s.45 appeal against decision [Print Q1095]

At the conclusion of the proceedings on 26 June 1998 we said that we had decided to refuse leave to appeal and dismiss the appeal. We also indicated that we would provide reasons for our decision in due course, these are the reasons for our decision on 26 June.

On 20 May this year Commissioner Tolley made an order in relation to an application for relief in respect of the termination of the applicant, Ms Tannya Edwards, by the respondent, the Telstra Corporation Limited. The order required Telstra to reinstate Ms Edwards and to pay her an amount in respect of the remuneration lost because of her termination.

Telstra appealed against the Commissioner's order and sought a stay of the order subject to appeal.

On 25 May 1998 Senior Deputy President Polites heard the appellant's application for a stay order. At the conclusion of the proceedings his Honour reserved his decision. The next day the Senior Deputy President published his decision in which he granted the stay order sought [see Print Q1246].

The matter before us concerns an appeal by Ms Edwards against the decision and stay order issued by the Senior Deputy President. The notice of appeal advances four broad grounds in support of the appeal:

- the Senior Deputy President failed to give appropriate weight to the fact that Telstra had produced no evidence to show that Ms Edwards was of such a character that she was unlikely to repay any moneys owing in the event of the appeal being successful;

- his Honour erred in making assumptions about the amount of time between the hearing of the stay and the determination of the appeal;

- his Honour erred in failing to make immediate provision for interest on the compensation awarded to the respondent should the appeal be unsuccessful; and

- finally the Senior Deputy President erred in finding that there was a public interest in the appeal.

Where an appeal has been instituted under s.45, a Full Bench or a Presidential Member may, pursuant to s.45(4), and on such terms and conditions as they think fit, make an order staying the operation of the whole or part of the award or decision subject to appeal pending the determination of the appeal or further order.

In the decision subject to appeal his Honour stated the relevant principles in the following terms:

"The principles applied by the Commission in relation to the grant of stay orders are well known and need only be stated briefly here. They are firstly that the appellant must have an arguable case both as to the merits of the matter and to the question of whether the matter is of such importance that in the public interest an appeal should be granted and secondly that the balance of convenience favours the granting of a stay order." [Print Q1246 at 1]

Mr A. McDonald, appearing for the appellant, submitted that the above statement oversimplified the position. In this regard he referred to Barlin Scott Air Conditioning Pty Ltd v Horvath [Print P9939] per Senior Deputy President Williams In that decision his Honour said at p2:

"It is not necessary for me to deal with the question of balance of convenience and purpose. The respondent's counsel had contended that the `established' test that the balance of convenience lies in favour of the status quo should be revisited and perhaps replaced by a rule that the successful party should not be deprived of the fruits of victory, pending determination of the appeal, unless special circumstances exist. That is a proposition that may well need to be considered by a full Bench."

Mr A McDonald also referred to Norman v Besser Industries (NT) Pty Ltd [per Moore Marshall and Madgwick JJ, 1 August 1996 as yet unreported]. In that case the Court approved of the following extract from the judgement of his Honour Mr Justice Dawson in Federal Commissioner of Taxation v Myer Emporium Ltd , [1986] HCA 13; (1989) 160 CLR 220 at 222 - 223:

"It is well established by authority that the discretion which it confers to order a stay of proceedings is only to be exercised where special circumstances exist which justify departure from the ordinary rule that a successful litigant is not to be deprived of the fruits of his litigation pending the determination of any appeal: see e.g. The Annot Lyle [1886] 11 PD 114, at p. 116; Scarborough v Lew's Junction Stores Pty. Ltd. [1963] VicRp 20; [1963] VR 129 at p. 130. Special circumstances justifying a stay will exist when it is necessary to prevent the appeal, if successful, from being nugatory: see Wilson v Church [No.2] [1879] 12 Ch. D 454 at p. 458; Klinker Knitting Mills Pty. Ltd. v L'Union Fire Accident and General Insurance Co. Ltd. [1937] VicLawRp 28; [1937] VLR 142. Generally that will occur when, because of the respondent's financial state, there is no reasonable prospect of recovering moneys paid pursuant to the judgement at first instance. However, special circumstances are not limited to that situation and will, I think, exist where for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed: see McBride v Sandiland [No.2] [1918] CLR 169 at p.373.

