WHITING v COMMONWEALTH BANK OF AUSTRALIA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SHELLER JA 15 June 1998 [1998] NSWCA 263 Sheller JA The claimant, Douglas Edward Whiting, was the defendant in proceedings brought by the Commonwealth Bank of Australia in the Commercial Division to recover from him a sum of money said to be owing under a guarantee given by him, in consideration of certain advances and accommodation granted to a company called Gokit Pty Ltd. The proceedings were heard by Bainton J who, on 12 December 1997, gave judgment for the bank in the sum of $744,440, which with interest led to a judgment amount of $838,627.82. On 20 January 1998, Mr Whiting filed a notice of appeal without appointment and on 20 April 1998 a notice of appeal with appointment. The grounds in the notice of appeal with appointment were as follows: "The overlooked facts and discrepancies not brought forward at the heading by my counsel and to finalise my defence of this case owing to serious bad health (bowel cancer). Lack of funds to pay my counsel after paving my physicians. To protect my wife's and my credibility and discredit the officers of the Commonwealth Bank of Australia for their lack of discipline and integrity including the prosecution acting for the Commonwealth Bank of Australia staff which may include Mr Taylor or Mr Marshall himself and/or their staff." The order sought was for the Commonwealth Bank of Australia to discontinue this matter, or, in the alternative, that the previous decision be reversed and costs awarded to Douglas Whiting for his solicitor's and counsel's costs in finalisation of this matter. On 5 June 1998 Mr Whiting filed a notice of motion seeking a stay of execution of the orders made by Bainton J. It is that application that is before me now. The application was supported by the affidavit of Mr Whiting of 5 June 1998 in which he stated that he was an unrepresented litigant, that he had been served with a bankruptcy petition, which was annexed and which was returnable on 17 June 1998. He further said that the appeal in the Court of Appeal had been made returnable for 2.45pm on 2 July 1998; that date was apparently the date on which it is proposed that the settlement of the index of the appeal books take place before the Registrar. Mr Whiting said that when he filed the notice of appeal in the Supreme Court he was not aware that he was required to apply for a stay of execution of the judgment entered against him. He said that unless the stay is granted, the Federal Court may declare him bankrupt. The opponent bank, which is represented by Mr Walton of counsel, filed an affidavit by Mr Robert Lloyd-Jones of 10 June 1998 which annexed the bankruptcy notice and bankruptcy petition. On this material, Mr Whiting seeks a stay of the execution of the judgment. Mr Walton, in his oral submissions, took me to those parts of the judgment of Bainton J which demonstrate that the conclusion to which his Honour came was based in large part, if not entirely, upon the oral and written evidence before him. 2 UNREPORTED JUDGMENTS It is plain from that judgment that when the evidence of Mr Whiting was in conflict with the evidence led on behalf of the bank, his Honour preferred the evidence led on behalf of the bank. The trial Judge referred in detail to Mr Whiting's cross-claim which contained all the material upon which he relied in defence of the bank's claim. There is nothing in that material to which I have been taken by Mr Walton which would indicate that there was any possibility of a successful appeal in these proceedings. Having heard from Mr Walton, Mr Whiting addressed the Court to say that he took exception to some matters in the evidence of a Mr Bishop and a Mr Frost and that he believed that he would be able to show that what they said was wrong. He said that he could call witnesses to that effect. Ultimately, he told me that he had never signed the guarantee. A case such as this is made difficult when a litigant appears in person. Special consideration must, I think, in the circumstances of a case like this, be given to the fact that Mr Whiting appears in person and is obviously not familiar with the procedures of the Court on appeal. However, having taken account of that disadvantage and paid attention to the matters advanced by Mr Whiting, I am not persuaded that there is any basis at all upon which I could order a stay of execution on his application. Accordingly, the order that I make is that the application contained in the notice of motion of 5 June 1998 be dismissed with costs.