Julia Farr Services Inc v Hayes [2003] NSWCA 142

New South Wales Court of Appeal

CITATION : Julia Farr Services Inc v Hayes [2003] NSWCA 142 revised - 2/06/2003 HEARING DATE(S) : 26/05/2003 JUDGMENT DATE : 26 May 2003

JUDGMENT OF : Santow JA DECISION : Application for stay of proceedings declined; Costs of the Opponent to be paid by the Claimant.

CATCHWORDS : PROCEDURE -- Application for stay of Court of Appeal judgment pending High Court appeal -- relevant factors including prospects of success on special leave to appeal. Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460 E M Baldwin & Son Pty Ltd v Plane (1998) 17 NSWCCR 434 CASES CITED : Jennings Construction Limited v Burgundy Royale Investments Pty Limited [No 1] (1986) 161 CLR 681 Julia Farr Services Inc v Hayes [2003] NSWCA 37 (28 April 2003, unreported) White and Anor v State Bank of New South Wales [2002] NSWCA 408 (11 December 2202, unreported) Wyong Shire Council v Shirt (1981) 146 CLR 40 PARTIES : JULIA FARR SERVICES INC (Claimant) Ethel Barbara HAYES (Opponent) FILE NUMBER(S) : CA 40011/03 COUNSEL : D Toomey (Claimant) M J Joseph, SC (Opponent) SOLICITORS : Church & Grace (Claimant) Alex Stuart & Associates (Opponent)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40011/03

SANTOW JA

26 MAY 2003 (revised 2 June 2003) JULIA FARR SERVICES INC v Ethel Barbara HAYES Judgment 1 By notice of motion filed on 20 May 2003 supported by affidavit the claimant seeks that execution of the judgment of this Court on 28 April 2003 and further execution of a judgment of Maguire CCJ on 20 December 2002 be stayed pending determination in the first instance of an application for leave to appeal to the High Court, or until the grant of such leave and the disposal of any such appeal by the High Court, whichever is the later, or until the High Court otherwise orders. 2 The relevant circumstances in broad summation are these. An action was originally brought in the Dust Diseases Tribunal of New South Wales sitting in Adelaide. Argument was put both in this Court and before the Dust Diseases Tribunal that the proceedings should not be heard by the Dust Diseases Tribunal but by the Supreme Court of South Australia. That argument failed both in this Court and before the Dust Diseases Tribunal. 3 The application was made in circumstances where the only parties before the Tribunal when the proceedings commenced before the Tribunal were resident in South Australia and where the torts sued upon were committed in South Australia and where the damage suffered as a result of those torts was suffered entirely in South Australia. I note in passing that there had been a defendant resident in New South Wales but proceedings had been discontinued against that defendant just before commencement of the actual hearing of the proceedings before the Dust Diseases Tribunal. 4 Essentially, the applicant, who was the defendant in the relevant proceedings, contended that because the grounds of appeal from the Supreme Court of South Australia, were it to have heard the matter, were wider, and may include not only a question of law (as with the Dust Diseases Tribunal) but also a question of fact, as was not available for appeal from the Dust Diseases Tribunal, that the matter should not be heard by the Dust Diseases Tribunal but by the Supreme Court of South Australia. It was argued that such rights of appeal were substantive and not merely procedural rights such that they should be dealt with in South Australia where the relevant torts had been committed. 5 On 20 December 2002 Maguire CCJ entered judgment for the opponent in the sum of $546,936.52. 6 Upon delivery of that judgment an oral application for a stay of that judgment was immediately made to Maguire CCJ on the ground that issues of significant complexity would be raised in any appeal. His Honour ordered a partial stay as to $346,936.52 of the judgment sum, on terms that the balance of the judgment sum, that is $200,000, was paid to the opponent, Mrs Hayes, within ten days and further that a notice of appeal in this Court was also filed in that ten-day period. 7 It can be taken that those matters were sufficiently complied with. 8 Mrs Hayes died in early March of this year. She did not have any dependants of minor age at the time of her death. Mrs Hayes' husband gave evidence at the trial on or around 21 December 2002 that at the time, he had ceased work as a rigger and scaffolder, to care for his wife. To date the balance of the judgment sum, that is $346,936.52 has not been paid to Mrs Hayes or her estate. 9 The matter proceeded by way of appeal to the Court of Appeal which handed down judgment on 28 April 2003; see Julia Farr Services Inc v Hayes [2003] NSWCA 37, unreported. The applicant was unsuccessful before the Court of Appeal. In particular, Giles JA who wrote the leading judgment concurred in by Spigelman CJ and Cripps AJA concluded that appellate rights, though having the potential to affect outcomes, were fundamentally of a procedural nature; [52]. 10 At [53] Giles JA concluded: "53. While the label "procedural" is allowed, it may be better to see appellate rights as governed by the law of the forum simply because they are a given for litigation in the forum. In the present case, to take up what I have earlier said, the only right of appeal from the Tribunal was that conferred by s32, and there was no right of appeal to the supreme court of South Australia." 11 At [60] and [61] Giles JA concluded, for the reasons there stated, that the appellant's arguments on the constitutional issue should not be accepted. I quote below the relevant passages which should be read with those that immediately precede. "60 Just as in that case there was no occasion to adapt the legislation to consistency with the legislative powers of the other States, so also in this case. In my opinion there is nothing offensive to the federal structure, requiring denial of the Tribunal's jurisdiction, in the existence of a restricted right of appeal from proceedings properly brought in the Tribunal compared to a wider right of appeal if the claim had been made in proceedings brought in some other court. Jurisdictional laws, including principles of forum non conveniens and the cross-vesting legislation, and choice of law determinations, accommodate to the federal structure. As Gaudron, Gummow and Hayne JJ made plain, denial of legislative competence is not called for.