AUSTRALIAN RACING DRIVERS' CLUB LTD v GRICE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY JA 23 March 1998 [1998] NSWCA 26 Priestley JA The motion before the court which was filed on the 19th of last month asks that execution of orders made in the District Court be stayed until an appeal against those orders has been determined. The orders in question were made by his Honour Judge Taylor of the District Court in the second half of 1996, a notice of appeal being filed first on 4 October of that year and subsequently in amended form on 12 November of that year. The orders made were in favour of the plaintiff in the proceedings, Mr Grice, who had brought a claim against three defendants in the alternative. The first defendant was the Australian Racing Drivers' Club Ltd; the second Alfa Romeo (Australia) Pty Ltd and the third, Mr Longhurst. Mr Grice succeeded against the club and not against either of the other two defendants. The judgment was entered in his favour for a sum in the order of $21,000 inclusive of interest. The judge granted a stay upon finalising his orders, for twenty-eight days, that being the period within which an appeal could be brought, and that being the period relevant to s128 of the District Court Act which entitled the defendant against whom judgment had been pronounced to give security to the satisfaction of the Registrar for the amount of the judgment debt including an amount to be assessed by the Registrar in respect of costs and to obtain a stay of proceedings until the appeal were disposed of or until a court ordered otherwise, upon provision of that security. No application was made pursuant to s128. The basic reason that has brought the present application before the court today is a combination of two factors, one that the trial judge made Bullock orders in regard to the costs of the second and third defendants against whom the plaintiff's action had failed, the result being that the club will eventually be responsible to the plaintiff for the whole of the proper costs of the three defendants. Estimates of the costs have been made which have led the plaintiff and the other parties to believe that they are very considerable in total as claimed, being something in the order of $120,000, although for the applicant club today Mr Burn has submitted that that figure may be expected to be considerably reduced when the cost assessor to whom the assessment of these costs has been committed has finished his work. The hearing of the appeal will in the ordinary course be in October or November of this year. This is information that I obtained from the Registrar of the Court of Appeal during the course of the day with the consent of the parties. For the club Mr Burn has submitted, first, that prospects of success in the appeal are high, second that it follows from his first submission that it is quite likely that if the costs assessments which have now been put in-train are completed before the appeal is heard the expenditure of having those assessments taken to completion will have been wasted and any amounts paid pursuant to them would have to be repaid. He submits that the common sense of the matter is that nothing further should happen in regard to the payment of the costs and 2 UNREPORTED JUDGMENTS likewise of the actual judgment sum until the appeal has been disposed of. In light of the information I have obtained from the Registrar during the day he says that should be about seven months from now. On the other hand he has not submitted and has frankly stated he is not in a position to submit that if no stay were to be granted and judgment were to be satisfied that there is any risk that the moneys paid out would not be recovered. So far as the position of his own client is concerned in regard to the payment of moneys necessary to fulfil the judgment he relies on some evidence which suggests in a way that is not particularly clear that his client might have some difficulty in payment in the immediate future of any sum of the order of $120,000. He acknowledges what was submitted by his opponents that the authorities lay down in regard to applications of this kind that some special circumstance must be shown before the court will grant a stay. Sometimes the degree of the specialness of the circumstance which must be shown is not very high; the court is quite flexible in these matters. Nevertheless, the starting point for applications of this kind is that some strong reason at the very least must be shown why there should be a stay. Relevant to this aspect of the matter is a fact not yet mentioned that on 2 February this year a letter was written on behalf of Mr Grice making demand upon the club for the judgment sum, interest on the judgment sum and costs of $45,000. It became clear in the course of the discussion with the representatives of the various parties that the successful plaintiff, Mr Grice, is not yet in a position to seek any sum for costs pursuant to the judgment. The position is that the costs both of Alfa Romeo and of Mr Grice either have been or are about to be submitted to the same costs assessor for him to arrive at a figure in accordance with the rules which apply when the parties are unable to agree on costs. I am not aware of how long it will take before the assessor reaches the stage where he can fix a figure which will become enforceable pursuant to the judgment but it seems at the least it will not be for some little time yet. The immediate threat faced by the club therefore is that the successful plaintiff is seeking a figure in the order of $21,000 as it were as a first instalment of what will eventually be due under the judgment. That figure is not of such a size as to make me think that the argument from convenience and practicality, which Mr Burn has put forward, should be accepted. Another factor relevant to this is that having read the trial judge's reasons for judgment and knowing very little more about the case than what is contained in them, it seems to me that on the one hand the appeal would not be categorised as a frivolous one but on the other hand I am not persuaded - and I emphasise that this comment is made simply on reading the reasons for judgment and is by no means any kind of worthwhile opinion on the fate of the appeal - that the appeal is a particularly strong one. That leaves me in the position where I cannot really forecast the fate of the appeal one way or the other but leaves the successful plaintiff in the position of being in possession of a judgment which carries the ordinary rules with it. Had the claimant today sought a stay on the basis of giving security to the satisfaction of the Registrar of the Court of Appeal both for the judgment and the costs, I may have been more favourably disposed to the granting of a stay. My reason would have been that in view of the time before the result of the appeal is known, so long as the plaintiff was safeguarded by security to the extent that URJ AUSTRALIAN RACING DRIVERS' CLUB LTD v GRICE (Priestley JA) 3 there could be no doubt but that if the appeal failed the plaintiff would recover all he was entitled to under the judgment, then the practicalities of the matter that Mr Burn urged upon me would have had more weight than I have indicated they carry with me in view of the way in which the application was actually put. Mr Burn, when this was raised with him, indicated he had no instructions to offer security but would not oppose an order, although he could not consent to it, by which a stay was granted subject to security being furnished. But a difficulty with going ahead with that line of thought was that on the materials before me it would be very difficult to fix an amount for which security should be required. So the situation as it stands at present is that if no stay is granted then those acting for the plaintiff are not in a position to enforce more than a third or a quarter of what the judgment will eventually comprise altogether. I put the fraction in those approximate terms because, although the figures for costs which have been mentioned before me seem very high and although I suppose in most assessments of costs something comes off what is originally claimed, nevertheless the court has become accustomed in recent years to seeing very large figures for costs for hearings of a length which at one time would not have been capable of producing such costs results and sometimes the result of costs assessments is not too far away from what was originally claimed. Thus with the plaintiff at present being in the position that I have mentioned the weight of the convenience argument and practicality argument is so much the less, as it seems to me. As things stand today I do not think that the claimant has made out what either might be called special circumstances or a sufficiently strong reason to interfere with the ordinary course of allowing the plaintiff to take such steps to enforce the judgment pending the hearing of the appeal, as he may be advised. It is possible that that position may change. It is also possible that as a result the claimant may seek at a later stage before the appeal if faced with a much larger claim under the judgment than presently faced with to make application again for a stay but this time upon an offer of provision of full security to the satisfaction of the Registrar. I do not wish in any way to forecast what should happen or seek to tie the hands of whatever judge might hear such application in the future. I would not be able to do that anyhow even if I tried, but I mention it simply because I don't want the refusal of the stay application today to be taken as some kind of pronouncement against the possibility of a subsequent application for a stay upon provision of security being made and possibly being successful. If such an application comes to be made then it will have to be decided on its merits and on the facts as they then appear. To repeat myself, as things stand at the moment I do not think a case for a stay has been made out and I dismiss today's application with costs.