New South Wales Court of Appeal CITATION : ITEK GRAPHIX PTY LTD v ELLIOTT [NO 2] [2002] NSWCA 274 FILE NUMBER(S) : CA 40069/01 HEARING DATE(S) : In Chambers JUDGMENT DATE : 19 August 2002 PARTIES : Itek Graphix Pty Ltd - Appellant Ann Elliott - Respondent JUDGMENT OF : Spigelman CJ; Sheller JA; Ipp AJA LOWER COURT JURISDICTION : District Court LOWER COURT 1825/99; 426/00 FILE NUMBER(S) : LOWER COURT Patten DCJ, Graham DCJ JUDICIAL OFFICER : COUNSEL : L King SC/R S Sheldon - Appellant S Norton SC/A Healey - Respondent SOLICITORS : Leigh Virtue & Associates - Appellant Bryden's Law Office - Respondent CATCHWORDS : PRACTICE & PROCEDURE - re-open appeal - Supreme Court Rules 1970, Pt 51 r26 - application for temporary stay pending special leave application - LEGISLATION CITED : Workers Compensation Act 1987 CASES CITED: TCN Channel Nine Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381 Production Spray Painting and Panel Painting Pty Ltd v Newnham (No 2) (1992) 27 NSWLR 659 DECISION : 1 The respondent to repay the appellant the sum of one hundred thousand dollars ($100,000) paid by the appellant pursuant to the stay ordered by Graham DCJ on 31 January 2001; 2 The respondent to pay the appellant interest on the said sum calculated by reference to Schedule J of the Supreme Court Rules from 23 March 2001 up to the date of this judgment; 3 The appellant to pay the respondent's costs of this application. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40060/01 DC 1825/99 DC 426/01 SPIGELMAN CJ SHELLER JA IPP AJA Monday, 19 August 2002 ITEK GRAPHIX LIMITED v ELLIOTT [NO 2] Judgment 1 THE COURT: On 11 February 2002 the Court upheld an appeal from a verdict and judgment made by Graham DCJ in the sum of $462,511 in favour of Ann Elliott against her employer, Itek Graphix Ltd. The verdict and orders made by Judge Graham and orders made by Patten DCJ extending the time for bringing Ms Elliott's claim for common law damages against Itek were set aside. The Court dismissed the application to extend time and ordered Ms Elliott to pay the costs of that application. Judgment was granted in favour of Itek and the Court ordered Ms Elliott's claim to be dismissed. The Court made no order for the costs of the trial. Further, the Court ordered Ms Elliott to pay Itek's costs of the appeal and granted her a certificate under the Suitors' Fund Act 1951 if she was otherwise entitled thereto. 2 By notice of motion filed on 28 May 2002 Itek sought, for the purposes of other orders sought in the notice of motion, that the appeal be re-opened and that in addition to the orders made on 11 February 2002 the Court order as follows: "(a) That the Respondent re-pay to the Appellant the sum of one hundred thousand dollars ($100,000) paid to the Respondent by the Appellant pursuant to the stay ordered by Graham DCJ on 31 January 2001; (b) That the Respondent pay the Appellant interest on the said sum calculated by reference to Schedule J of the Supreme Court Rules." 3 The application is supported by the affidavit of Paul H Macken, the solicitor for Itek having the conduct of the matter. From that it appears that on 31 January 2001 Graham DCJ granted a stay in respect of the verdict in favour of Ms Elliott on conditions including a condition that Itek pay to her $100,000 within twenty-eight days. That payment was made by a cheque to Ms Elliott sent to her solicitors under cover of a letter dated 23 March 2001. The amount has not been repaid. 4 Part 51 rule 26 of the Supreme Court Rules 1970 provides that where any step has been taken for the enforcement of a judgment or order and the Court of Appeal varies or sets aside the judgment or order, the Court may make such orders for reinstatement or restitution as the Court thinks fit. In the present case, such an order was not sought when the appeal was argued; see generally TCN Channel Nine Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381. A body of case law has accumulated which establishes that appropriate relief can be granted after the appeal has been dismissed; see Production Spray Painting and Panel Painting Pty Ltd v Newnham (No 2) (1992) 27 NSWLR 659 at 661. 5 Mr Macken's affidavit annexes correspondence between him and Ms Elliott's solicitors, Bryden's Law Office, from which it appears that her solicitors have filed an application for special leave to appeal from this Court's decision to the High Court. In a letter of 8 April 2002 Bryden's refer to entitlements that their client might have under the Workers Compensation Act 1987. 6 Both parties have filed written submissions. In the submissions filed on behalf of Ms Elliott, she concedes that the Court has the power to make the orders sought in the notice of motion but submits that those orders should have been sought as part of the appeal and that therefore Itek should pay the costs of the motion. The application for special leave to appeal to the High Court has been tentatively set down for hearing on 15 November 2002. Ms Elliott requests that the Court grant a temporary stay of its orders pending the hearing and determination of that application. Reference is made to TCN Channel Nine Pty Ltd v Antoniadis at 384 para 14, where the Court said that this Court could grant a temporary stay pending the hearing of an application for special leave. 7 In Itek's submissions, as we understand it, that request is opposed on grounds of convenience. 8 If Ms Elliott's claim had failed in the District Court there would have been no basis upon which she could have applied for a part-payment on account of the damages she claimed, pending the hearing of an appeal to this Court. Her claim for damages has failed in this Court, and judgment has been given in favour of Itek. A payment to a successful plaintiff of part of the damages awarded is commonly a condition of a stay of execution pending a defendant's appeal. That is not the present case where it was the unsuccessful plaintiff who seeks special leave to appeal from the order of this Court. We do not think this Court should grant a stay, the consequence of which would be that Ms Elliott would retain part of a verdict to which this Court says she is not entitled. 9 However, we think that Ms Elliott is entitled to her costs of this application which, if it had been made during the hearing of the appeal, would have rendered unnecessary this application. Orders 1 The respondent to repay the appellant the sum of one hundred thousand dollars ($100,000) paid by the appellant pursuant to the stay ordered by Graham DCJ on 31 January 2001; 2 The respondent to pay the appellant interest on the said sum calculated by reference to Schedule J of the Supreme Court Rules from 23 March 2001 up to the date of this judgment; 3 The appellant to pay the respondent's costs of this application. ********** 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.