NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v ROBERTSON [1994] NSWCA 227

NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v ROBERTSON [1994] NSWCA 227

A stay of execution should be granted pending appeal, without requiring payment by the applicant at this stage, as there is a serious issue to be determined at appeal regarding liability, and a risk that recovery of monies paid would be difficult if the appeal succeeds.

Parties
Claimant: New South Wales Insurance Ministerial Corporation; Opponent: Tracey Robertson
Jurisdiction
Australia
Judgment Date
19 December 1994
Procedural Posture
Stay Application Pending Appeal / Court of Appeal – Interlocutory Application for Stay of Execution Pending Appeal
Outcome
Stay of execution granted pending hearing and determination of the appeal; expedition of the appeal ordered.
Legal Topics
Stay of Execution of Judgment, Appeals – Stay Applications, Contributory Negligence, Damages – Motor Vehicle Accident, Utility of Appellate Process
Practice and Procedure Personal Injury Tort Law Stay of Execution of Judgment Appeals – Stay Applications Contributory Negligence Damages – Motor Vehicle Accident Utility of Appellate Process

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Parties

New South Wales Insurance Ministerial Corporation

Claimant

Tracey Robertson

Opponent

Procedural Posture

Stay Application Pending Appeal / Court of Appeal – Interlocutory Application for Stay of Execution Pending Appeal

Legal Issues

  1. 1 Whether a stay of execution should be granted pending appeal
  2. 2 Whether the successful party should be deprived of the fruits of judgment prior to determination of the appeal
  3. 3 Who bears the onus to prove risk of recoupment after payment

Ratio Decidendi

A stay of execution should be granted pending appeal, without requiring payment by the applicant at this stage, as there is a serious issue to be determined at appeal regarding liability, and a risk that recovery of monies paid would be difficult if the appeal succeeds.

Court Disposition

Stay of execution granted pending hearing and determination of the appeal; expedition of the appeal ordered.

Orders

  • Stay execution upon the orders of Leslie AJ of 12 December 1994, until the hearing and determination of the appeal or until further order.
  • Order expedition of the hearing of the appeal, Category B, to be heard in the first two months of the new Term in 1995.