Practice and procedure - Stay - Appeal - Unfair dismissal proceedings - Appeal from decision of Commissioner ordering reinstatement of dismissed employee - Related application by respondent for stay of stay application and of appeal proceedings - Related application based on incorrect view of Nutshack Franchise Pty Ltd v Smith - Application refused - Principles as to grant of stay of reinstatement orders pending appeal - Stay declined - Employer's responsibilities as to the workplace health and safety of employees - [2001] NSWIRComm 235 - NSWIRComm 2001 case summary

Industrial Relations Commission (NSW)|2001-09-20|Before: Wright J, Mr P

CITATION : IGA Distribution Pty Ltd and Moses [2001] NSWIRComm 235 APPELLANT: IGA Distribution Pty Limited PARTIES : RESPONDENT: Michael Joseph Moses FILE NUMBER: IRC 6002 of 2001 CORAM: Wright J President CATCHWORDS : Practice and procedure - Stay - Appeal - Unfair dismissal proceedings - Appeal from decision of Commissioner ordering reinstatement of dismissed employee - Related application by respondent for stay of stay application and of appeal proceedings - Related application based on incorrect view of Nutshack Franchise Pty Ltd v Smith - Application refused - Principles as to grant of stay of reinstatement orders pending appeal - Stay declined - Employer's responsibilities as to the workplace health and safety of employees LEGISLATION CITED : Industrial Relations Act 1996 s 190 Campbells Cash and Carry Pty Limited v National Union of Workers, New South Wales Branch (2001) 104 IR 400 Effem Foods Pty Limited t/as Uncle Ben's of Australia v Urban (1998) 81 IR 341 CASES CITED : Moses and IGA Distribution Pty Ltd [2001] NSWIRComm 1053 Nutshack Franchise Pty Ltd v Smith (1999) 90 IR 355 Re New South Wales Department of Community Services Community Living and Residential (Interim) (State) Award (2000) 100 IR 447 HEARING DATES: 09/20/2001 EXTEMPORE JUDGMENT DATE : 09/20/2001

APPELLANT: Mr R F Crow of counsel Middletons Moore & Bevins, Solicitors (Mr M J Easton) LEGAL REPRESENTATIVES: RESPONDENT: Mr P P Elias Slater & Elias, Solicitors

IGA DISTRIBUTION PTY LIMITED AND MICHAEL JOSEPH MOSES Application for leave to appeal and appeal against a decision of Commissioner Cambridge given on 20 August 2001 in Matter No. IRC2001/1550

DECISION (Extempore) [2001] NSWIRComm 235

1 The Commission has before it two interlocutory applications in respect of the present application for leave to appeal and appeal. The first application is that included, as is permitted under the relevant rules, in the Notice of Appeal. It is an application by the appellant, IGA Distribution Pty Limited, pursuant to s 190 of the Industrial Relations Act 1996 for a stay of the orders which are part of the subject matter of the appeal, on the following grounds: (i) The order appealed from places an obligation on the Appellant to reinstate an employee to a position which he is not capable of discharging without imminent risk to his health and safety. (ii) As the applicant continues to receive workers compensation payments the balance of convenience favors the grant of a stay pending appeal.

2 The Notice of Appeal and the application for stay was filed with the Industrial Registrar on 7 September 2001. The second interlocutory application was made by Notice of Motion filed by the solicitor for the respondent, Mr Michael Joseph Moses, on 11 September 2001, supported by the affidavit of his solicitor, Mr Peter Paul Elias, of Slater & Elias, solicitors. The parties shall be referred to by their roles in the proceedings proper rather than in relation to any interlocutory application.

3 The respondent's Notice of Motion seeks the following orders: 1. An order that the Appellant's application for leave to appeal be stayed until further Order of the Commission. 2. In addition, an Order that the Appellant's application for a stay of the Orders of Commissioner Cambridge made on 20 August 2001 in these proceedings be stayed until further Order of this Commission.

