Ian Bruce Moore v A-Mac Alarms Pty Limited & Anor

Second Respondent: Security Hardware Pty Limited

CATCHWORDS: Application for leave to appeal and appeal against a decision of the Chief Industrial Magistrate - application for stay of Chief Industrial Magistrate's orders pending leave to appeal and appeal - principles in relation to stay applications - applicant fails to demonstrate any reason to warrant the exercise of discretion to grant a stay - application refused - costs reserved

Industrial Relations Act 1996 LEGISLATION CITED: Industrial Relations Commission Rules 1996

Alexander & Ors v Cambridge Credit Corporation Limited (Receivers Appointed) & Anor (1985) 2 NSWLR 685 CASES CITED: Porteous & Others v Inspector McMartin [2005] NSWIRComm 122 Sterling Software (Pacific) Pty Ltd & Anor v Chippington (IRComm NSW per Wright J, President, Tuesday 3 April, 2001 (unreported)).

HEARING DATES: 06/23/2005 EXTEMPORE JUDGMENT DATE: 06/23/2005

Applicant: Mr I. Moore, unrepresented

First Respondent: LEGAL REPRESENTATIVES: Mr C. Delaney

Second Respondent: Mr D. Lloyd Ms P. Emery Blake Dawson Waldron

• 5 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Ian Bruce Moore v A-Mac Alarms Pty Limited and Anor

Application for leave to appeal and appeal against a judgment of Mr Miller, Chief Industrial Magistrate

1 This matter in which a stay is being sought concerns an application for leave to appeal and appeal against a decision of the Chief Industrial Magistrate, Mr Miller, of 20 May 2005. The application before Mr Miller sought the recovery of moneys under section 365 of the Industrial Relations Act 1996 which the applicant claimed was owed him by both respondents under the Electrical Contracting Industry (State) Award, (the Award).

2 The claim for outstanding moneys was based on the applicant's contention that while working for the first respondent, A-Mac Alarms Pty Ltd, he should have been paid wages commensurate with a grade 5 electrical worker as defined in the Award, (refer clause 4 of the Award).

3 At first instance his Honour Mr Miller was not satisfied on the evidence before him that the applicant possessed the necessary formal qualifications and had demonstrated that he had the required skills to fall within the classification of a grade 5 electrical worker. His Honour also made findings in relation to other issues which were in dispute between the parties in the proceedings. Those issues included the applicant's entitlements during his period of employment with the first respondent to a motor vehicle allowance, a tool allowance, a construction work and special allowance, a disability rates dirty work confined spaces and toxic substance allowance, overtime entitlements, "standing-by" entitlements, rostered days off, outstanding wages, and, annual leave entitlements. In relation to all these issues his Honour found that the applicant had not discharged the onus upon him to the requisite civil standard. The applicant was therefore found not to be entitled to any allowances, overtime or other entitlements. 4 The applicant seeks to appeal against Mr Miller's findings concerning all of the issues referred to above. In the application for leave to appeal and appeal the applicant seeks a stay on two bases:

1. The trial was biased in favour of the respondent's lawyers with little regard to what the applicant supplied. 2. The magistrate didn't ask the applicant any questions regarding the hard evidence he had supplied.

5 As a preliminary observation, it should be noted that neither of these two bases fall within any of the traditional or usual reasons as to why a stay, pending an appeal, may be sought. 6 Under section 190 of the Industrial Relations Act if an appeal is made to a Full Bench of the Commission under Part 7 of the Act then a Full Bench or Presidential Member may order that the decision the subject of the appeal may be stayed in whole or in part pending determination of the appeal. 7 The present proceedings are heard by the Commission In Court Session: section 153(1)(g) and (j). 8 A stay may also be sought under Part 51 Subrule 15.15 of the Supreme Court Rules in combination with Subrule 89(5) of the Industrial Relations Commission Rules 1996. 9 The general principles applicable to stays in civil proceedings have been recently referred to by Walton J, Vice-President, in Porteous & Others v Inspector McMartin [2005] NSWIRComm 122 [at 8]. After referring to a number of decisions in this jurisdiction which have dealt with stay applications his Honour said: It is not necessary to demonstrate special or exceptional circumstances to warrant the imposition of a stay. Rather, the applicant must demonstrate an adequate reason for the stay (simply filing an appeal or seeking a stay is not sufficient) and that the balance of convenience (including fairness and the competing rights of the parties) favours the stay. In some cases it may be appropriate to consider, on a preliminary basis, the prospects for success on appeal.

