New South Wales Court of Appeal CITATION : Wyong Shire Council v Randall & 2 Ors [2003] NSWCA 143 revised - 6/06/2003 HEARING DATE(S) : 28/05/2003 JUDGMENT DATE : 28 May 2003 JUDGMENT OF : Santow JA DECISION : Stay not granted; Costs of to-day, 28 May 2003, and of Monday, 26 May 2003, necessitated by the matter having failed to be heard because of some misunderstanding that it was to be dealt with in Newcastle, should be paid by the Claimant CATCHWORDS : PROCEDURE -- Stay of Judgment awarding damages pending leave to appeal to Court of Appeal -- relevant factors WYONG SHIRE COUNCIL (Claimant) PARTIES : LESLIE EDWARD RANDAL (First Opponent) THE ENTRANCE BOWLING CLUB LIMITED (Second Opponent) SCOTT LAING t/as Laing Concretors Pty Limited (Third Opponent) FILE NUMBER(S) : CA 40344/03 P Cummings (Claimant) COUNSEL : A Fennell (First Opponent) Q Pieper (Second Opponent) B Staggs (sol.) (Third Opponent) Hunt & Hunt (Claimant) SOLICITORS : Nash, Allen, Williams & Wotton (First Opponent) Henry Davis York (Third Opponent) IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40344/03 SANTOW JA 28 MAY 2003 [revised 6 June 2003] WYONG SHIRE COUNCIL v Leslie Edward RANDALL & 2 Ors Judgment 1 This is an application for a stay of a judgment by Gibson DCJ in the District Court for $29,715, including $1800 for past out-of-pockets and $2000 for future out-of-pockets. The proceedings in very broad summation concerned the following circumstances. 2 The first opponent as plaintiff took proceedings against Wyong Shire Council, which is the claimant before me. Those proceedings were for damage as resulted from the plaintiff treading on nails on a concrete drain in an area in which the Council had undertaken responsibility for maintenance, being a grassed field adjoining a bowling club. The plaintiff tripped as a result and broke his arm. Council is sued as occupier. 3 There were other defendants; namely, the bowling club itself and a builder who had constructed a vertical wall adjoining the bowling club and contiguous to the end of the concrete drain. 4 Gibson DCJ in a careful and closely written document concluded in favour of the plaintiff and against the first defendant Council, awarding damages as I have described. 5 Although the actual damage amount is modest, there are costs involved of some $200,000 still to be assessed. The claimant did not and indeed could not argue strenuously against the proposition that, if those costs were paid upon assessment direct to the relevant legal advisers, there would then be any difficulty about their disgorgement. Disgorgement would only arise should leave to appeal be granted and the appeal ultimately succeed. That said, I record that the claimant did continue to oppose a stay even of the cost orders. 6 The case put by the claimant for a stay comes down to this. The original plaintiff is a man in his late seventies, a pensioner owning no freehold property and, as it turns out, in hospital, seriously ill, suffering from cancer. That last emerges from an affidavit filed on behalf of the first opponent dated 16 May 2003 by his solicitor Mr Allen. Thus, it can be taken as not disputed that were the verdict amount handed over, there is some risk that it would not be available in full should the claimant's leave to appeal succeed and the appeal itself succeed. It also cannot be disputed that if it is not paid over, until appeal proceedings conclude, or leave to appeal is denied, that delay may mean that the opponent will not enjoy the benefit of the verdict for very long, if at all. 7 The first is a factor of some weight favouring a stay, but has to be weighed against other factors bearing upon that matter, including the state of health of the opponent. But most relevant is the degree of strength of the case for obtaining leave to appeal and then succeeding upon the appeal itself. 8 The grounds of appeal, in so far as they deal with matters of contribution, are not relevant to the stay, save as possibly indicating a reason why the discretion to grant leave to appeal might be exercised in favour. I should note at this point that it is common ground that leave to appeal will be required, given the matter at issue amounts to less than $100,000. 