Mr M. McDonald, appearing for the respondent, objected to the appellant challenging the principles applicable to an application for a stay order under s.45(4) in circumstances where no such challenge was foreshadowed in the notice of appeal. Mr M. McDonald submitted that such an important question should not be debated without proper notice and his client was prejudiced by the appellant's failure to give notice of his intention to raise this issue.

We agree with Mr. M. McDonald. We also note that the appellant did not seek leave to amend the notice of appeal to include the ground that the Senior Deputy President had acted on an incorrect principle. In our view this case does not provide an appropriate vehicle for reconsidering the principles to be applied in determining whether to stay an award or order subject to appeal.

We only wish to note that previous Commission decisions have suggested that where the intervention of the Commission has imposed an obligation or duty on a party then prima facie the balance of convenience would favour a stay being granted. One reason why such an approach has been adopted is that the creation of a requirement to pay monies under an award which is subsequently quashed gives rise to the practical difficulty of recovering monies paid to what may be a large number of employees covered by the relevant award. It seems to us that the difference in approach to the granting of stay orders between that taken by the Commission and the general Courts arises from the fact that the Commission is generally making or varying awards which apply to a large number of employers and employees. The same problem does not arise in respect of an order under s.170CH which is directed at an individual applicant. Indeed this distinction was appreciated by the Senior Deputy President and he referred to it in the course of the proceedings below [see Transcript of 25 May 1998, 30 at lines 35 - 37 and 31 at lines 1 - 5].

In our view previous statements about the prima facie position favouring the granting of a stay require reconsideration in the context of s.170CH orders providing for a remedy following a decision that a termination was harsh, unjust or unreasonable. In this regard we note that in Re Thiess Watkan's White Group and others [Print J0194, 14 November 1989 per Maddern P, Moore DP and Smith C] the Commission said:

".... These appeals are made on the basis that the result obtained by the FEDFA was obtained unfairly. Without canvassing the merits of the apellants' cases it appears there are issues that warrant fuller consideration by a Full Bench and that should occur, in our view, on the basis that the various orders and awards are stayed pending the hearing of these appeals. We reach this conclusion with the knowledge that the appeals will shortly be listed for hearing next month and are likely to be dealt with expeditiously. This factor is especially important in considering whether to stay the reinstatement order made by the Commissioner where employees' incomes are affected by the granting of such a stay. It may be that in a case where there is no apparently substantial challenge to the jurisdiction of the Commission to make an order for reinstatement, the Commission should be cautious about staying the operation of a reinstatement order even if an undertaking was given of the type given by the employer in these proceedings."

After stating the relevant principles the Senior Deputy President went on to state that he was satisfied that the appellant had established an arguable case both as to public interest and merits. We have examined the transcript of the proceedings before his Honour and in our view this conclusion was reasonably open on the material before him.

In relation to the question of balance of convenience his Honour said:

"I turn then to the question of balance of convenience. Mr McDonald of Counsel for the respondent argued strongly that Telstra had produced nothing which would induce the Commission on the question of balance of convenience to depart from the general position and that successful litigants should be entitled to the benefits of their success. In particular he argued that no evidence had been produced to show that the respondent was of such a character that she was unlikely to repay any moneys owing in the event of the appeal been successful.

I have given this submission earnest consideration. There is much to commend it. However, I am conscious that it is now a considerable time since the respondent was dismissed by Telstra and the payment of outstanding moneys would amount to a considerable amount. In the event that the appeal was successful the respondent would be required to repay such moneys. When this factor is balanced against what one hopes will be a reasonably short period between now and the hearing and determination of the appeal I think that the balance of convenience is in favour of granting the stay order to preserve the status quo immediately preceding Tolley C's decision.

