Bentran Pty Ltd v Sabbarton

Legislative Foundation and Principles Relating to Granting a Stay 7Under s 43 of the Act the lodgment of an internal appeal, such as the appeal in the present case, does not affect the operation of the decision appealed. Nonetheless, under s 43(3) the Tribunal may stay the operation of a decision pending the determination of the appeal. Section 43 provides in part: (1) This section applies to the making or lodgment of any of the following (a pending general application or appeal): ... (c) an internal appeal. (2) A pending general application or appeal does not affect the operation of the decision to which the application or appeal relates, or prevent the taking of action to implement the decision, unless the Tribunal makes an order staying or otherwise affecting the operation of the decision. (3) The Tribunal may make such orders (whether with or without conditions) staying or otherwise affecting the operation of a decision to which a pending general application or appeal relates as it considers appropriate to secure the effectiveness of the determination of the application or appeal. 8A stay affecting the operation of a decision will in many cases involve staying the orders made by the Tribunal which give effect to the decision. 9As a result of the use of "may" in s 43(3) of the Act, the Tribunal has a discretion whether or not to grant a stay. That discretion must be exercised judicially and general principles which apply in relation to the exercise of that discretion can be derived from the terms of s 43(3) itself. Additional guidance can be obtained from the considerations applied by the Courts in deciding whether or not to grant a stay pending an appeal. The applicable principles can be summarised as follows: (1)Generally a successful party is entitled to the benefit of the decision or orders that the party has obtained at first instance, but a stay may be granted where the appellant has demonstrated an appropriate case to warrant the exercise of discretion in its favour - s 43(2) and (3) of the Act, Kalafair Pty Limited v Digitec (Australia) Pty Limited (2002) 55 NSWLR 737 at [28], Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 at [7]. (2)In practical effect the onus is on an applicant for a stay to make out a case that it is appropriate for the court to make such an order - Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694, Vaughan v Dawson [2008] NSWCA 169 at 16. (3)The mere lodgment of the notice of appeal is insufficient, of itself, to demonstrate that it is an appropriate case to warrant the granting of a stay - s 43(2) and (3) of the Act, Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694, Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 at [7]. (4)An order staying the operation of a decision or orders will generally be appropriate where such an order is reasonably necessary to secure the effectiveness of the appeal - s 43(3) of the Act. This is similar to, if not the same as, the considerations applied by the Courts that where there is a risk that an appeal will prove abortive if the appellant succeeds and a stay is not granted or where unless a stay is granted an appeal will be rendered nugatory, the discretion should generally be exercised in favour of granting a stay - Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 695. (5)The Tribunal may also take into account the strength or otherwise of the case of the party seeking the stay. This consideration may be particularly relevant when it is plain that an appeal, which does not require leave, has been lodged without any real prospects of success and simply in the hope of gaining a respite against immediate execution of the decision - Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 695. (6)The Tribunal's power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal specifies - ss 43(3) and 58 of the Act. (7)In exercising the discretion the Tribunal will also weigh the balance of convenience and the competing rights of the parties and may impose appropriate conditions so as to achieve a result that is fair to all parties - Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694, Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 at [21] and [22]. (8)Finally, the overriding principle in an application for a stay is to ask what the interests of justice require - New South Wales Bar Association v Stevens [2003] NSWCA 95 at [83] and Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 at [18].

Application in the Present Case 10The appellant in this case has lodged a notice of appeal in which it seeks leave to appeal. It has asserted that payment of the amount the subject of the order appealed against should not be required pending the appeal. The only basis put forward is that: It is not appropriate to expect a payment to be made while we are claiming this judgement to be unfair & unreasonable. 11Having regard to the principles set out above, the respondent to this appeal should be taken to be, at least prima facie, entitled to the benefit of the decision and order made by the Tribunal below. The onus is on the appellant to make out a case that it is appropriate for the Tribunal to grant the stay. The mere fact that the appellant is seeking leave to appeal and has filed a notice of appeal is insufficient, of itself, to demonstrate that this is a case in which it is appropriate to grant a stay. The appellant has not pointed to any circumstances which would make a stay of the order reasonably necessary to secure the effectiveness of the appeal. In particular there is nothing to suggest that the appeal would be rendered ineffective or nugatory if the appellant were required to pay $1,678 to the respondent immediately. If the Appeal Panel grants leave and upholds the appeal finding that the order should not have been made, the $1,678 can be repaid by the respondent to the appellant. There is nothing to suggest that the appellant cannot pay that amount or that the respondent could not repay that amount if the application for leave to appeal and the appeal were successful. 12The only order appealed against is an order for the payment of a relatively small sum of money by the appellant. The appellant has put forward no sufficient basis for concluding that the balancing of the competing rights favours granting a stay of the Consumer and Commercial Division's order. Similarly, the balance of convenience does not appear to the Panel to support the granting a stay. The appellant has not put forward any reason of substance why the interests of justice require that a stay be granted. 13Accordingly, the application for a stay should be refused.

Renewal of Interlocutory Applications 14It should be noted here that an application for a stay of an order pending appeal is an interlocutory application which may, in appropriate circumstances, be made again. The general position is as follows: (1)there is no res judicata or issue estoppel that prevents an interlocutory order for a stay from being revisited and varied; (2)the interests of justice require, however, that such a renewed application should be founded on a material change in circumstances or discovery of new material,

• see Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46, Serobian v Commonwealth Bank of Australia [2009] NSWCA 309 at [22]. 15Accordingly, the appellant in the present case would not be precluded from making a fresh application for a stay if the circumstances materially changed or if there were new material so that there was a sufficient foundation for a stay to be granted in accordance with the principles set out above.

Order 16The order of the Appeal Panel is that the appellant's application for a stay is refused. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 07 August 2014