable that moneys should be paid pending the determination by the Court of what appears to me to be an arguable case on appeal. CONCLUSION: PROVIDE STAY AND EXPEDITE HEARING Accordingly, I would provide the stay sought. I would not require any payment to be made pending the hearing of the appeal. This, however, presents a risk of injustice to the opponent. This will be so even when it is remembered that the opponent will have the benefit ex post of the provisions of the Supreme Court Act 1970 relating to interest on a judgment. The only way in which, in part, I can repair that injustice is by determining that some measure of expedition should be given to the hearing of the appeal. The oral argument of the appeal should not take very long. I would expect that it would only take a couple of hours. I consider that there should be an expedition order. The orders which I therefore make are: 1. Stay execution upon the orders of Leslie AJ of 12 December 1994, until the hearing and determination of the appeal in this case or until any further or other order of the Court or of a Judge of Appeal; 2. Order expedition of the hearing of the appeal, category B, to the intent that the appeal will be heard in the first two months of the new Term in 1995; 3. Order that the costs of the motion be costs in the appeal; 4. Order written submissions; and WHEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v ROBERTSON (Kirby J) 5. Dispense with the Rules of Court relating to appeal books to the intent that the claimant, the appellant in the appeal, will prepare a compilation of all relevant documents with index so that the appeal may proceed on the expedited date. They are the orders of the Court. (Ms Ryan made application for costs incurred on Wednesday 14 December). I add to the orders: 6. Order that the claimant pay the costs of the opponent, of and incidental to the proceedings in the Court on 14 December 1994. 1. ww Stay execution upon the orders of Leslie AJ of 12 December 1994, until the hearing and determination of the appeal in this case or until any further or other order of the Court or of a Judge of Appeal; Order expedition of the hearing of the appeal, Category B, to the intent that the appeal will be heard in the first two months of the new Term in 1995; Order that the costs of the motion be costs in the appeal; Order written submissions; Dispense with the Rules of Court relating to appeal books to the intent that the claimant, the appellant in the appeal, will prepare a compilation of all relevant documents with index so that the appeal may proceed on the expedited date; and Order that the claimant pay the costs of the opponent, of and incidental to the proceedings in the Court on 14 December 1994. Counsel for the Claimant: CR Hoeben Instructed by: GM Meadows Counsel for the Opponent: I Ryan Instructed by: Heenan and Co