BUD-PAK PTY LTD v ADAMSTOWN ENGINEERING PTY LTD SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL KIRBY P 13 November 1995 [1995] NSWCA 64 PRACTICE & PROCEDURE — stay — order for costs — appeal belatedly filed — upon assumption that no appear would be lodged, solicitor for unsuccessful plaintiff invites solicitor for successful defendant to prepare bill of costs in assessable form — bill prepared — late application made for leave to appeal out of time — primary decision (Ireland J) rests substantially on credit findings — difficulties of disturbing such findings — whether stay of execution of costs order should be provided — held: (1) In considering the application, the Court should take into account: (a) the fact of appeal and defence of appellate process; (b) the preliminary estimate of the prospects of success in the appeal; (c) the costs that would be occasioned by requiring assessment of costs to proceed; and (d) the delay in notifying the fact of appeal; (2) Having regard to those factors, the execution of the costs order should not be stayed. APPEAL — credibility findings — prospects of success — application for stay of execution of costs order — observations by Kirby P on the duty of lawyers to bring home to appellants the difficulties which adverse credibility findings present to the successful prosecution of an appeal. Jones v Hyde (1989) 63 ALJR 349 (HC); Alexander & Ors v Cambridge Credit Corporation Ltd (Receivers Appointed) & Anor (1985) 2 NSWLR 685 (CA), applied. Kirby P. It is a strange thing that disputes about procedural matters can sometimes present problems which are quite difficult, and the decision in which is evenly balanced. This is such a case. Indeed I feel that it is very evenly balanced even though the issues at stake are not particularly significant. The amount truly in issue is of the order of $2,000 to $3,500. But the case illustrates the quandary of decision-making because there are persuasive arguments on both sides. The application is for a stay of the execution of the cost orders made by Ireland J in litigation between the parties. That litigation consumed a number of days in July 1995. It resulted in a judgment for the defendant/respondent on 8 September 1995. By that judgment, his Honour ordered the plaintiff/appellant to pay the costs of the trial. The appellant has now belatedly appealed to this Court. Problems arose because the appeal was out of time. It seems that this fact is not now going to cause a difficulty. The appeal will presumably proceed. In due course, it will be decided by the Court. The Court has been informed that the proposed notice of appeal was settled by senior counsel who appeared at the trial — Mr J M Foord QC. The draft notice of appeal challenges the findings of the primary judge concerning the existence of a contract, and an alleged variation of the contract, as well as a finding on the claim based in negligence. 2 UNREPORTED JUDGMENTS The second ground of the proposed notice of appeal gives the flavour of the dispute: 2. His Honour was in error in so far as he had held that the contract between the Appellant/Plaintiff and the Respondent/Defendant was otherwise than in the terms of the conversation between the principals of the parties on 18 February 1989. That formulation raises a challenge to the determination by Ireland J of what that conversation entailed. It is difficult for me at this stage to determine the appellant's prospects of success in the appeal. However, on the face of things, the prospects of challenging the finding on the contract appear to be dented somewhat by the line of authority of the High Court of Australia binding on this Court in such cases as Jones v Hyde (1989) 63 ALJR 349 (HC) at 351; Abalos v Australian Postal Commission (1988) 171 CLR 167 at 178f; and other authorities to like effect. Counsel appearing today quite candidly informed the Court that he himself had not considered the prospects of success in the appeal. The Court is therefore left with a notice of appeal which, on its face, appears to present severe difficulties for the appellant. It is without an assurance by counsel that there is, in his judgment, a real issue to be litigated in the appeal. The only inference available to support the appellant is that senior counsel who appeared at the trial saw fit to prepare the notice of appeal. I infer that he put his support to its belated filing, although even this may involve a leap of faith rather than a proper inference. On the other hand, the respondent, not knowing that an appeal was pending proceeded — following a conversation between the solicitors — to prepare a bill of costs in an assessable form. This involved some expenditure of time which was doubtless devoted to that task. That bill is now ready for assessment under the new system. This involves the examination of the bill, with any notice of objection, by a private legal practitioner who acts as assessor. The costs which would be involved in preparing the notice of objection and in conducting the assessment of the costs of the trial are given at between $2,000 and $3,500. As the judgment below was for the defendant/respondent, there is nothing to be stayed in that regard. All I am asked to stay is the execution of the order for costs. In favour of doing so is the fact that the appeal has been lodged and will proceed to a hearing. If it results in a judgment in favour of the appellant/plaintiff, the cost order of trial would almost certainly be vacated. Throwing away an additional sum of legal costs is to be avoided, if that end is properly attainable. A new factor has entered the equation. It is the delay in the hearing of the appeal. Unless the appeal is expedited, the appeal would not be heard by this Court for about two years. So the question for me is whether the costs assessment should be held up. The successful party at trial would be then kept out of execution upon its costs order, and the matter would be left to rest until the outcome of the appeal was known. My mind has wavered on the order that should be made. My general inclination is to defend the process of this Court and to provide stays in cases where they are necessary or useful for that purpose. I have expressed that view in such cases as Alexander & Ors v Cambridge Credit Corporation Ltd URJ BUD-PAK PTY LTD v ADAMSTOWN ENGINEERING PTY LTD (Kirby P) 3 (Receivers Appointed & Anor (1985) 2 NSWLR 685 (CA) at 694. But in this case so uncertain am I about the prospects of success in the appeal that, at least on the material placed before me today, I do not feel that I would be warranted in ordering a stay of the execution of the order for costs, so that the assessment of the costs would be greatly delayed. I take into account, in this regard, the delay which the appellants occasioned by their late decision to lodge an appeal. Had they formulated an early decision and signalled that to the respondent they might have saved the respondent the trouble and cost of preparing the bill. As it is, they virtually invited the preparation of that bill. It has now been prepared. In my opinion it should now proceed to completion. I leave this matter with the expression of the hope that somebody in the team of advisers for the appellant will explain to the appellant, in very clear language, the lines of authority in the High Court to which I have referred. Such authority is binding on this Court. Many people feel that they have a very strong case on the merits. But, they do not realise the difficulties in the prosecution of an appeal where the decision at trial rests, in part or whole, upon a credit finding or as was said in Abalos by McHugh J, 'Upon the subtle influences of demeanour of witnesses'. I have, for myself; very little confidence in 'subtle influences of demeanour' in resolving accurately and in a judicial way disputed matters of fact However, the principles in Abalos and the like cases are invariably applied. They will be applied in this case. I trust that Mr Turnbull, or somebody in the appellant's team, will bring their full force to bear on the appellant. For it is that consideration which, in the end, affects my decision on the motion to reject the stay sought. I am not convinced that further delay is warranted on the material placed before me. The order which I make is the motion for a stay of execution of the cost order is dismissed. The claimant/appellant must pay the costs of the motion. There being no objection I also make Os 1 and 2 in the further amended notice of motion. I should say that the respondent did not consent to the making of those orders. However, I would in any case have made them. 1. Motion for stay of execution of the order for costs, dismissed with costs; and 2. Orders 1 and 2 in the further amended notice of motion made.