4 The grounds and reasons for the orders sought in the Notice of Motion may be summarised shortly in this way. The orders of Cambridge C were made on 20 August 2001 and to date the appellant has failed to comply with any of the orders. The appellant did not apply for a stay of the orders prior to the lodging of its Notice of Appeal on 7 September 2001 and has, both prior to and since that date, failed to comply with the orders and has made no attempt to do so. The appellant, it is submitted, is accordingly in breach of the orders of the Commission and prima facie in contempt and has no proper reason for breaching the orders. On that basis it was submitted that the circumstances of themselves would lead to a stay of the appellant's application for leave to appeal and also its application for a stay.

5 It is convenient to deal with the interlocutory applications referred to in reverse order and I acknowledge the helpful submissions provided both orally and in writing by Mr Crow of counsel for the appellant and Mr Elias , solicitor for the respondent. The most helpful written submissions, which will be left in the file, facilitate proceeding immediately to the substance of the arguments without rehearsing all of their detail. 6 As I understand the submissions made as to the Notice of Motion it is said that a situation exists where the appellant, having not complied with the orders made against it at first instance, is prima facie in contempt. Further, that reference to the factual history provided by a number of affidavits to which are annexured exchanges of correspondence between the solicitors, shows that the appellant has, "repeatedly and deliberately refused to comply with the Commission's orders. It has flagrantly disregarded an order of this Commission to reinstate Mr Moses as soon as practicable and by no later than 9 September 2001."

7 It is accordingly submitted that the stay orders which the respondent seeks should be granted; in particular, reliance is placed upon the judgment of the Commission in Court Session in Nutshack Franchise Pty Ltd v Smith (1999) 90 IR 355. This aspect of the respondent's argument in the proceedings requires consideration of the basis upon which the Full Bench of the Commission in Court Session determined that case. For present purposes it is sufficient to refer to the following extract from the report of that case (at 363): This Court is concerned, as we have earlier remarked, with the development and formulation of the appropriate procedures to apply under the Industrial Relations Act in terms of the industrial jurisprudence in this State. By analogy, we consider that the approach to this issue stated in Young v. Jackman is appropriate where, as here, there was, and continued to be, disobedience to an order of the court. We would propose to follow that decision as a proper course in the balancing of the rights of parties having in mind the statutory scheme established by the Industrial Relations Act as to the finality of decisions at first instance and the review of them by way of appeal. It follows that we consider Maldoc to have been correctly decided and would apply it to proceedings in this Court.

We should observe, in fairness to the appellants, the preliminary view that the continuation of the present abuse of process may well be a most relevant factor in determining the question, if and when it arises, of leave to appeal. That is not to deny the ability of the appellants to argue that aspect at the appropriate time but rather to emphasise that a long-standing abuse must be a consideration, as a matter of discretion, in deciding the importance of an issue in the context of the circumstances which then exist. After all, a party persisting in an abuse of process may be seen as failing to properly prosecute its case in a timely way to the prejudice of the other party. It may well be difficult for the Court in such a situation to lend its process in the same way as it does to parties complying with the ordinary procedures - why the appellants did not seek a stay of the challenged orders was never explained in the proceedings thus far.

8 I consider that, notwithstanding the carefully argued submissions of Mr Elias, the better approach as to the conclusion of the Full Bench which emerges from the relevant part of the judgment is that the Full Bench was not laying down any strict rule which would lead in circumstances either of contempt, or those analogous thereto, to the situation where the Court would have no discretion. The Full Bench did not hold that it would be appropriate to proceed from a case demonstrating (for example) breach of orders directly to stay the appeal lodged by the party held to be in default. Rather, the Full Bench, in its judgment, made clear that there was a discretion available to the Court where, as was found in that case, there had been, "a long-standing abuse". Further, that the exercise of the discretion in such a case may well lead, on the basis of analogy to the situation which might occur in the case of a contempt of court; that is, the making of an order staying the process lodged by the party in default.