10 The principles have been set out in the Court of Appeal decision of Alexander & Ors v Cambridge Credit Corporation Limited (Receivers Appointed) & Anor (1985) 2 NSWLR 685 at 694 and 695. These principles may be summarised as follows: (i) it is not necessary for an applicant bringing a stay application to make out special or exceptional circumstances. It is sufficient if the applicant demonstrates a reason for an appropriate case to warrant the exercise of discretion in his favour. (ii) the onus is on the applicant seeking a stay to demonstrate a proper basis for a stay that will be fair for all parties. (iii) the mere filing of an appeal would not of itself discharge the onus which the applicant bears. (iv) in exercising its discretion whether or not to grant a stay the Court will weigh considerations such as the balance of convenience and competing rights of the parties before it. (v) where there is a risk if a stay is granted that the applicant's assets may be disposed of, the Court may in the exercise of its discretion refuse to grant a stay. (vi) a Court may impose on an applicant as a condition of a stay where funds are available the payment of the whole or part (of a verdict) to the judgment creditor. (vii) where there is a risk that the appeal will prove abortive (or be rendered nugatory) if the appellant succeeds and the stay was not granted, this will be a substantial factor in favour of a grant of the stay. (viii) Without indulging in speculation to the appellant's prospects of success the Court may nevertheless make some preliminary assessment about whether the appellant has an arguable case.

11 In the present proceedings the respondents to the appeal have been successful at first instance. If the appeal is successful the applicant may stand to recoup any outstanding moneys he claimed at first instance are owing to him under the Award. 12 There is no evidence before the Court that there may be a risk, in the event that the applicant is successful in his application for leave to appeal and appeal, that the respondent may dispose of, or, dissipate any verdict moneys and costs, such that, if a stay is not granted, the appeal may be rendered nugatory: Sterling Software (Pacific) Pty Ltd & Anor v Chippington (IRComm NSW per Wright J, President, Tuesday 3 April, 2001 (unreported)). 13 I asked the applicant, who is unrepresented here today, if a stay is sought of the Chief Industrial Magistrate's order, and, if so on what basis or bases. The applicant provided to the Court reasons which included that the magistrate's findings were incorrect, mileage hasn't been paid, the applicant paid for car insurance and other insurances. The applicant also informed the Court that his overtime was not paid and that Mr McIlveen, the director of the first respondent, gave contradictory evidence before the chief industrial magistrate. The applicant also said here today that he was the only one who did stand-bys and that he never received moneys for any rostered days off. 14 All these matters go to the merits of the appeal rather than to whether or not a stay should be granted pending an appeal. 15 The application for leave to appeal and appeal sets out four questions raised by the applicant for consideration on the appeal as follows: "(a) Judgment was made mostly on the hearsay evidence of the first respondent. (b) None of the hard evidence supplied by the applicant was taken into consideration. (c) The applicant could not give his side of the argument as he represented himself and therefore could not put himself on the witness stand to give firsthand evidence. (d) The magistrate has shown to be inconsistent when he has given his reasons to one part of an argument while not applying the same reasoning to the rest of the argument".

16 There is nothing on the face of his Honour's decision at first instance which provides any foundation for the contentions which form the subject matter of the questions raised. Without the benefit of any evidence on the point I am unable to determine whether the applicant has an arguable case. 17 I also take into account in determining whether a stay should be granted that leave to appeal is required in respect of the appeal: See section 188(1) of the Industrial Relations Act. 18 In all these circumstances I have come to the conclusion that the applicant has demonstrated no reason or basis to warrant the exercise of my discretion in favour of granting a stay. The application is therefore refused.

19 I make the following orders: 1. The applicant's application to stay the proceedings is refused. 2. The question of costs of the stay application is reserved.

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