Workers' Compensation Board of Queensland v Vortman
[1997] QCA 294
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Workers' Compensation Board of Queensland v Vortman[1997] QCA 294
- Add to List
Workers' Compensation Board of Queensland v Vortman[1997] QCA 294
Workers' Compensation Board of Queensland v Vortman[1997] QCA 294
COURT OF APPEAL
PINCUS JA
DAVIES JA
BYRNE J
CA No 5113 of 1997
THE WORKERS' COMPENSATION BOARD
OF QUEENSLAND Applicant
and
FRANS VORTMAN Respondent
BRISBANE
DATE 14/07/97
JUDGMENT
PINCUS J: This is an application for a stay of execution made in relation to a judgment of the District Court. By that judgment given on 23 May 1997, the respondent Mr Vortman was to recover the sum of $80,000 and costs. A notice of appeal was filed on 10 June 1997.
The District Court judgment was entered on a summons filed by Mr Vortman seeking the judgment which is challenged in this appeal on the basis that there had been a compromise between the parties of an action for damages for personal injuries. That compromise was entered into in the course of the trial in the District Court which took place on 17 and 18 February 1997.
In the reasons given for the judgment it is explained that about a month after the compromise detailed observations were made of the respondent's movements which were said to be inconsistent with the explanations given by the respondent in his evidence on 17 February 1997. The primary Judge concluded that the description given by the respondent at the trial did not accurately describe his condition when he was observed about a month later. His Honour said, "Over about a four and a half week period there has been an apparent change in his physical capacity."
Nevertheless the Judge entered judgment in the sum of $80,000 by way of enforcement of the compromise, for the reasons that the uncertainty and stress which might attend an action had, perhaps, dissipated between the trial and the observations about a month later, that it was difficult to know what matters were taken into account by the Workers' Compensation Board (the applicant before us) in agreeing to the compromise and that if the matter had continued to judgment after trial, that judgment could only be challengeable on appeal, subject to the possibility of adducing fresh evidence. The Judge was not satisfied the respondent had deliberately misrepresented his injury, or that any misrepresentation was an inducing cause of the compromise.
It is unnecessary to attempt to assess the appeal's chance of success and it seems enough to say that, in view of the relative brevity of the period during which it appears the respondent's physical condition markedly improved, and the apparent absence of any explanation of this improvement emanating from the respondent's side of the record, one could not characterise the appeal as frivolous or hopeless.
The material shows that the respondent's financial position is dubious and there must be a risk that if the appeal succeeds the amount in issue will not be refunded. If that were to occur then, even if successful, the appeal would be nugatory. That is a circumstance which, according to the judgment of Mr Justice Dawson in The Commissioner of Taxation of the Commonwealth of Australia v. The Myer Emporium Limited [No. 1] (1986) 160 C.L.R. 220 at 223, generally justifies a stay.
The respondent, resisting the application for a stay, has referred us to the decision of this Court in Williams v. Chesterman & Anor (C.A. No. 74 of 1992, 23 June 1992) in which in somewhat similar circumstances a stay was refused. Reference to the reasons of the Chief Justice in that case shows, however, that there was a dispute of fact on the question whether if the appeal was successful the plaintiff would be able to refund the amount of the judgment. The Court held that the party applying for a stay had not satisfied the onus of proof.
Here there appears to be no issue about the ability of the respondent, successful below, to refund the money if it were paid over. On the other hand, it does not appear to be the applicant's case that no injury was suffered and it is at least probable that if the appeal succeeded and the matter was sent to trial the plaintiff would recover some damages.
Mr Morton for the applicant has informed us that a sum of about $32,000 is refundable to the Board. In these circumstances it is difficult to know precisely what order to make, but in my opinion the proper order would limit the stay to the sum of $20,000.
That is, I would order that, except as for the sum of $20,000, execution of the judgment be stayed and I would further order that the costs be the applicant's costs in the appeal.
DAVIES JA: I agree.
BYRNE J: I agree.