Alexander v Cambridge Credit Corporation Ltd [2010] NSWIRComm 128 | Case summary

1 HER HONOUR: The appellant seeks a Stay of the Orders of Bishop C in the matter of David Eaton and the Commissioner of Police ([2010] NSWIRComm1035). The orders are as follows: 1. Pursuant to s.89(1) of the Industrial Relations Act 1996, the respondent, Commissioner of Police, shall reinstate the applicant, David Eaton, to his former position of Probationary Constable at Parramatta Police Station on terms no less favourable to those which would have applied had Mr Eaton not been placed on restricted duties in May 2008. The reinstatement of Mr Eaton shall operate from the date of dismissal, 22 July 2009. 2. The reinstatement of the applicant, David Eaton, shall be effected no later than 7 days from today's date. 3. Pursuant to s89(3), (6) and (8) of the Industrial Relations Act 1996, the respondent, the Commissioner of Police shall pay to the applicant, David Eaton, an amount equivalent to 32 weeks of the weekly rate of pay applicable as at the date of dismissal, less any gross income earned during that period in any alternate capacity (that is between 16 November 2009 and 30 June 2010). 4. Pursuant to s89(4) of the Industrial Relations Act 1996, the applicant's (David Eaton) period of service in the NSW Police shall be treated as not to have been broken by the dismissal, but the period of the 16 week non-payment will not be counted as service for the purposes' of long service leave. 5. Pursuant to s89(8) of the Industrial Relations Act 1996, the following conditions shall apply to the reinstatement of Mr Eaton: i. Reinstatement is subject to the re-admission by Charles Sturt University of Mr Eaton to the Associate Degree of Policing. Provided that the Commissioner of Police shall take all steps necessary to expedite and assist that re-admission. ii. Mr Eaton is be returned to duty with the NSW Police pending re-admission to the ADPP. iii. Mr Eaton is to undertake such further training and receive such further supervision as is considered necessary in the light of the circumstances of this case and the findings I have made. 6. These orders shall take effect on and from 30 June 2010. 2 The principles relevant to an Application for a Stay have conveniently been recited by Wright J, President, in Transport Industry - Waste Collection and Recycling (State) Award (2001) 102 IR 192 where his Honour said at [18]-[19]: Consideration and conclusion 18 The principles relevant to the grant of a stay pending the hearing of an appeal against a decision of a member of the Commission pursuant to s 190 of the Act are now well settled. See, for example, the judgment of the Court of Appeal in Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685, as adopted by the Industrial Commission of New South Wales in Court Session in Water Industry Salaried Officers' Union v Professional Officers' Association (NSW) (1987) 22 IR 178. See also the recent judgment in Green v Brown [2000 NSWIRComm 222. It is clear that special circumstances are not required for the grant of a stay, it being sufficient that the applicant demonstrates a reason or an appropriate case to warrant the relevant exercise of discretion. Although that very limited criterion has been established here, nevertheless, as the authorities make clear, that consideration may be merely the initial consideration as to the grant of the stay. In other words, should that limited criterion or test not be satisfied then the stay application fails in limine . However, should it be satisfied then there may very well be other factors which require consideration. These considerations are helpfully set out in the detailed discussion of the principles set out in the judgment of the Court of Appeal in the first case referred to (at 694 - 695) in the following terms: There are other principles to be kept in mind. The onus is upon the applicant to demonstrate a proper basis for a stay that will be fair to all parties: Trlin v Marac Finance Australia Ltd (unreported, Court of Appeal, 4 March 1985). The mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears: see Supreme Court Rules , Pt 51, r 10; Waller v Todorovic (unreported, Court of Appeal, 21 December 1979). The Court has a discretion whether or not to grant the stay and, if so, as to the terms that would be fair. In the exercise of its discretion, the Court will weigh considerations such as the balance of convenience and the competing rights of the parties before it: Attorney-General v Emerson (1889) 24 QBD 56. Where there is a risk that if a stay is granted, the assets of the applicant will be disposed of, the court may, in the exercise of its discretion, refuse to grant a stay: cf Clyne v Deputy