9 In those circumstances I conclude that the orders sought by the respondent in his motion should not be made on the particular basis on which they are claimed. However, the matters raised by him as the factual basis for the orders sought may be relevant in considering the appellant's application for a stay. Friday 21 September 2001 10 It is appropriate at this point to refer to the decision of Cambridge C, the subject of the application for leave to appeal: see Moses and IGA Distribution Pty Ltd [2001] NSWIRComm 1053. At the conclusion of the decision the Commissioner made a number of orders, the first of which was: 1. The Commission Orders that the employer reinstate the applicant to his former position as Storeworker on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed. The applicant is to be reinstated as soon as practicable, and within twenty one days from the date of this Decision.

The Commissioner also made consequential or incidental orders for payment by the appellant to the respondent of an amount referable to the period between the date of the respondent's dismissal less any amounts otherwise received during that period. The final order dealt with the period of employment during the period of dismissal to ensure that for relevant purposes employment would not be taken to have been broken by the dismissal. 11 There are a number of parts of the decision relevant to the present determination. The first is paragraphs [7] and [8] at pages 3 and 4 of the decision. That extract provides useful background to the present matter and its terms are also relied upon by the appellant. The paragraphs are as follows: [7] The applicant was performing work for the employer pursuant to the aforementioned Orders of the Federal Court of Australia when, on 1 June 1999, he sustained a workplace injury which was diagnosed as "lower lumber disc bulges". Despite various treatments, the applicant's injury prohibited him from performing tasks which involved lifting and carrying boxes of grocery items of greater than ten kilograms. [8] Consequently the applicant was allocated Storeworker duties in a particular section of the Blacktown warehouse called the Repack Centre. The Repack Centre is a discrete part of the Blacktown warehouse which deals with previously dispatched goods that have been returned from the employer's customers. The work in the Repack Centre is generally, but not entirely, involved with less lifting of articles that are more than ten kilograms in weight. Given the applicant's incapacity to lift weights above ten kilograms, the applicant was assigned work in the Repack Centre and continued to perform such work until about 20 November 2000. 12 Later in the judgment, and again relevant to the present issues, the Commissioner made the following findings, in paragraphs [44] and [45], page 14: [44] The evidence presented in this instance established that the employer could provide modified duties so as to adapt the work requirements to fit the incapacity of the applicant without any demonstrated commercial or economic loss to the employer. Although there existed a potential for the employer to suffer if circumstances arose whereby another employee might be redirected to perform the work undertaken by the applicant, this represented no more than speculation, and importantly no such circumstance arose as the catalyst for the decision to dismiss. [45] Further, given the size and nature of the employer's workforce there existed significant, obvious prospect for identification of various modified duties which could satisfy the needs of rehabilitation programs whilst providing efficient and productive work.

13 As part of his conclusions, and after dealing with a question of law which it is not presently necessary to refer to, the Commissioner concluded as to the issue of fairness of the dismissal: [64] The issue of the fairness or otherwise of the dismissal of the applicant principally involved the substantive basis that was provided as reason for the applicant's dismissal. The applicant was dismissed because he had certain physical incapacities which meant that he could not complete 100% of the tasks comprehended by the position that he occupied of Storeworker. In the absence of demonstrable adverse impact on the applicant's incapacities, I conclude that it was unreasonable and unjust to dismiss the applicant for reason of the established incapacities per se. [65] I conclude that it is fundamentally unreasonable to adopt a policy that anything less than 100% fitness for all duties comprehended by the employment can provide justifiable basis for dismissal without first establishing the practical effect of the incapacities.

14 Prior to making the orders earlier referred to and his consideration of the appropriate consequential or incidental orders, the Commissioner said: [67] Consequently I conclude that the substantive basis for dismissal was harsh, unreasonable and unjust. Further procedural deficiencies identified in the implementation of the dismissal of the applicant, including; the absence of proper consultation; lack of consideration of the applicant's length of service, and other personal circumstances; and the pre-determination of the dismissal some three months before the date of implementation, all provide further elements of harshness and unreasonableness. [68] In respect to appropriate remedy for the applicant's unfair dismissal, I am compelled to provide for Orders of reinstatement. The nature of the findings made regarding the substantive basis for dismissal, coupled with the absence of any evidence of changed circumstances, provides a compelling basis to conclude that reinstatement would not be impracticable.

