Harbour City Real Estate Pty Ltd t/as Re/Max Harbour City Real Estate (ACN 111 210 023) v Cargill

REASONS FOR JUDGMENT 1 The first and second appellants appeal from a decision of the Industrial Magistrates Court of Western Australia. Reasons for that decision were given on 26 February 2008 and final orders were made on 22 May 2008. In that Court the respondent had commenced proceedings for payment of wages, superannuation and annual leave entitlements as well as penalties on the basis of alleged breaches of ss 718, 722, 728 and 824(2) of the Workplace Relations Act 1996 (Cth). Pursuant to the orders of the learned Magistrate, the appellants were required to pay judgment sums totalling $40,014.54 to the respondent. 2 On 12 June 2008, the appellants appealed that decision. 3 On 24 June 2008, the appellants filed a notice of motion seeking a stay of the orders of the learned Magistrate until the determination of the appeal.

LEGAL CONSIDERATIONS 4 It is common ground that the commencement of an appeal in this Court does not operate as a stay of the judgment the subject of the appeal. However there is a discretion pursuant to s 29 of Federal Court of Australia Act 1976 (Cth) (the Act) and O 52 r 17(1) of the Federal Court Rules to stay a judgment. 5 The usual principle is that a successful party is entitled to the fruits of judgment and the appellants must give sound reasons to justify a suspension of that right: McBride v Sandland (No 2) (1918) 25 CLR 369 at 374. The 'special circumstances' that enliven the power to grant a stay may exist when there is a real risk that it will not be possible for a successful appellant to be restored substantially to its former position if the judgment is executed: Commissioner of Taxation (Cth) v Myer Emporium Ltd (No 1) (1986) 160 CLR 220 at 222-223. 6 The Court of Appeal of New South Wales in Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685, at 694-695 said: In our opinion it is not necessary for the grant of a stay that special or exceptional circumstances should be made out. It is sufficient that the applicant for the stay demonstrates a reason or an appropriate case to warrant the exercise of discretion in his favour. 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: ... 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. Even where no order is made for the payment of part of a verdict, it is not at all unusual for the Court, in the exercise of its discretion, to grant a stay on terms that the appellant give to the judgment creditor security in terms defined by the Court as appropriate to the fair adjustment of the rights of the parties. 7 In Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 the Full Court of the Federal Court followed the decision of the New South Wales Court of Appeal in Alexander v Cambridge Credit 2 NSWLR 685. The Full Court also adopted the statement of Mahoney JA in Re Middle Harbour Investments Ltd (in liq) (unreported, Court of Appeal, NSW, 15 December 1976) that: Where an application is made for a stay of proceedings, it is necessary that the applicant demonstrate an appropriate case. Prima facie, a successful party is entitled to the benefit of the judgment obtained by him and is entitled to commence with the presumption that the judgment is correct. These are not matters of rigid principle and a court asked to grant a stay will consider each case upon its merits, but where an applicant for a stay has not demonstrated an appropriate case but has left the situation in the state of speculation or of mere argument, weight must be given to the fact that the judgment below has been in favour of the other party. 8 In Henderson v Amadio Pty Ltd (No 3) (1996) 65 FCR 66 at 68 Heerey J pointed out that even though the circumstances need not be 'special' or 'exceptional' in the sense of being unusual or rare, 'the party seeking a stay needs to show some reason the stay should be granted. As stated by his Honour (at 69): For example, where the judgment sought to be stayed is for payment of a money sum and costs, as is the case here, the appellant will often be concerned with the prospect that without a stay the proceeds of the judgment may be dissipated or ceased by other creditors or for some other reason be impossible or very difficult to recover. In such a case the appellant has to show there would be no reasonable probability of getting back moneys paid under the judgment if the appeal succeeds: see Andrews v John Fairfax & Sons Ltd [1979] 2 NSWLR 184 at 189 … 9 In Welcome Real-time SA v Catuity Inc (No 2) [2002] FCA 258 Heerey J granted a stay, where the applicant for the stay offered to pay the costs into an interest-bearing account pro tem and the other party was a foreign company. His Honour also had regard to the financial situation of the respondent to the application. 10 In Australian Solar Mesh Sales Pty Ltd v Anderson [1999] FCA 964, Gyles J observed that while it was for the appellant to show the lack of reasonable probability of getting back monies paid, 'it seems to me that the appellant in order to carry that onus, would not need to do very much to throw upon the respondent, the need to show means'. 11 In Australian Competition and Consumer Commission v BMW (Australia) Ltd (No 2) [2003] FCA 864 Finkelstein J also set out the relevant principles stating (at [5]): The principles which govern a court's discretion in granting a stay pending the determination of an appeal are well known: see generally Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685. Although it is not possible to state exhaustively the considerations that may be taken into account in the exercise of this discretion, it is appropriate that I mention those that bear on this application. The general rule is that a stay will be granted where there is a likelihood that a successful appeal will be rendered nugatory: Wilson v Church (No.2) (1879) 12 Ch D 454, 458. A court will also consider the balance of convenience and the competing rights of the parties as well as whether either party will be prejudiced by the stay: The Marconi's Wireless Telegraph Company Limited v The Commonwealth [No.3] (1913) 16 CLR 384, 386; Philip Morris (Australia) Ltd v Nixon [1999] FCA 1281 at [17]. Even though a judge will generally not be required to speculate about the appellants prospects of success, it is well established that a stay will not be granted in the absence of arguable grounds of appeal, or if the appeal is not bona fide: J C Scott Constructions v Mermaid Waters Tavern Pty Ltd (No. 1) [1983] 2 Qd R 243, 248; Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685, 695. It necessarily follows that a stay will not be granted if an appeal has no prospect of success: Australian Workers' Union v Pilkington (Aust) Ltd (2000) 101 FCR 35, 43.