WESTERN SYDNEY AREA HEALTH SERVICE v HART [1995] NSWCA 511

WESTERN SYDNEY AREA HEALTH SERVICE v HART SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER JA 10 July 1995

[1995] NSWCA 511

Sheller JA. This is an application by the appellant, Western Sydney Area Health Service, that a verdict and judgment in proceedings be stayed until further order. The claimant has appealed from the verdict and judgment of 9 June 1995 in an amount of $140,028.22 in favour of the opponent, Dolina Graham Hart. The application for a stay is opposed.

The application is supported by two affidavits filed on behalf of the claimant, both by Vicky Ioannides. She deposed to the opponent having been married in 1960 and coming to Australia in 1961, being married, and living at Springwood with one adult child. The opponent and her husband are paying off their home and currently have $30,000 on a mortgage.

The claimant relies upon an affidavit of Donald Kirby of 5 July 1995. That deponent says that after summing up to the jury no further directions were sought. There is also attached to the affidavit two schedules of past economicloss that show for the period up to 8 June 1994 the amount claimed was in excess of $160,000.

The first five grounds of appeal are errors in law claimed to have been made by the trial judge in directing the jury for answering a question from the jury. The sixth ground is that the verdict and judgment was manifestly excessive. The question here is whether the plaintiff/opponent should have the fruits of her victory or whether the verdict should be stayed until the appellant has had an opportunity to prosecute its appeal. In support of the application I have been referred to the judgment of Kirby P in GJO v Large of 26 September 1988 in which his Honour said in the circumstances of that case, that there being no evidence before the court concerning the opponent's assets, he considered it appropriate to provide a stay. The material proffered by the claimant in respect of the application is slight indeed. However, considering the matter, I am satisfied that a stay should be granted but conditional upon payment forthwith to the opponent of an amount of $75,000 on account of the verdict.