Consideration
9 It is a well-settled principle that a party which has been successful is entitled to the fruits of its judgment, and that decisions at first instance are not to be treated as merely provisional: Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 at 694-5; Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453 at [12]; Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd [2008] FCA 1867 at [39]. The Court has discretion to grant a stay of orders in appropriate circumstances, however it is clear that the lodgment of an appeal does not automatically warrant a stay of orders below. As was explained by the Court of Appeal of New South Wales in Alexander at 694:
The onus is upon the applicant to demonstrate a proper basis for a stay that will be fair to all parties: Trlin. 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: see Supreme Court Rules, Pt 51, r 10; Waller v Todorovic. 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.
10 In this case I am not persuaded that a stay of orders of the Federal Magistrate is warranted, for the following reasons.
11 First, the appeal from the decision of the Federal Magistrate is listed for hearing in this Court in less than four weeks from now. At that time, the Court can give proper consideration to the merits of the appeal. I note the submission of Mr Pratt for Premier Pet that the timing of the hearing of the interlocutory application did not result from late filing of the interlocutory application by Premier Pet, but rather followed the accommodation granted by the Court to Mr Brown as a (then) unrepresented litigant to seek legal representation and file material prior to the hearing of this application. However this does not alter the fact that the hearing of the appeal is imminent. While the proximity of the hearing date of an appeal can potentially also be a reason to support an application for a stay of orders the subject of that appeal, at this late stage I consider a stay would provide little meaningful benefit to Premier Pet.
12 Second, while I note the uncontested evidence before the Court that Mr Brown is a bankrupt, and the real possibility that recovery of payments made by Premier Pet to Mr Brown may not be possible should Premier Pet's appeal be successful, nonetheless I am also mindful of the financial hardship Mr Brown deposes he would suffer should the judgment in his favour be stayed. Mr Pratt submitted that a particular concern of Premier Pet was, in summary, that Mr Brown does not maintain savings, but spends his salary within a short time after receipt. In my view, expenditure of wages by a wage-earner to meet commitments is not unusual. Notwithstanding some evidence concerning Mr Brown's involvement in an online sword-selling business, his employment with Premier Pet appears to be his primary (if not sole) source of income. In light of the respective financial positions of the parties, on balance I consider that the interests of justice favour the preservation of the existing order in Mr Brown's favour, pending the hearing of the appeal.
13 Third, on the material before the Court at this point the prospect of success of the appeal is not obvious to me. It is clear from submissions of Mr McMillan for Mr Brown that the grounds of appeal are contested. Detailed reasons were given by the Federal Magistrate for his decision in Mr Brown's favour, and correspondingly detailed grounds of appeal have been filed by Premier Pet (and opposed by Mr Brown). The hearing of an application for a stay is not the appropriate forum to undertake detailed consideration of those grounds of appeal. On balance, I am not persuaded at this stage that the grounds of appeal in themselves support an order for stay of his Honour's orders below.
14 Finally, the order of his Honour was that Mr Brown be reinstated because termination of his employment was in contravention of the FWA. Generally speaking, an order in these terms is unremarkable in light of findings of this kind, and in my view could not be described as so unusual as to influence the exercise of the Court's discretion to order a stay pending hearing of an appeal.