DUGGAN v COMMONWEALTH BANK OF AUSTRALIA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY ACJ, HANDLEY AND SHELLER JJA 10 July 1995, 10 July 1995 [1995] NSWCA 135 PRACTICE AND PROCEDURE — Court of Appeal — discharge or variation of order of single Judge — proper approach to — need to show error of fact-finding or of law or of principle — practical effect of refusal may be to prevent appeal — held: No error — Discharge of orders refused. Kirby ACJ Ex tempore By s46(4) of the Supreme Court Act 1970 (the Act) the Court of Appeal may discharge or vary a judgment given by a Judge of Appeal or an order made or decision given by a Judge of Appeal. On 26 June 1995, Mahoney JA, exercising the powers of the Court under s46(1) of the Act declined to provide a stay of the execution of orders made by Cohen J on 28 April 1995 affecting the parties now before the Court. The facts of the case are summarised in the reasons of Mahoney JA. It is not necessary for the Court as now constituted to repeat them. At the close of his reasons, Mahoney JA is recorded as indicating that the matter was one upon which his mind had wavered. So it is in my case for the matter is quite closely balanced. However, such is often the case in procedural orders of this kind. It is a reason why, in appeals or reviews of such orders, courts hesitate before they intervene to give effect to any different order which they might tentatively entertain. The case has proceeded before this Court upon the footing that there was admissible in the application under s46(4) of the Act new evidence which was not placed before Mahoney JA. I shall assume that this is so. The new evidence was, in effect, evidence provided to the Court in an affidavit of Mr William Duggan, the first claimant, sworn 6 July 1995. Annexed to that affidavit was material from a firm of chartered accountants which indicates that the losses which would be recoverable as damages by the claimants which Mr Duggan and the other claimants sought to prove would be of the order of $1.6 million. In addition, certain other damages were claimed by them. They were summarised in paral4 of the said affidavit: "14. I say that in the event that the appellants are successful in their appeal before this Honourable Court that the appellants would be entitled to damages of not less than $2.8 million..." Mahoney JA did not have the benefit of this attempted quantification of the claimants' claim for damages. On the other hand, his Honour did have the suggestion that a claim for damages existed. He also had the very real fact that interest is accumulating everyday on the amount outstanding to the two opponents. His Honour stated that, with the passage of time, that interest would accumulate before any hearing by something of the order of $1 million. This appears to be a correct estimate having regard to the delays which are inherent 2 UNREPORTED JUDGMENTS in the appellate process (even with some measure of expedition) and in the time that is necessary for the consideration by the Court of arguments which, in this case, would appear somewhat novel. In effect, if the Court were to provide the stay which is sought by the claimants it would be penalising the opponents in the amount which I have stated. It would do so without any real prospect of the recovery of that sum in the event that the appeal failed. I do not believe that to provide a stay in these terms would be just as between the parties. Approaching the matter upon the footing that Mahoney JA's decision is prima facie correct, I do not consider that any relevant error has been shown either of fact-finding, of law or of principle which would warrant this Court's intervening to provide a different order. Nor am I convinced that an injustice has been demonstrated. Like Mahoney JA, I have reached this conclusion with hesitation because I realise that, in the practical sense, this will have very serious consequences for the real prospects of the prosecution of the appeal and of the advancement of the cause of the claimants. In reaching the conclusion I take into account (necessarily in a very preliminary way because there has been no full argument of the matter) such understanding as I presently have of the claimants' prospects of success. That is a matter appropriate to be taken into account in applications for a stay. Having regard to all of the matters which have been placed before the Court, and notwithstanding the very thorough way in which the matter has been put by counsel for the claimants, I would not discharge or vary the judgement given by Mahoney JA but would confirm it. The application to discharge or vary of that judgment should be dismissed. The claimants must pay the opponents' costs. Handley JA I agree that the orders of Mahoney JA should not be discharged or varied and I agree with the orders proposed by the Acting Chief Justice. Sheller JA I also agree. Kirby ACJ The orders of the Court are, accordingly, as I have provided. The application to discharge or vary the judgement of Mahoney JA be dismissed. The claimants pay the opponents' costs. Counsel for the claimants: S White Solicitors for the claimants: Price & Company Counsel for the first opponent: A W Street Solicitors for the first opponent: L E Taylor Counsel for the second opponent: P O'Loughlin Solicitors for the second opponent: Clayton Utz