15 The Notice of Appeal filed by the appellant also sets out the range of issues relied on for the purpose of the appeal. The first issue is the effect of certain orders made by the Federal Court in relation to a dispute between the appellant and the union of which the respondent is or was a member. There are also issues as to both the Commissioner's findings of "substantive unfairness"; and as to procedural fairness. Finally, issue is taken with the primary remedy provided by the Commissioner and the basis given by the Commissioner for ordering reinstatement. 16 The appellant's submissions as to the stay however focused on those grounds under the heading "substantive unfairness". There was, however, also reference to the questions of jurisdiction arising from the effect of earlier orders of the Federal Court. 17 The issues or legal questions referable to the Federal Court decision appear to have been relied on to demonstrate the appellant's submission that, if the appeal was contended to be futile or that it had no prospect of success, it was in fact an appeal which had good prospects of success. 18 In order to focus upon the matters particularly relevant to the present issue it is appropriate to deal now with the strength of the appeal. Mr Elias conceded that the appeal could not be described as futile. I consider that was a concession properly and appropriately made and I agree with it. Further, I am prepared to decide this matter on the basis that the appellant's appeal is arguable. In stating the matter in this way, lest it be not otherwise clear, I am not making a finding in that respect since I do not consider it is necessary for me to do so. I am merely stating the basis upon which I consider this matter may be appropriately determined. 19 It is now appropriate to return to the basis upon which the stay is sought and it is useful to set out the following extract from paragraph 26 of the appellant's submissions: 26. This is not an appeal that is, or is likely to be, futile. The application for leave to appeal, and appeal, contains numerous criticisms of the decision at first instance. It raises a question of jurisdiction arising from the effect of earlier orders of the Federal Court; see ground H1. It challenges the findings of the Commissioner about the fitness of the respondent for heavy lifting; see grounds H2-10. It challenges the failure of the Commissioner to follow a decision of a Full Bench of the Commission in Effem Foods Pty. Ltd. v Urban (1998) 81 IR 341, a decision on remarkably similar facts; see ground H6.

It will be observed that the appellant's submission focuses on paragraphs [7] and [8] of the Commissioner's decision as the first basis for the granting of the stay order. The appellant's elaboration of its submissions refer to errors alleged in the Commissioner's decision as to that matter and significant reliance is placed on the decision of a Full Bench in Effem Foods Pty Limited t/as Uncle Ben's of Australia v Urban (1998) 81 IR 341. 20 It was submitted, in substance, that the Commissioner erred in failing to conclude, particularly because of the similarity between the evidence in the present application and the circumstances outlined by the Full Bench in that decision, that it was not appropriate to find unfairness. The evidence showed, it was submitted, appropriate and extensive efforts by the appellant to rehabilitate the respondent in its employment. Although those efforts have not proved successful that should not have resulted in, as had occurred in Effem Foods , the Commissioner making the findings and orders he did against the appellant. 21 Although there are apparent similarities between the facts before Cambridge C and those set out in the Full Bench judgment in Effem Foods , nevertheless I do not consider it possible to accept at this stage the high degree of similarity between the two cases for which the appellant contends. It appears that the factual circumstances of the present matter have a reasonable degree of complexity and appear to have been dealt with in some detail and with apparent care by the Commissioner in his decision. 22 I do not consider that it is appropriate to make findings for the purpose of the stay application different to those made by the Commissioner at first instance, as it appears that the respondent worked in the re-pack area of the appellant's operation for approximately 14 months prior to his dismissal in circumstances where the disability to the extent described in the decision was in existence. 23 In elaboration of its submissions as to the factual matters, the appellant read an affidavit of Garry Brian O'Shea sworn 20 September 2001. Mr O'Shea is the Blacktown Warehouse Operations Manager of the appellant and his evidence indicated that since Mr Moses ceased working at the Blacktown site six employees had been allocated to the re-pack area for various periods of time for the purpose of providing restricted duties as part of their rehabilitation and that a Mr Steven Neri (who is said to have a workplace injury) is currently on restricted duties in that area. 24 Mr O'Shea also gave evidence that that area is used to process "ullage" from the main warehouse and that function is closely related to the number of damaged cartons either at the site or received there at relevant times. It was indicated that as a result of certain steps taken by management the number of cartons being sent from the warehouse has reduced dramatically. In particular it was said: On each of the days of the week commencing 17 May 2001 there were 136, 160, 106, 113 and 175 damaged cartons coming out of the warehouse to the repack centre.

