AUSTRALIAN CONSOLIDATED PRESS LTD v BALTINOS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, PRIESTLY and MEAGHER JJA 18 September 1995, 18 September 1995 [1995] NSWCA 27 PRACTICE and PROCEDURE — Court of Appeal- application to discharge orders of a single JA — proper approach — held: Must show error of principle. PRACTICE and PROCEDURE — Court of Appeal- stay — impecuniosity of judgment creditor — preliminary estimate of the prospects of success — proper approach — held: (by maj): No error — stay refused. Alexander and Ors v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 (CA) explained and applied. APPEAL — stay — impecuniosity — prospects. DEFAMATION — public interest defence imputations as to deception and abandonment of wife — held: arguable but (by maj) were taken into account in refusing stay. PRACTICE and PROCEDURE — Court of Appeal — discharge of orders of single judge (Cole JA) refusing stay — proper approach of Court of Appeal — held: (by the Court): The approach to be adopted is by analogy with review of discretionary decisions — Court to consider whether error of principle shown or misunderstanding of essential matter. PRACTICE and PROCEDURE — Court of Appeal — application to discharge the orders of a single Judge of Appeal (Cole JA) refusing a stay — judgment in defamation action in favour of plaintiff on imputations found to be true but not within public interest defence — publisher challenges judgment — appeal point arguable — judgment in sum of $17,400 — whether error shown in the exercise of the discretion to refuse to provide stay — whether judge declined to take into account impecuniosity of party whether he failed to consider the prospects of success in the appeal — held: (Priestley JA and Meagher JA; Kirby P dissenting): (1) No error shown; (2) Discharge of the orders of Cole JA refused. Alexander and Ors v Cambridge Credit Corporation Ltd (Receivers Appointed) and Anor (1985) 2 NSWLR 685 (CA) considered and explained. APPEAL stay — discharge of order of single Judge of Appeal — held: No error shown — discharge of order refused. DEFAMATION — appeal — stay of execution of judgment — public interest defence — whether arguable — held: Point arguable but taken into account — no error — discharge of orders of Cole JA refused. Supreme Court Act 1970, s46(1). Supreme Court Rules Pt51 R26. Kirby P Ina judgment dated 28 August 1995 Cole JA, sitting as a single Judge of this Court and exercising the power of the Court under s46 of the Supreme Court Act, 1970 refused an application for a stay of execution upon a judgment 2 UNREPORTED JUDGMENTS delivered by Sully J in the Common Law Division of the Supreme Court. That judgment related to proceedings between Mr Solon Baltinos (the opponent) and Australian Consolidated Press Ltd (the claimant). His Honour entered judgment in the claimant's favour in the relatively small sum of $17,400. DEFAMATION VERDICT AND APPEAL The opponent sued the claimant in respect of imputations in the claimant's journal The Bulletin alleging that they were defamatory. Sully J found certain imputations to arise from the articles. In respect of two imputations, which are to be challenged in an appeal, Sully J found that he was not satisfied that the imputations related, in the relevant sense, to matters of public interest. The imputations concerned (1) that the plaintiff had deceived his first wife in respect of the sale of the home at Carlingford and (2) that plaintiff had evaded tax by "opening bank accounts in false names." The contention which will apparently be put before the Court on the appeal is that, in the relevant sense, the imputations did give rise to a defence of publication of a matter of public interest and that his Honour erred in holding otherwise. I regard the point as arguable, although it is not immediately attractive. It will, no doubt, take much assistance of counsel to establish the point. I make no final decision on the matter as the Court has not heard more than the most preliminary argument on the merits of the issue, as is proper in an application of this kind. The present application is one for an order pursuant to Ptl15 R26 SCR that the judgment of Cole JA, dismissing the application for a stay, be discharged. Although the application to this Court is not an appeal, it is appropriate for the Court to approach the application for discharge of the orders of a single judge of the Court in a way analogous to the approach which would be taken in an appeal from a discretionary decision. A SINGLE JUDGE REFUSES TO STAY EXECUTION OF THE JUDGMENT The judgment of Cole JA was a discretionary decision on a matter of practice. The inhibitions upon disturbance of orders following such decisions are too well known to be recited. The claimant raised two points of objection to the reasons briefly given by Cole JA on 28 August 1995. The first was that his Honour had denied the relevance of the impecuniosity of the opponent whereas it was, in fact. a highly pertinent consideration. This is what Cole JA said: "Tt is said in support of the application that the respondent is impecunious and the appellant may not if successful on appeal recover the sums which otherwise would be paid by way of damages. That may well be true but that is not in itself a reason for granting a stay particularly if, as I have been informed tom the Bar table, impecuniosity is a consequence of the alleged defamation and the subsequent litigation in that respect." I am not sure that the statement from the Bar table, if contested (as it was), should have been taken into account by his Honour in this regard. However, I suppose that the Court could infer from what was clearly a lengthy trial - said to have taken more than thirty days - that considerable costs would have been involved and much inconvenience to the opponent. What concerns me, however, is that his Honour appears to have taken the view that the difficulty in the claimant's recouping the sums, in the event that its appeal were successful, should not be treated as "a reason for granting a stay". ERROR IN THE EXERCISE OF THE STAY DISCRETION URJ AUSTRALIAN CONSOLIDATED PRESS LTD v BALTINOS (Kirby P) 3 With respect to his Honour, it is my view that the approach adopted by the Court in Alexander and Ors v Cambridge Credit Corporation Ltd (Receivers Appointed) and Anor (1985) 2 NSWLR 685, especially at 695, (CA), involved, to some extent, a new direction in the approach of this Court in respect of stays. That decision involved the clarification of the attention which should be paid to protecting appeals which would prove abortive (or the utility of which would be frustrated) in the event that the appellant succeeded and was not granted the protection of a stay of execution of the judgment under challenge. The principles expressed in Alexander are often applied by this Court for the purposes of protecting the utility of appeals. Statements which were in a lawyerly fashion repeated well into the 20th century, derived from court decisions in England in the 19th Century before statutory appeals became commonplace, are not now appropriate, at least without modification. Those statements include the oft-repeated assertion that the successful party is entitled to the "fruits of judgment" and that the judgment below is prima facie correct. These statements must now be read in the light of Alexander and keeping in mind that appeals are now common, they are often a legal right and the defence of their practical utility is a proper function of appellate courts. Therefore, with respect, I consider that an error in approach has been shown in the reasons of Cole JA. That fact alone would be sufficient to persuade me to discharge the order if I were of a view that I would reach a different conclusion. The second error of principle is said to lie in the last paragraph of his Honour's reasons where he said: "Second it is put that there are arguable grounds of appeal. Whether that be so or not is not for me to determine." As the immediately following passage of the decision in Alexander, at 695, makes plain, it is appropriate, and now ordinarily necessary, in a stay application for the Court to make "some preliminary assessment whether the appellant has an arguable case." Of necessity that assessment is brief and tentative. However, it is properly made. In fairness to the opponent, Cole JA does appear to have proceeded to conclude that, even if the ground of appeal asserted by the claimant were arguable, it was not, in his view, sufficient ground for granting a stay. However, it does appear to me, with respect, that his Honour was not applying the principle which this Court has laid down, at least for itself. The asserted principle was incorrect. It may have affected his Honour's approach. Therefore, in my view, error has been shown. My own view remains very much as stated in Alexander. The Court has a duty to protect the utility of its process. It is notorious that it is extremely difficult, where a relatively small amount is involved, for a party to recover that amount. So much was so, many years ago when I was a solicitor. It is confirmed by the solicitor for the opponent that it is still the case. Commonsense says that it is so. Whilst it might be that the claimant, put to the obligation, could recover the sum paid out to the opponent, were it to succeed in the appeal, and whilst it might be that the opponent would not wish to become bankrupt, the practical difficulty of recovering the sum is obvious. It is a difficulty which should not be imposed upon the claimant THE DUTY OF THE COURT TO PROTECT THE PRACTICAL UTILITY OF THE APPEAL The Court has been told of the fact that the opponent has experienced illness. That itself could create a difficulty in recovery. The Court has been taken to the parts of the reasons of Sully J which suggest that the opponent is not well placed 4 UNREPORTED JUDGMENTS financially. That may also create difficulties in the way of recovery. Those difficulties of recovery should not face a litigant in this Court if the Court can properly protect the litigant. The fact that Australian Consolidated Press is a very large corporation, well financed, does not mean that it comes to this Court in any way different from any other litigant. It has rights which the Court will protect just as, were the boot on the other foot, the Court would protect Mr Baltinos. In my view the course that should be followed is the one regularly followed in such cases. The judgment should be respected by requiring that the judgment sum should be paid into Court, and provision made, in consultation with the Registrar, for the judgment sum to be placed in a joint account to be managed by the solicitors for the claimant in agreement with the opponent or his solicitor. If no agreement could be reached, the Registrar would have the function of being the stake-holder. The sum should then abide the outcome of the appeal. Orders The orders which I propose are: 1. Discharge the orders of Cole JA; 2. In lieu thereof, order that execution upon the judgment of Sully J of 21 July 1995 be stayed until the judgment of- this Court, or until any further, or other, order of the Court or of a Judge of Appeal; 3. Order, as a condition of O.2, that the claimant bring into the Registry a sum equivalent to the judgment entered by Sully J; 4. Order that the Registrar hear the parties upon whether that sum should be deposited in an account to be jointly administered by the solicitors for the claimant and the opponent and, if he so decides, order that he do so; and 5. Order that the costs of the proceedings before this Court today, and the costs before Cole JA, be costs in the appeal. Priestley JA Some matters have arisen in the course of the argument on this motion on which I take a somewhat different view to that expressed by the President and which lead me to a different conclusion. One matter on which I agree, for purposes of the present motion, is that when this Court is considering an application under s46(4) of the Supreme Court Act to discharge an order given by a Judge of Appeal in exercise of the powers of the Court of Appeal, the Court will generally approach the matter by asking whether there has been some error