Alexander v Cambridge Credit Corporation Ltd [2010] NSWIRComm 40 | Case summary

1 HER HONOUR: The appellant seeks a stay of the orders of Backman J in the matter of Bradley Smith v Commissioner of Police (No.4) [2010] NSWIRComm 14. The orders are as follows: 126 The Commission makes the following findings and orders: (1) The applicant's removal under s 181D(1) of the Act was harsh. (2) The applicant is reinstated to the NSW Police Force on and from the date of this Decision on the following terms and conditions: (a) the applicant will not return to active duty in any capacity but is to take immediate steps to apply for a medical discharge (b) the applicant shall not receive any back pay or compensation from the date of his removal until the date of this decision in recognition of the seriousness of the misconduct which formed the basis of his removal under s 181D(1) of the Police Act (c) immediately upon his reinstatement the applicant will remain on suspension with pay (d) should the applicant be unsuccessful in his application for a medical discharge he will resign forthwith from the NSW Police Force

2 The principles relevant to an application for a stay have been conveniently 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 an appellant must provide an adequate reason or demonstrate an appropriate case for a stay. There is no obligation to make out a "special" or "exceptional" circumstance (Cambridge Credit Corporation). 4 In accordance with the steps outlined at [19] by Wright J, President in Transport Industry - Waste Collection and Recycling (State) Award, I am satisfied the filing of itself does not allow for the grant. I accept the Commission has a discretion whether or not to grant the stay and it is accepted by the appellant in this case that they have to demonstrate a proper basis for a stay that is fair to the respondent. 5 In the exercise of discretion, the balance of convenience and the competing rights of the parties need to be considered and weighed. 6 In that consideration, I look at whether there is a prospect the appellant has an arguable case in its grounds of appeal. Reliance in this appeal is placed on the decision recently handed down by the New South Wales Court of Appeal in Director-General New South Wales Department of the Industrial Relations Commission of New South Wales [2010] NSWCA 47 (Casari). In that judgment, the Court found an error on the face of the record by the Full Bench of the Industrial Relations Commission in the orders given under s 89 of the Industrial Relations Act 1996. The appellate court in coming to final conclusion gave consideration to the power of the Commission to order re-employment as well as the power of the Commission to order a person to resign. 7 In submissions the respondent contends, in relation to the applicability of the case of Casari, to these circumstances and distinguishes the application from the principles enunciated in Casari. The respondent asserts the order overturned before the appellant court in Casari was under s 89(2) and such principles cannot be applicable to her Honour's orders which were issued under s 89(1). Here the appellant had the benefit of an order which order her Honour then suspended. The respondent has grounds to distinguish Casari especially in a circumstance where a re-instatement order under s89(2), it could be argued, could put the appellant back on sick leave. 8 I am of the view the appellant has grounds to advance an appeal against the orders of her Honour. Notwithstanding the distinguishing features relied upon by the respondent there is an arguable ground on appeal. However, that does not resolve the issue before me. 9 The respondent raises a number of other matters that must be considered in the process of weighing up the circumstances of each party. It particularly puts before me an affidavit directing the Commission's attention to the personal circumstances of Mr Eade-Smith. They are, on the reading, serious and very sad personal circumstances. It appears in a circumstance where he has a medically defined illness, and additional personal problems, these together have led him into dire financial straits. However, these circumstances really addresses the effect of the second limb of her Honour's order related to the suspension of the reinstatement order and the associated order that on suspension the applicant would receive full pay. I have been assured Mr Eade-Smith will continue to receive workers compensation payments pending the appeal. 10 The respondent further argues it has the right to the fruits of its victory from the first instance decision and contends the condition imposed in 2 (c) of her Honour's order, would not inconvenience or prejudice the appellant unduly, or at all. I do not accept that proposition. 11 Put into the mix and weighted into the circumstances is the fact that if the reinstatement order is stayed, the medical retirement process (which the respondent wants to advance and which the orders given by her Honour have the effect of allowing) will be again halted. I do not accept this a persuasive argument to refuse the stay in the circumstances. If the respondent succeeds in the appeal that circumstance could be restored. Therefore, I intend to grant the stay.

Alexander v Cambridge Credit Corporation Ltd

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Judgment (15 paragraphs)

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Cases Cited (6)