New South Wales Court of Appeal CITATION : Seiko Australia Pty Ltd v Da Rin [2000] NSWCA 146 FILE NUMBER(S) : CA 41033/99 HEARING DATE(S) : 13 June 2000 JUDGMENT DATE : 13 June 2000 PARTIES : Seiko Australia Pty Ltd - Claimant Eugene Da Rin - Opponent JUDGMENT OF : Mason P at 23, 25; Heydon JA at 1; Clarke AJA at 24 LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : LOWER COURT Beazley JA JUDICIAL OFFICER : COUNSEL : S G Campbell - Claimant E J Techera - Opponent SOLICITORS : Hunt & Hunt - Claimant Adrian F Guido & Co - Opponent DECISION : The Notice of Motion filed on 7 April 2000 is dismissed; the claimant is to pay the opponent's costs THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41033/99 MASON P HEYDON JA CLARKE AJA Tuesday, 13 June 2000 SEIKO AUSTRALIA PTY LTD v Eugene DA RIN JUDGMENT 1 HEYDON JA: The claimant by Notice of Motion filed on 7 April 2000 seeks discharge or variation of orders made by Beazley JA on 27 March 2000. On that day, Beazley JA dismissed a Notice of Motion filed on 10 February 2000. That Notice of Motion sought two orders. The first was the stay of an order made by Gamble ADCJ that the claimant pay the opponent the judgment sum of $238,577.04 in District Court matter No 4018/98. The second was the stay of an order made by Gamble ADCJ that the claimant pay the opponent's costs of those proceedings. Each stay was to operate until the determination of the claimant's appeal against Gamble ADCJ's orders. 2 Beazley JA refused the first order after considering evidence and hearing full argument. She also refused the second order. She noted that no evidence had been placed before her as to why the order should be made and said that she made no adjudication in relation to that order on the merits. 3 She also ordered the claimant to pay the opponent's costs of the Notice of Motion. 4 The claimant seeks in this application the same orders as it sought from Beazley JA. As the claimant accepts, it must demonstrate at least that the principles in House v The King (1936) 55 CLR 499 are satisfied (see Wentworth v Wentworth (1994) 35 NSWLR 726 at 733 per Handley JA). It may be that it must demonstrate that Beazley JA misdirected herself in principle or that her orders were plainly wrong (see Wentworth v Wentworth at 731 per Mahoney JA) or it may be that it must demonstrate that the discretion vested in Beazley JA plainly miscarried (see Wentworth v Wentworth at 737 per Powell JA). 5 Before Gamble ADCJ the opponent claimed damages for personal injury. He was a contract builder carrying out work at the claimant's offices. He parked his car in a car park one morning and took the most direct route to the main entrance, ignoring appropriately graded and sealed access paths which he might have taken. The most direct route was down a grassed bank. He slipped and injured his left shoulder. 6 Gamble ADCJ found that the claimant was in breach of a duty of care to the opponent, but that the damages should be reduced by 40% by reason of his contributory negligence. The primary components in the judgment sum were for past and future loss of earning capacity. 7 The claimant did not ask Beazley JA to deliver formal reasons for judgment. Her reasons for refusing the first order sought emerged in the course of argument and may be summarised as follows. (a) She noted that the opponent conceded that in relation to liability there was an arguable point of law. (b) She considered that the claimant had some prospects of reducing the component of damages which related to future economic loss. (c) She said that a strong factor against a stay was that the opponent was entitled to the fruits of the verdict he had been awarded. (d) On the evidence, the opponent, though he was about 65 and had no income, had assets of about $250,000, being half the equity in the matrimonial home which he and his wife owned as joint tenants. If the claimant satisfied the judgment the sum of $72,150.75 would have to be paid to a workers' compensation insurer as reimbursement of workers' compensation payments. That would leave about $160,000 to $170,000 in the opponent's hands. If the claimant was successful in the appeal and the opponent failed to repay the judgment sum and failed to pay the costs of the trial and of the appeal, the claimant would be able to have recourse to the opponent's real property. It would not be easy for the opponent to realise that property and remove the proceeds from Australia in view of the fact that he and his wife were not on good terms. (e) The claimant complained that it would be "barely protected", but this involved a concession that it would be protected, and it could ask for no more. (f) In consequence of the existence of assets sufficient to permit recovery of the judgment sum less workers' compensation repayments, the risk of the opponent returning to live in Italy with friends and family members was immaterial. That risk was reduced by the fact that the opponent said in his affidavit that he had no intention of travelling to Italy and intended to continue to live in Australia. He was not cross-examined to suggest that that evidence was untrue. 8 In this application the claimant put out of consideration any issue as to the possibility of a return to Italy but rather propounded a number of other criticisms of Beazley JA's reasoning. 