In the week commencing 10 September 2001, there were 91, 55, 61, 50 and 66 cartons on each day respectively.

Mr O'Shea also gave evidence as to payments made to the respondent since the order of Cambridge C. 25 In this respect, Mr O'Shea's evidence in summary indicates that the respondent has been paid wages since 10 September 2001 and that, on 18 September, he was paid three weeks "back pay" for the period from the date of the Commissioner's decision until 9 September 2001. (The Commission was subsequently advised that the appellant had paid the respondent the "back pay" ordered by Cambridge C and that aspect was not an issue in the stay application). 26 He also indicated that if the stay was granted by the Commission, the appellant has offered to Mr Moses (an offer which had already been made in an attempt to achieve an agreement as to the stay), an ongoing payment of the difference between workers compensation payments and his usual rate of pay, such payments being paid into a suitable trust account to await the resolution of the present application for leave to appeal. 27 The basis on which the payment of the difference between ordinary pay and workers compensation was to be made was on the assumption (which appears to be correct) that should a stay application be granted the respondent would receive, whilst the stay order was in force, the workers compensation payments at the level paid to him since the date of dismissal in February 2001. 28 There is also evidence tendered by both parties which makes clear that the respondent has presented himself for work subsequent to the decision of Cambridge C at the premises of the appellant and he has not been permitted to commence work. 29 It appears that when he presented for work, he has been instructed by the appellant's management to return home and, on occasions, he has been advised that he would be paid in accordance with the Commissioner's decision, subject to the stay application. 30 The evidence also shows that the respondent when presenting himself for work has advised the appellant's representative that he has not found their approach satisfactory because he genuinely wishes to return to work. The respondent is apparently suffering from a great deal of frustration because of the long period of absence from work and as he is still not permitted to work notwithstanding the order made in his favour. 31 Mr O'Shea deposes to a conversation with the respondent of 11 September 2001 in which he said to Mr O'Shea "I want to work - I am going crazy at home." One can readily understand how, in light of the history of this matter and what Mr O'Shea said about the respondent, that the respondent would have made such a statement and the genuineness of it. 32 Mr O'Shea was cross-examined by Mr Elias as to certain matters. He accepted that the respondent had been a good worker and performed well and had also been a satisfactory worker whilst he had worked in the re-pack centre. He also indicated that the health and safety concerns which were raised by the prospect of the respondent's return to work in that area were that he would require more supervision. 33 I should indicate that I accept Mr O'Shea's evidence. I consider that in giving his evidence he was genuinely attempting to assist the Commission in the determination of this matter. I consider that the first part of his evidence given in cross-examination to which reference has been made confirms my conclusion as to the significance of what the respondent said at the appellant's premises to the extent that it may be necessary to make a finding on this matter. I find that the respondent genuinely wishes to return to the situation where he is actually working and he is frustrated by the present circumstances. 34 While accepting the genuineness of Mr O'Shea's evidence as to the respondent's concern as to health or safety, it has to be seen in the perspective of its limited basis and that the respondent had worked in that area for a significant period of time prior to the termination of his employment. 35 Both parties took the Commission in some detail to the principles that should be applied in determining the stay application and urged that the approach that should be adopted is that usefully set out in the recent decision of Walton J, Vice-President in Campbells Cash and Carry Pty Limited v National Union of Workers, New South Wales Branch (2001) 104 IR 400. For example, counsel for the appellant submitted that the appellant must show an adequate reason for a stay, and that the balance of convenience favours the stay. In some cases it may be necessary to give preliminary consideration to the prospects of the appeal. 36 He also submitted that the notice of appeal gave an adequate reason for the grant of a stay. The respondent's health and safety would be jeopardised if the respondent resumes work. So much appears from a comparison of paragraphs [7] and [8] of the Commissioner's decision and the stay will remove that risk. It is said that this risk has been avoided temporarily by the appellant's decision to pay the respondent's wages and not require him to perform work. This is not an arrangement the appellant wishes to continue for the indefinite period until the determination of its appeal. It involves the payment of money directly to the respondent, which the appellant might have difficulty in recovering if its appeal succeeds. 37 The stay issue is not without real difficulty and there is at least the possibility that the appellant will be successful on the basis that the Commissioner erred in not applying the Full Bench decision in Effem Foods . However, I consider that possibility, in the present circumstances, is more relevant to the appeal than to the stay application. 38 For two main reasons I consider that the factual matters which I should act on for the purposes of the stay application are the Commissioner's findings. First, because there is no presumption in the filing of a Notice of Appeal, even where the appeal has arguable prospects of success, that the first instance decision was wrong or that it would be set aside. Secondly, and which must be seen to be relevantly cumulative upon the first consideration, the respondent had worked in the relevant area without criticism of his personal performance or the satisfactory nature of his work for a period in excess of one year. In those circumstances I do not consider that it would be appropriate to find that it is not possible for the respondent to return to that area of work until the determination of the appeal. 39 Reference has already been made to the "ullage" situation and the changes which have occurred in that area. However, overall, I do not consider that evidence should lead me to alter the conclusions otherwise appropriate in the present circumstances which must be considered, by their very nature, interim. Further, this is not a case where the reason for termination of employment, or the basis upon which the stay was sought, related in any way to the respondent's conduct. 40 This is not the situation sometimes raised in stay applications in appeals concerning unfair dismissal proceedings where it is submitted that it would be inappropriate for the employer to be required to accept an employee's return to employment, pending the outcome of the appeal, because the allegations as to the employee's conduct were such that the status quo should not change in the short term. 41 In reaching these conclusions, I should make plain that I am not unmindful that there may be said to be some practical difficulties in the stay not being granted. However, I have determined that, on an analysis of the whole of the material or evidence in its appropriate circumstances, the basis upon which the stay has been argued by the appellant has not demonstrated those difficulties exist. 42 That, of course, does not mean that the appellant, can ignore its responsibilities to its employees under the important health and safety laws which govern employers and employees in the State: see for example the judgment of the Full Bench of this Commission in Re New South Wales Department of Community Services Community Living and Residential (Interim) (State) Award (2000) 100 IR 447 at 466-467 where, in making an award and having regard to workplace safety and health as a relevant consideration, the Full Bench said: In granting the variation to the award it is to be stressed that its making in no way diminishes the [employer's] responsibilities under the Occupational Health and Safety Act or under the common law ...

