THE RICE DAUBNEY GROUP (NSW) PTY LIMITED v KEANE [1997] NSWCA 312

THE RICE DAUBNEY GROUP (NSW) PTY LIMITED v KEANE SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA 24 September 1997

[1997] NSWCA 312

Priestley JA. Mr D J Keane was injured in 1989 when he and another man fell from the mezzanine level of a city building to the ground floor. He and the other man brought proceedings for damages for negligence against three defendants, the occupier of the building, the occupier's agent, and the building's architect.

Mr Keane's case was heard by Acting Justice Adams in late 1996 and judgment was given in July and August 1997. Acting Justice Adams found all three defendants negligent, and entered judgment for the plaintiff in the sum of approximately $602,000. He apportioned responsibility in the proportion of 25 percent to the occupier and agent, treating them as one, and 75 percent to the architect. He dismissed a defence of contributory negligence.

A stay was sought from the trial judge who granted a stay which had the effect of staying the judgment as to half of the judgment amount, and allowing the judgment to be carried out in respect of the other half. I assume that the stay was sought and the judge's orders made on the basis the defendants were proposing to appeal. They did appeal, and have now soughtfrom this Court a complete stay of judgment pending the disposition of the appeal.

This application has been opposed by counsel for the plaintiff on the footing that the judge was right in the basis he adopted for the order he made concerning a stay in thinking that his decision on liability would not be overturned on appeal. For the plaintiff in this Court it was said in written submissions and repeated orally that the decision of Acting Justice Adams on liability was unarguably correct.

Evidence was also put before the Court of a present and legitimate need on behalf of the plaintiff for access to at least a considerable portion of half of the judgment sum. Those two matters seem to me to be the ones that need to be considered in this particular case in deciding whether or not a full stay should be granted.