TRUSTEES OF THE ROMAN CATHOLIC CHURCH v HOGAN (No 2) [2002] NSWCA 7

New South Wales Court of Appeal

CITATION : TRUSTEES OF THE ROMAN CATHOLIC CHURCH v HOGAN (No 2) [2002] NSWCA 7 FILE NUMBER(S) : CA 40117/01 HEARING DATE(S) : 13 December 2001 JUDGMENT DATE : 7 February 2002

PARTIES : TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF SYDNEY & ANOR v PAUL MARTIN HOGAN (No 2) JUDGMENT OF : Mason P at 1

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT SC 20164/98 FILE NUMBER(S) : LOWER COURT Wood CJ at CL JUDICIAL OFFICER :

COUNSEL : Appellant: I Harrison SC Respondent: T D Kelly (Sol) SOLICITORS : Appellant: Makinson & d'Apice Respondent: T D Kelly & Co CATCHWORDS : Restitution of moneys paid under judgment set aside on appeal - new trial as to damages only no reason for refusing restitution - right to seek interim damages under Part 5 Div 2 of Supreme Court Act a matter for Common Law Division Heydon v NRMA & Ors, Bateman & Ors v NRMA & Ors, Morgan & Ors v NRMA & Ors (No 2) [2001] NSWCA 445. CASES CITED: TCN Channel 9 Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381; Caldwell V Hill [2000] NSWCA 239; BHP Steel (JLA) Pty Ltd v Khan (No 2) [2001] NSWCA 269) DECISION : See par 11.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40117/01 MASON P

Thursday 7 February 2002 TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF SYDNEY AND ANOR v Paul Martin HOGAN (No 2)

JUDGMENT 1 MASON P: On 15 February 2001 the respondent obtained judgment against the appellants for $2,960,732.70. This followed a verdict by a jury awarding damages for assault/battery and negligence. The presiding judge was Wood CJ at CL. 2 The defendants sought and obtained an immediate stay that was conditional upon lodging a notice of appeal promptly, prosecuting the appeal with due diligence, and paying $500,000 to the plaintiff within 21 days. 3 The appeal was successful (see The Trustees of the Roman Catholic Church v Hogan [2001] NSWCA 381). The Court set aside the judgments ordered on 15 February 2001, ordered a new trial as to damages and made orders relating to the costs of the appeal. The costs order in favour of the plaintiff at trial was allowed to stand. The costs of the new trial will be at the discretion of the Court. 4 Pursuant to the orders made by Wood CJ at CL a cheque in the sum of $499,245.90 was sent to the respondent's solicitors by letter on 7 March 2001. (The balance of $754.10 was apparently forwarded to the Health Insurance Commission in satisfaction of its Notice of Charge.) 5 The successful appellants now seek restitution with interest at Schedule J rates. The basis of the appellants' entitlement is explained in this Court's recent judgment in Heydon v NRMA & Ors, Bateman & Ors v NRMA & Ors, Morgan & Ors v NRMA & Ors (No 2) [2001] NSWCA 445. 6 The respondent acknowledges the appellants' prima facie entitlement to restitution. It is however resisted on particular grounds. 7 First, it was submitted that the conditional stay granted by Wood CJ at CL on 15 February 2001 is not yet spent. I cannot accept this submission, because his Honour's reasons make it entirely clear that the stay was granted in aid of the foreshadowed appeal to this Court. That appeal has been heard and finally determined. 8 Secondly, the respondent relied upon the fact that application for special leave to appeal to the High Court was filed on 26 November 2001. This presents no answer to the appellants' entitlement to the order sought. In my view it is incumbent on this Court to bring the proceedings in this Court to finality, including finality as regards ancillary matters such as that being presently addressed. The pendency of an application for special leave to appeal in circumstances such as the present provides no answer to the appellants' entitlement that stems from this Court's final order. It might be relevant to any application to stay execution of such an order, but that matter is not before me. In noting this, I do not wish to be taken to be expressing any view as to the outcome of any such proceeding. For one thing, it would require a careful examination of the respondent's present financial circumstances relevant to his capacity to satisfy the order. No such evidence has been filed in this present application. 9 Thirdly, the respondent pointed to the undisturbed finding in his favour as to liability: the new trial is limited to damages. In my view this is no answer to the appellants' claim (see TCN Channel 9 Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381; Caldwell V Hill [2000] NSWCA 239; BHP Steel (JLA) Pty Ltd v Khan (No 2) [2001] NSWCA 269). This is not to deny that the respondent has a prospect of recovering damages, even substantial damages. But his entitlement to do so is entirely in issue and the new trial that has been ordered means that the favourable assessment of the jury in the first trial cannot be invoked in his favour. 10 Fourthly, the respondent invoked Part 5 Division 2 of the Supreme Court Act. This allows the Court to order interim payments of damages in various situations, including those where a plaintiff obtains judgment against a defendant for damages to be recovered; and where the Court is notified that, if the action proceeded to trial, the plaintiff would obtain judgment for substantial damages against the defendant. In my view, this possibility is not apt to be taken into account in a restitution application such as the present, a fortiori where no advance notice was given and no agreement as to the extent of likely recovery of damages is forthcoming. Any application for interim payment should be made in the Common Law Division. If an order were there made then it would be open for the restitutionary order I am about to make to be stayed conditionally to the extent necessary to accommodate the effect of the interim payment order. Once again, I am not to be taken to be expressing any opinion as to the merits of such an application. 11 I make the following orders: 1. Order the opponent to repay to the claimants $499,245.90 plus interest in accordance with Schedule J rates from 8 March 2001 to date of repayment. 2. Opponent to pay claimants' costs of the motion.