9 In my judgment the reasoning of Beazley JA displays no error of fact and no error of legal principle. It does not rely on any irrelevant consideration, and takes into account all relevant considerations. The result at which it arrives cannot be regarded as so unjust or so plainly wrong as to indicate that some error of the foregoing kinds has occurred. In short, it cannot be said that her discretion to refuse a stay has plainly miscarried. 10 The claimant propounded, as I have indicated, a number of criticisms. Two of them were related. The first of them was that Beazley JA ought to have had regard to the fact that the opponent did not offer any undertaking either to remain within the jurisdiction until the appeal was disposed of or not to dispose or to otherwise deal with his only asset until the appeal was disposed of. The second related criticism is that Beazley JA should have taken into account the fact that no security for repayment of the judgment sum was offered by the opponent. 11 The claimant before this Court conceded that these matters had not been directly raised before Beazley JA. He relied on a reference by the opponent to the matrimonial home being "a security for the appellant" but nothing was put by counsel for the claimant in relation to either of these matters. 12 In those circumstances it cannot be said that Beazley JA erred in not dealing with those possibilities. 13 The next group of arguments propounded by the claimant commenced with the contention that Beazley JA gave insufficient weight to the concession made by counsel for the opponent before her to the effect that there was, as it was described, "an issue of liability that is appealable". Related to that submission was the submission that Beazley JA erred in exercising her discretion in balancing that factor against the issue of whether the claimant would be sufficiently protected from the risk of losing what it has to pay out in satisfaction of the judgment sum should its appeal eventually succeed. 14 The claimant argued that Beazley JA had in effect proceeded in an unduly fixed fashion by first posing the question: "Was the appeal arguable?" and then moving to a second stage: "Could the claimant get back moneys it paid out if no stay were granted?" 15 The claimant submitted that the primary judge erred in failing properly to evaluate the needs of justice given the unlikelihood that the claimant would recover the money paid out. It was put that it was doubtful that the money could be recoverable and that that made the appeal nugatory. 16 Those submissions in my judgment do not adequately face up to the fact that Beazley JA found (and correctly found) that though it might be difficult to get the money back the money could be recovered and in that sense the appeal was not nugatory. In my judgment the primary judge did not err in the manner in which she exercised her discretion in weighing those two competing factors. 17 The claimant then submitted that the primary judge had failed to give sufficient weight to what was described as the very real and practical difficulty of recovering a substantial judgment sum from a private individual whose only asset was the family home owned jointly by himself and his wife. 18 A perusal of the transcript of argument before Beazley JA does not reveal that this was specifically argued before her or at least that it was placed at the forefront of the argument. Beazley JA did take account of the fact that the claimant might have to go so far as to bankrupt the opponent in the event that the opponent dissipated the judgment moneys handed over if there were no stay. That being so, I do not think it can be said that she failed to give sufficient weight to the difficulties of recovering the judgment moneys. 19 A final argument was that having regard to the fact that on the evidence before Beazley JA relations between the opponent and his wife were strained his real interest in the home might have been less than fifty per cent. The argument in effect pointed to the possibility that on divorce the opponent might receive less than his equity in the family home. 20 Beazley JA did observe in the course of the argument that there was nothing to suggest that the progress of the Family Court proceedings would be speedier than the ordinary conduct of an appeal in this Court. In any event, the material before Beazley JA in my judgment is too exiguous to cast any real doubt over the proposition that the opponent's interest in the family home is likely to be fifty per cent of its value. 21 For those reasons I would favour the dismissal of the application so far as it relates to the first order which Beazley JA made. No reason has been advanced for concluding that there should be any discharge or variation of her second or third orders. 22 Accordingly, I would propose the following orders. 1. The Notice of Motion filed on 7 April 2000 is dismissed. 2. The claimant is to pay the opponent's costs. 23 MASON P: I agree. 24 CLARKE AJA: I also agree. 25 MASON P: The orders of the court will be as indicated. ********** 1 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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