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. As to the unarguability of the liability holding of the trial judge, it seems to me fair to say that the judge had material before him on which he was entitled on his view of the facts to reach the result that he did. On the other hand, it does not seem to me that the appeal can be classed as unarguable in regard to liability. It does not seem to me to be a fanciful or frivolous appeal. I express no other opinion about it than that. That however is sufficient to oblige the Court to consider the basis of the defendants" application for a stay, which is that if the appeal were to succeed then in the absence of a complete stay it might be difficult to recover any monies paid out to the plaintiff prior to the final disposition of the case. There is evidence as I indicated earlier which has been put before the court of the plaintiff's present financial position and his intentions forinvestment of such part of the judgment monies as he may have access to prior to the hearing of the appeal. I am not intending to be critical of his investment intentions in saying that 2 UNREPORTED JUDGMENTS the evidence to my mind is not sufficient to dispel what seems to me to be a reasonable fear on the part of the defendants that if all or some of the judgment amount is paid to the plaintiff now, and if the defendants succeed in the appeal, then recovery of what will by then have been paid may be difficult or even impossible. That seems to me to be a view which requires me to grant the stay that has been sought. On the other hand, it also seems to me that the plaintiff's requirement or wish to have present access to some part of the judgment monies is both a reasonable one and one which has some features to it which takes it out of the ordinary class of cases where respondents are naturally anxious to get the fruits of what they expect to be the result of the appeal and the judgment against which the appeal is being brought. The features of the accident and of the plaintiff's circumstances and the length of time involved in the court proceedings since the accident all seem to me to give this case an entitlement to expedition somewhat greater than the entitlement of practically every case that's in the appeal list to as speedy a hearing as possible. Ihave raised the matter of expedition with counsel in the course of discussion this morning, and have indicated that hearing dates will be available in December if I order expedition. No objection to this course has been raised by the defendants and counsel for the plaintiff indicated he intended in any event to seek expedition if, as is happening, orders for stays were to be made. I therefore order that the judgments and orders of Acting Justice Adams against the three defendants be stayed pending the hearing of the appeal. I also order that expedition be granted to the hearing of the appeals, and I order that the appeals be listed for mention in the next callover list to be conducted by Registrar Jupp, which is Wednesday 1 October. He will there make further directions concerning the preparation of the appeal for hearing on a date then to be decided by him in December of this year. The costs of the applications for stay should be costs in the appeal. Orders accordingly.