Commissioner of Taxation (1982) 56 ALJR 857. Sometimes as a condition of the grant of a stay, where funds are available, a court will impose on the applicant the payment of the whole, or part, to the judgment creditor: Andrews v John Fairfax & Sons Ltd [1979] 2 NSWLR 184 ... Two further principles can be mentioned. The first is that where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay ... Thus, where it is apparent that unless a stay is granted an appeal will be rendered nugatory, this will be a substantial factor in favour of the grant of a stay ... Secondly, although courts approaching applications for a stay will not generally speculate about the appellant's prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them considering the specific terms of the stay that will be appropriate fairly to adjust the interest of the parties, from making some preliminary assessment about whether the appellant has an arguable case. This consideration is protective of the position of a judgment creditor where it may be plain that an appeal, which does not require leave, has been lodged without any real prospect of success and simply in the hope of gaining a respite against immediate execution upon the judgment. 19 I consider that the following considerations derived from the discussion in the Cambridge Credit case are those relevant to apply in this matter: (1) The mere filing of an appeal will not of itself provide a reason or demonstrate an appropriate case nor will it discharge the onus which the applicant bears. (2) A court has an appropriate discretion whether or not to grant the stay and as to the terms that would be fair if a stay be granted. (3) The onus is upon the applicant for a stay to demonstrate a proper basis for a stay that will be fair to all the parties. (4) In the exercise of its discretion all considerations including the balance of convenience and the competing rights of the parties need to be considered and weighed. (5) Where there is a risk that the appeal will prove abortive or nugatory if the stay is not granted then the normal exercise of discretion will result in the grant of a stay. (6) Although, generally speaking, it is inappropriate in relation to an application for a stay to speculate as to the appellant's prospects of success, this does not prevent a court, in the context of considering the specific terms of the stay that will appropriately and fairly adjust the interests of the parties, from making a preliminary assessment as to whether the appellant has an arguable case. 3 It is agreed between the parties and it is well settled in law that an appellant must provide an adequate reason or demonstrate an appropriate case for the grant of a Stay of orders. There is no obligation to make out "special" or "exceptional" circumstance (Cambridge Credit Corporation). The filing of the Application for an Appeal does not itself allow for the grant of a Stay. I accept the Commission has a discretion whether or not to grant a Stay. 4 The parties have agreed that the Commissioner's Order No 1 (which is the order of reinstatement), Order No 2 (which allows the reinstatement to occur within seven days of the date of decision), Order No 4 (which allows for Mr Eaton's record be that of continuous service) and Order No 5 (which relates to Mr Eaton's ability to fully qualify as a police officer) be stayed. Only Order No 3 is the subject of this Stay Application. That is to say, the Application is made for a Stay of the learned Commissioner's limited order for back pay. 5 In a consideration of whether the Commission should Stay the order for backpay, it is necessary to consider the five grounds of appeal but in the context of the facts from which the Commissioner made her Decision. 6 Mr Eaton was a Probationary Constable serving out a probation period in the Parramatta Local Area Command of the Police Force. The Commissioner of Police terminated him on the grounds of his competence, particularly related to a number of police matters he had not fully attended to. There was a further ground relied upon by the Commissioner in that it was alleged Mr Eaton mislead his superiors through his use of two computers on which Mr Eaton recorded the matters for which he carried responsibilities. It was alleged he misled as to the existence of the two separate records thereby misleading his superiors as to the number of matters not fully attended to. 7 However, the learned Commissioner found, in his status as a Probationary Police Officer, Mr Eaton was given inadequate supervision and that in relation to the misleading claims there was an acceptable explanation. The learned Commissioner, in her Orders determined, however, to allow Mr Eaton no back pay from the date of his termination on 22 July 2009 to 16 November 2009. It would appear, and I only make this as a comment, that the learned Commissioner saw no payment for a six month period of his backpay as a punitive determination for clearly some laxity in relation to Mr Eaton's paperwork procedures and determined he should be so disciplined for that laxity. 