of principle or misunderstanding of an essential matter by the single judge in exercising the discretion involved in the application. Approaching today's motion in that way means that the first inquiry for the Court is whether Cole JA made any error of principle or betrayed some misunderstanding of the situation before him which would justify this Court in saying that his exercise of discretion had miscarried. The two grounds relied upon by the claimant today were those already mentioned by the President. The first one was that Cole JA was in error in saying that the impecuniosity of the opponent was not, in itself, a reason for granting a stay. I can see no error of principle in that. If, for example, it were clear to the Judge that the appeal was very likely to fail, then he would have to take that into account, amongst other matters in the exercise of his discretion relating to this particular ground, along with the alleged impecuniosity of the resisting party and the possible consequences of that so far as repayment of the satisfied judgment were concerned. It seems to me to be perfectly correct to say impecuniosity of itself is not a reason for granting a stay. It is one of a number of factors which the Court should ordinarily take into account in deciding how to exercise discretion. In my view URJ |= AUSTRALIAN CONSOLIDATED PRESS LTD v BALTINOS (Meagher JA) 5 much the same should be said about the second supposed error of principle by Cole JA. He said that, assuming there were arguable grounds of appeal, it did not follow that they constituted a sufficient ground for granting a stay. By that I understand him to mean that the mere fact that there are arguable grounds of appeal does not mean that the Court will invariably grant a stay. As in regard to the matter of impecuniosity it is something to be taken into account by the Court in deciding what to do. If, for example, the respondent to the appeal were a financial institution, about which there could be no question of repayment of a judgment, if the Court were to reverse the judgment under appeal, that would be a factor to be taken into account in deciding whether, notwithstanding the arguability of grounds of appeal, a stay should be granted. Each of the matters referred to by Cole JA is something that a court is bound to take into account. Neither, by itself, automatically requires the Court to grant a stay. Another matter upon which I take a somewhat different view from the President is that of the effect of Alexander v Cambridge Credit. That decision, in my respectful opinion, is a very useful one for courts and parties considering whether or not a court should grant a stay in particular circumstances. It gathers together a number of factors and considerations which courts in general should take into account in determining whether, on the particular facts of the case, the judgment should be stayed. I have never thought of it as marking any new direction in the Courts approach to the granting of stays. It is a very useful compilation of the matters that a court should take into account. We always come back, however, in my opinion, to the inescapable terminal point, that every case must depend upon its own facts. My view is that Cole JA made no error discernible from or implicit in his reasons in considering the factors which he could take into account in deciding whether or not a stay should be granted. The impecuniosity alleged does not mean, necessarily, that if the judgment sum is paid to the respondent and the appeal is upheld, that that judgment sum will have been so dealt with as to be irrecoverable. The principal ground of appeal which has been briefly explained to us by Mr McClintock is one which, in my view, is arguable but one which Cole JA was entitled to consider might not be particularly strongly arguable in his own approach to whether or not the stay should be granted. In my view, when one takes into account the size of the judgment, the strength or otherwise of the grounds of appeal, the comparative position of the parties, and the other two matters which I have already dealt with, it cannot be said that there has been a miscarriage of the exercise of the Court's discretion by what Cole JA decided to do. In my opinion the motion should be dismissed with costs. Meagher JA I agree with Priestley JA. In this matter Mr Baltinos secured a verdict of $17,400. Australian Consolidated Press, the defendant, has initiated an appeal. The claimant, Australian Consolidated Press, has sought a stay of proceedings and Cole JA has rejected that application. In my view Cole JA took everything into account which he could have taken into account but he was not moved by the claimant's persuasions. The claimant relies on two factors. The first factor is, the unfortunate Mr Baltinos is so impecunious that if the appeal is unsuccessful he may be unable to repay the sum of $17,400 to Australian Consolidated Press. His Honour considered this and rejected this, in my view, perfectly correctly. The amount in 6 UNREPORTED JUDGMENTS question is of considerable importance to Mr Baltinos if for no other reason than to pay the debts which he has incurred in conducting the case although that amount, from the claimant's point of view, must be so small as to be almost comical. The fact that recovery of this amount might be impeded if the appeal is successful is not conclusive of anything, although this Court has the deepest sympathy with Australian Consolidated Press should this calamity occur. The second matter on which Mr McClintock relied was the likelihood of success of the appeal. As to this, in my view it is not self- evident and cannot be considered totally derisory but, on any view, is not strong enough in all the circumstances to justify a stay. In my view the motion should be dismissed with costs. Kirby P: The orders of the Court are, motion dismissed; the claimant must pay the opponent's costs. ORDERS 1. Motion dismissed; and 2. Claimant to pay opponent's costs. COUNSEL: Claimant: B McLintock Opponent: L Johnson (Solr) SOLICITORS: Claimant: Gilbert and Tobin Respondent: L Johnson