Nor does it mean that the findings made at first instance do not remain relevant as to the work performed by the respondent pending the outcome of the appeal. 43 I consider the approach in the Campbell's case is appropriate in the present circumstances and I have adopted the approach set out in his Honour's decision at paragraphs [49] and following. By way of example, paragraphs [49], [51], [59], [60] and [62] of the decision are as follows: [49] The principles relevant to determining an application for stay upon an appeal brought pursuant to s190 of the Act have been recently stated by a Full Bench of the Commission in Court Session in State of New South Wales (Department of Public Works and Services and Department of Education and Training) v WorkCover Authority of New South Wales (Inspector Page) [2000] NSWIRComm 124 at [15] as follows: The facility of a stay of a challenged decision, in whole or in part, is afforded by s190 of the Industrial Relations Act . The principles on which a stay is allowed have been often stated - in short, a sufficient reason needs to be shown to delay the decision made at first instance from being effective pending the determination of the appeal: see Alexander v Cambridge Credit Corporation Ltd [1985] 2 NSWLR 685 and Water Industry Salaried Officers' Union v Professional Officers' Association of New South Wales [1987] 22 IR 178. As was observed by the Full Commission ( Fisher P, Hungerford J and Buckley CC) of the former Commission in Professional Officers' Association of New South Wales v New South Wales Teachers' Federation [1993] 50 IR 404 at 404: Shortly stated the approach in considering a stay application is that the appellant is required to demonstrate reasons to warrant the exercise of discretion in his favour. Specifically unlike the former position, an appellant is not now required to establish special or exceptional circumstances to warrant the imposition of a stay. The question then is whether the appellant has established or demonstrated reasons supporting an appropriate case for a stay. In the result in that case, the Full Commission considered the circumstances in terms of the balance of convenience as favouring a stay and said (at p 405) that "if a stay were not granted however then a series of applications drastically affecting the rights of industrial parties to represent the interests of their members or potential members would produce major consequences and may indeed have subsequently to be unravelled". … [51] The question further arises, however, as to whether it is appropriate to consider the prospects for success of the appeal in determining whether to grant an application for a stay.