I would add that if I consider a lengthy delay were involved I would have considered requiring the appellant to deposit the moneys in an account where in the event the appeal were unsuccessful interest would accrue to the respondent. If it becomes clear that the matter cannot be heard within a reasonable period of time then I reserve liberty to apply in this regard." [Print Q1246 at 2]

It is apparent from the extract to which we have referred that his Honour had regard to the following factors:

- the absence of evidence to show that Ms Edwards was unlikely to repay any monies owing in the event that an appeal was unsuccessful;

- the fact that it has been a considerable time since Ms Edwards' dismissal and as a consequence the remuneration lost is a considerable amount which would have to be repaid if the appeal was successful; and

- his Honour's expectation that the appeal would be heard and determined within a reasonably short period of time.

Contrary to the appellant's submissions it is clear to us that his Honour did have regard to the absence of any evidence of Ms Edwards' ability to repay any monies owing in the event that the appeal was successful. Further the reference to the amount of time between the hearing of the stay and the determination of the appeal was as appropriate assumption given that his Honour is a member of the relevant appeal bench. We understand that the appeal has been set down for hearing on 28 July 1998.

Regarding the appellant's complaint that his Honour did not immediately make provision for interest on the compensation awarded should the appeal be unsuccessful we note that the Senior Deputy President addressed this matter in his decision in the following terms:

"I would add that if I consider a lengthy delay were involved I would have considered requiring the appellant to deposit the moneys in an account where in the event the appeal were unsuccessful interest would accrue to the respondent. If it becomes clear that the matter cannot be heard within a reasonable period of time then I reserve liberty to apply in this regard." [Print Q1246 at 2]

In the event that Ms Edwards wishes to pursue this point then an application may be made to the Senior Deputy President for the variation of the stay order.

Given the broad nature of the discretion in s.45(4) the question of whether or not the balance of convenience in a particular case favours the granting of a stay will largely be a matter for the impression and judgment of the Commission member at first instance. In this matter we are satisfied that the conclusion reached by the Senior Deputy President was reasonably open to him.

Section 45(2) provides that a Full Bench shall grant leave to appeal `if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted'.

In order to warrant a decision granting leave to appeal more is usually required than simply establishing a case that might have persuaded the Full Bench to exercise the discretion in another way as if the matter was being considered at first instance. In the absence of an arguable case of either legal error or that the discretion was miscarried the Commission would not grant leave to appeal merely to substitute its decision for the decision under appeal.

Given the absence of demonstrable error in the exercise of the discretion at first instance we are not of the opinion that the matter is of such importance that, in the public interest, leave to appeal should be granted.

M. Rinaldi of Counsel for Telstra Corporation Limited.

Case procedures - stay - appeal - full bench - Polites SDP issued order staying decision of Tolley C in appeal proceedings instituted by Telstra - at hearing appellant challenged principles applicable to an application for a stay order under s45(4) but did not foreshadow this in notice of appeal nor seek leave to amend notice of appeal - held - inappropriate in this case to reconsider principles applied in determining whether to stay an order subject to appeal - Commission approach has generally favoured granting a stay - different approach taken by Commission from general courts as Commission is generally making or varying awards which apply to a large number of employers and employees - same problem does not arise in orders under s170CH which is directed at individual applicant - this distinction was appreciated by Polites SDP - conclusion reached by Polites SDP that Telstra had established arguable case reasonably open to him - as to balance of convenience, Polites SDP had considered factors such as the absence of evidence to show appellant was of such a character that she was unlikely to repay moneys in event of appeal being successful, fact that considerable time had passed since appellant's dismissal and amount of remuneration lost which would have to be repaid was considerable - expectation that appeal would be determined within a short time - Polites SDP also reserved liberty to apply in event that there would be a delay in the appeal, for moneys to be placed into an interest bearing account - leave to appeal refused - appeal dismissed.

Appeal by T Edwards against decision and stay order [Prints Q1246 and Q1247] issued by Polites SDP on 26 May 1998

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