9 Turning to the other grounds in the draft notice of grounds of appeal, they first consist of an allegation that her Honour erred in refusing to admit certain reports emanating from employees of the Council who had engineering or like qualifications, and which were said to go to how the nails found themselves on the concrete drain. The discretion exercised by her Honour is of course subject to the normal barrier in the way of its reversal on what is a discretionary matter upon appeal. Apart from that, there may be difficulties in the fact that these reports were in support of a report by Mr Manche who, it appears, withdrew his report on the basis that he was himself not an expert. Furthermore, the first opponent contends that even if the reports were admitted, the reasoning of the trial Judge is that their acceptance would not alter the ultimate case for liability but might affect any cross-claim or contribution claim between the various defendants. Since there is no suggestion that the first opponent would be thereby prejudiced, in so far as prima facie the first defendant is entitled to his verdict, matters of contribution could hardly detract from that case. 10 Leaving aside the matters of evidence, the other grounds of appeal relate, firstly, to a matter of inference. That is, whether her Honour erred in finding that members of the public using pedestrian services on a public path in broad daylight should not be on the look-out for unusual dangers such as nails. Her Honour dealt with those matters comprehensively in her judgment. While matters of inference may be upset on appeal, this is a matter of inference inextricably bound up with its factual underpinning, where the trial Judge had an advantage in viewing the evidence directly and in hearing the witnesses. 11 In particular, her Honour's reasoning seems to be that these nails (eight or nine) were an unexpected hazard and not one for which the ordinary pedestrian would have any time to prepare, particularly at midday when there would be no significant shadow cast by the nails: see generally paras 123-4 of the judgment. It is perhaps significant that those from the Council's gardening and maintenance section who were meant to be alert to the nails apparently failed to notice them, or if they did notice them, simply left them there. 12 Paragraph 5 of the draft grounds of appeal states that there was no basis for the finding that the nails had been affixed to the slab for one or more years. To the contrary, evidence was given, which her Honour accepted, as to the rusty appearance of the nails from those who had viewed them and she of course had the advantage of seeing coloured photographs. The draft appeal ground 7 based on this aspect of the reasons is thus difficult to maintain. 13 It will be apparent from the foregoing recitation that the grounds for leave to appeal appear weak, as also the prospects of an appeal if leave were granted. In saying that it must be readily acknowledged that one's view of prospects in an application such as this is inherently one of impression, though nonetheless highly relevant to the exercise of the discretion whether or not to grant a stay. 14 There are other factors which I also should mention. The history of these proceedings indicates that there has been already a delay of some twelve months adding to the time the plaintiff will be out of his money. One occasion for delay seems to have been the responsibility of the Council, though not the others. However, whatever be the responsibility for that 12 month delay, there is no suggestion that that responsibility was the original plaintiff's. That emphasises the hardship to the plaintiff from yet further delay in being kept out of his judgment. 15 Then there is the fact that some part of the judgment is for past out-of-pocket expenses as well as future out-of-pockets, which latter may well have to be paid soon. This is quite apart from the legal costs. One may fairly ask why the plaintiff should be kept out of those sums, or the legal advisers required to fund not only past costs but the costs of an appeal, with no means from the verdict to fund it. 16 I expressed some distaste for the suggestion that, as the matter had proceeded up till now without the aid of any judgment to fund the plaintiff's legal costs, there was no evidence to suggest that the legal advisers might not continue on the same benevolent route. That is not a suggestion which befits the Council. These arguments are being directed to forestall paying a very modest amount to the successful Plaintiff, when now seriously ill and in hospital, when prospects of leave seem weak, though they could not be totally discounted. Insofar as costs are concerned, being the larger figure, its disgorgement is concededly not at practical risk. I consider that the application for the stay is quite unmeritorious. 17 Costs should follow the event and I order that the costs of today, 28 May 2003, and Monday 26 May 2003 necessitated by the matter having failed to be heard because of some misunderstanding that it was to be dealt with in Newcastle should be paid by the claimant. ********** Last Modified: 06/12/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.