… [59] In my view, the Court of Appeal did not establish, in Cambridge Credit, a rigid or immutable rule or principle against any preliminary consideration of an appellant's prospect for success on appeal, where the appellant seeks a stay of the decision at first instance. Nor did other decisions following Cambridge Credit , such as Green v Brown . For example, the court in Cambridge Credit considered it appropriate that a preliminary assessment be made as to whether an appellant had an arguable case in order for a court to evaluate the specific terms of a stay that would fairly adjust the interests of the parties.

[60] Furthermore, the principle against speculating on the prospects for success of an appeal was stated by the court in Cambridge Credit as a 'general principle' which arose because submissions made as to the substance of an appeal in support of an application for a stay were "typically and necessarily attenuated". Thus, the nature and extent of any limitation may vary depending upon the nature of the submissions and the issues raised in support of the application for a stay.

[62] Where it is appropriate to assess the prospects for success of an appeal in considering an application for a stay, the assessment so made will be entirely preliminary. 44 It is clear from that decision and the cases cited in it that the first matter to be considered is whether the appellant has, as required, demonstrated reasons or a basis to warrant the exercise of discretion in his favour as to the grant of a stay. If that circumstance is demonstrated, the next question is the basis upon which any stay might be granted and also the related question as to the extent of the stay. 45 For the reasons I have given earlier, I do not consider I should conclude that the first ground (that is whether a reason or an appropriate basis) has been established and although it is difficult to approach hypothetically the second issue on a basis contrary to that finding it may be of assistance to the parties to indicate that, should it have been appropriate to have made a determination as to the second question, I consider that in the light of the considerations earlier referred to, I would, more likely than not, have come to the conclusion on the balance of convenience that the stay should not have been granted. 46 Reference should be made to one further matter. When the respondent's notice of motion was dealt with, it was indicated that it may be appropriate to take into account the matters raised by that motion in determining the stay application. In light of the way in which the determination of that issue has occurred it was not necessary to take those factors into account on either the initial determination as to the stay nor as to the subsequent consideration as to the balance of convenience. 47 It is appropriate now to make formal orders and directions as to the notice of motion and the stay, to set the appeal down and to make directions for its preparation for hearing. 48 The Commission makes the following orders: 1. The respondent's notice of motion is dismissed. 2. The appellant's application for a stay is declined. 3. The question of the costs, if any, of both interlocutory applications is reserved. 4. The appeal is fixed for hearing at 10.00am on 12 December 2001 on the basis that the Commission expects the matter will be heard on that day. 5. The usual directions in terms of Practice Direction No 1 will be the directions for the purposes of the appeal. 6. As the parties are aware, the usual directions include liberty to apply, and the Commission notes that the issue of costs at first instance is yet to be determined and may result in the liberty to apply being exercised. 7. The appellant's obligation to comply with the rules as to the filing and service of appeal books is waived on the proviso that the appeal books are filed and served no later than 4 p.m. on 15 October 2001. _________________

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.

[2001] NSWIRComm 1053

At a glance

Court

Decision date

Before

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Judgment (25 paragraphs)

Parties

Cases Cited (6)

Cited By (3)