Davies v Kyogle Council

1 On 26 March 2008, Boland J commenced to hear two notices of motion filed on behalf of the respondent in relation to summonses for production issued on the application of the applicant in mater No IRC 2238 of 2007 being proceedings brought pursuant to s 242 of the Workers Compensation Act 1987 by the appellant for reinstatement of an injured worker. 2 The appellant contended that the two notices of motion and also two affidavits had not been served in accordance with r 104 of the Industrial Relations Commission Rules 1996 ("the Rules"). The appellant sought that the notices of motion be dismissed. His Honour declined this application. 3 On 1 April 2008, the appellant filed an appeal pursuant to s 187(a) and s 188 of the Industrial Relations Act 1996 ("the Act") in the Industrial Court of New South Wales against what he contended was a decision by his Honour. The matters appealed against were stated to be: The decision that two affidavits and notices of motion dated and signed on 7 March 2008 by Mr Lee Smith (an employee of the Workplace Solutions Division of the Local Government and Shires Association of New South Wales), and filed on 7 March 2008 with the Industrial Relations Commission of New South Wales, have been served in accordance with the Industrial Relations Commission Rules 1996. 4 The grounds of appeal are: 1. There are no reasons for the decision overall. 2. His Honour's decision is inconsistent with the Industrial Relations Commission Rules 1996, Rule 104 Service upon individuals. 3. The Appellant adduced evidence proving that the two Affidavits and Notices of Motion of Mr Smith were not served in accordance with the Industrial Relations Commission Rules. 4. Alternatively His Honour's decision is inconsistent with the Acts Interpretation (sic) Section 76 Service by post. 5. The Appellant evidence adduced by the Appellant also sufficient to prove that the two Affidavits and Notices of Motion of Mr Smith were not served in accordance with the Acts Interpretation Act (sic). 6. His Honour's decision does not consider whether Mr Smith's two affidavits are consistent with Industrial Relation Commission Rules, Rule 123 Solicitors or agents. 5 The relief sought is: An Order: (a) setting aside the decision of His Honour; (b) striking out the two affidavits and Notices of Motion of Mr Smith referred to in E; (c) that the addresses of the Summonses to Produce dated 27 February 2008, Councillor Bennett, Mayor, Kyogle Council, and Mr Bill Gillooly, Secretary-General, Local Government and Shires Association of New South Wales, be ordered to comply with the Summonses to Produce; (d) for costs against the respondents to the appeal. 6 The appellant sought a stay of the decision made by Boland J. 7 The proceedings before his Honour were listed for further hearing on 2 April 2008. In these circumstances, I listed the application for a stay on 2 April 2008. I determined that the stay should be refused and advised the parties that it was inappropriate to further delay the proceedings before his Honour and that I would therefore provide my reasons for the refusal of the stay as soon as practicable. 8 Mr K Davies, who appeared in person, submitted that it was not in the interests of justice for the further hearing of the matter before his Honour to proceed before the appeal had been decided. He submitted that he was endeavouring, through notices to produce on various individuals, to obtain evidence in relation to the substantive matter before the Court. It was further submitted that the notices of motion filed by the respondent seeking to have the notices to produce struck out should not be considered until the question as to whether service had been effected properly, was determined. 9 Mr A Britt of counsel, who appeared for the respondent, opposed the granting of a stay. Counsel submitted that the respondent did not concede that a decision had been made by his Honour, but nevertheless, even if there was a decision, it was clearly an interlocutory matter and not a matter which disposed of the proceedings. 10 Mr Britt contended that in exercising its discretion, the Court must weigh considerations such as the balance of convenience and the competing rights of the parties before it. If the stay was granted, there would be a real risk that the substantive hearing of the matter, which has been set down for hearing over a number of days, would need to be vacated which would cause inconvenience to all parties and witnesses. Counsel submitted that the appellant had little prospects of success. Firstly, because the appeal does not raise substantial issues of principles or has wider implications for the jurisprudence of the Commission and secondly, leave to appeal would not be granted since leave will very rarely be given to appeal against an interlocutory procedural decision. Relevant Principles 11 For the purpose of the stay application, I propose to adopt the principles set out by Wright J President in Transport Industry - Waste Collection and Recycling (State) Award (2000) 102 IR 192 in determining this application. At [18] his Honour said: 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) 102 IR 30. 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:

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. Consideration 12 It is regularly observed by Members of this Commission, when considering an application for a stay, that it is for the applicant for the stay to demonstrate why a stay should be granted in the particular circumstances which arise for consideration. 13 I am not satisfied that the appellant has met the onus in this case. On the material before the Court, the Court cannot be satisfied that there is any reason sufficient to grant a stay or an appropriate case to warrant the relevant exercise of discretion. No evidence was provided to support the basis of the stay. Secondly, the parties were present in Sydney on 2 April 2008 for the hearing in respect of the notices of motion of the respondent concerning the summonses for production and the applicant's motion alleging bias. The cost of the proceedings before his Honour would have been wasted if the stay was granted. 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. 14 In exercising its discretion, the Court must weigh considerations such as the balance of convenience. I agree with Mr Britt's submissions that if a stay were granted, there would be a real risk that the substantive hearing of this matter, which had already been fixed for hearing, would need to be vacated causing inconvenience to the Commission, parties and witnesses. 15 In my view, the appeal has little prospects of success. First, the appeal has been brought before the Industrial Court of New South Wales. There is no appeal from the decision of his Honour whilst sitting in the Commission, to the Court. Secondly, s 188(1) of the Act provides that an appeal from a Member of the Commission may only be made with leave of the Full Bench of the Commission. Leave to appeal will not, ordinarily, be granted unless the appellant demonstrates that the appeal proceedings "raises substantial issues of principle or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application". See Knowles v Anglican Property Trust (No 2) (1999) 95 IR 380 at 382. Thirdly, the Commission is entitled to take into account the decision from which the appeal is sought to be prosecuted and whether it is "attended with sufficient doubt to warrant it being considered" on appeal or whether substantial injustice would result if leave were refused: see WorkCover Authority of New South Wales (Inspector Moore) v Blacktown City Council (2003) 124 IR 59 (Walton J Vice-President, Boland J at [14] and Haylen J at [66]). Fourthly, leave will rarely be given to appeal against an interlocutory procedural decision: see Caltex Petroleum Pty Limited and ors v Harmer (1999) 92 IR 264; Direct Home Loan Corporation Pty Ltd v Wiltshire (No 2) (2004) 137 IR 166 at [10] - [11]; Express Data (A Division of Dimension Data Australia Pty Ltd) and NUW, Re [2005] NSWIRComm 140; Metrocall Inc v Electronic Tracking Systems Pty Limited (No 2) (2000) 102 IR 309 at [21]; AFMEPKIU, New South Wales Branch v David (2006) 154 IR 297. 16 Furthermore, the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 176 - 177 observed that an appellate court should be loathe to interfere in a matter of practice and procedure. 17 In the exercise of my discretion, I decline to grant a stay. I raised with the parties whether the question of leave to appeal should be considered separately. Neither party objected to this course and were advised therefore that this could result in the appeal being listed at short notice.

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Judgment (12 paragraphs)

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Cases Cited (13)