WILSON BROS TIMBER CARTAGE PTY LTD v LLOYD [1995] NSWCA 519

WILSON BROS TIMBER CARTAGE PTY LTD vy LLOYD

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA 3 July 1995

[1995] NSWCA 519

Clarke JA. These are an application for expedition at the suit of the respondent to the appeal and an application for a stay by the appellant. The fundamental issue in the appeal is liability. I have had the issue described to me by counsel and although my reaction is that the appellant has a difficult task ahead of it, I am unable to say on what I have been told that the appeal has got no prospects, or no realistic prospects, of success. I tend to think that they might not be very great but I cannot say the appellant will not succeed.

Although the basic principle which is applied in actions in which the plaintiff receives a verdict is that the plaintiff is entitled to the fruits of that verdict, there has been a rule of practice for as long as I can remember in the type of case with which I am presently dealing that if liability is the issue on the appeal a stay should not be granted. That rule has not been applied invariably, particularly if some strong reason is shown for refusing a stay. The reason in this case is, according to the respondents argument, that the accident happened a long time ago. The difficulty with this argument is that the delay would seem to lie mainly at the feet of the respondent's earlier solicitors. In all the circumstances I think that the balancingexercise which should be carried out is weighted eventually in favour of the applicant for the stay.

Iam aware that her Honour declined to grant a stay after entering judgment but I have not seen a copy of her Honour's reasons for taking that action. In the circumstances, I do not think that there is anything in the evidence in this case to displace the rule of practice to which I adverted. Because there will be a stay and because of the length of time since the accident it is, however, appropriate that the proceedings be expedited and I grant expedition grade C. The costs of the application will be costs in the appeal.