8 The effect of the Commissioner's Order No 3, therefore, was to allow a back payment of salary from 16 November 2009 to 30 June 2010 (the date of the Commissioner's Decision) after which the learned Commissioner ordered Mr Eaton's reinstatement within seven days. 9 Since termination, evidence revealed that in odd jobs, Mr Eaton had earned approximately $10,000 up until March 2010 when he then began full time service for the Army Reserve earning $700 per week. 10 The five grounds raised in the appeal are each directed to whether the Commission has jurisdiction to hear an unfair dismissal claim of a probationary constable. That issue was raised on appeal in Ferraris v Commissioner of Police (2006) NSWIRComm 243 but leave was not granted. This appeal raises the same issue, that is: whether s 88 of the Police Act 1990 ousts the Commission's jurisdiction to deal with a claim related to the appointment and dismissal of this Probationary Constable and perhaps the appointment and dismissal of all Police Officers. 11 A consequence of the reading and understanding the Grounds of the Appeal is that this Commission notes there is no challenge to the Reasons given by her Honour for the reinstatement of Mr Eaton. The learned Commissioner held the grounds for the termination were not sufficiently serious to give foundation to the termination of Mr Eaton. Rather, the appellant raises on appeal a jurisdictional challenge to the Decision and, if upheld, contends that would have the effect of nullifying the Commissioner's Orders. 12 This, I find, is a difficult matter. What I have before me is a set of facts which reveal the Police Commissioner is not challenging the reasons why the Commissioner gave an Order for the reinstatement of Mr Eaton. While I am prepared to accept that the Commissioner of Police has an arguable claim which it has raised on two separate occasions before the Commission and which issue has not gone before a Full Bench for determination in such a circumstance, I believe its arguable case should be aired and determined. However, given the particular circumstances of this case, I do not believe the jurisdictional argument should be used to deny Mr Eaton his rights to back pay given in the Commissioner's Determination the jurisdictional grounds relied upon on appeal were rejected and the reasons for the Commissioner's Order to terminate were also rejected (and are not a ground of the appeal). 13 The appellant, as to a Stay of the back payment order to the respondent, contends as to the balance of convenience, the Stay should be denied because the Commission could not be sure the respondent would repay and also the backpay order would be a nullity as a consequence of the appellant succeeding on appeal. However, Mr Eaton has, since June of this year, been in full time employment. The payment of a back pay does not affect the Stay of the Reinstatement Order. 14 The personal circumstances of Mr Eaton are before me. He did not gain full employment until March this year. While I have accepted the appellant has an arguable claim, I do not accept that even if successful, the Full Bench has only the option of declaring all the learned Commissioner's Orders a nullity nor do I accept that the appeal would, if this limited Stay be granted, be rendered nugatory. I have weighed the circumstance of both parties to the appeal. The appellant contended it may not retrieve the monies if it was fully successful in this appeal. I reject this proposition. Mr Eaton has wanted to serve as a law officer and now serves his nation in its Army. He has always shown a keenness to work and a great respect for the law. The appellant provides no evidence in support of this proposition. 15 I allow the Stay for Orders No 1, 2, 4, 5 and 6 of Commissioner Bishop's Decision of 30 June 2010. 16 I reject the application for an order for a Stay of Order No 3 of Commissioner Bishop. 17 The Appeal Book should have been filed on 23 August 2010. (Through no fault of either party, that has been delayed.) I will allow an extension of time to 9 September 2010 for the filing of the Appeal Books by the appellant. The further directions on appeal are confirmed.

Alexander v Cambridge Credit Corporation Ltd

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Judgment (13 paragraphs)

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Cases Cited (5)