Adrian G Cremona (formerly trading as Frooty Fresh) v James Lane
[2011] FWA 3701
•14 JUNE 2011
[2011] FWA 3701 |
|
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Adrian G Cremona (formerly trading as Frooty Fresh)
v
James Lane
(C2011/4627)
SENIOR DEPUTY PRESIDENT O’CALLAGHAN | ADELAIDE, 14 JUNE 2011 |
Appeal against decision [2011] FWA 3214 of Commissioner Cambridge at Sydney on 24 May 2011 in matter number U2010/13250.
[1] This is an application for a stay order made by Mr Cremona who formerly traded as Frooty Fresh. Mr Cremona seeks to stay the decision 1 and order2 of Commissioner Cambridge of 24 May 2011 against The Heights Grocer trading as Frooty Fresh. Mr Cremona apparently is or was a Director of The Heights Grocer trading as Frooty Fresh. The Notice of Appeal, which is made pursuant to s.604 of the Fair Work Act 2009 (the FW Act) was filed by Mr Cremona on 7th June 2011.
[2] The stay application was heard by me on 9 June 2011. Mr Cremona appeared by telephone. Mr Moore, of counsel appeared for Mr Lane, again by telephone.
[3] The Notice of Appeal identifies a number of grounds for the application and asserts that the Commissioner’s decision is attended by significant errors of fact. The Commissioner’s decision followed a hearing convened on an ex parte basis as Mr Cremona did not attend the hearing on 12 May 2011. Mr Cremona asserts that he spoke with Commissioner Cambridge’s associate on the morning of 12 May 2011 and explained the reason for his non-attendance to her. He further asserts that later that morning he forwarded by facsimile written reasons for his non-attendance.
[4] Fair Work Australia received a facsimile from Mr Cremona on 12 May 2011. The Commissioner’s decision records that:
“[4] The employer failed to attend at the Hearing. The employer had also failed to attend earlier proceedings that had been scheduled for 21 January 2011. Mr Adrian Cremona a Director of the employer has not provided any acceptable explanation for his repeated failures to attend to properly notified proceedings held before FWA. Consequently the Hearing of the matter on 12 May 2011 proceeded exparte. ....”
[5] The principles applicable to the granting of a stay order were set out by a Full Bench of the Australian Industrial Relations Commission in Edghill v Kellow-Faulkner Motors Pty Ltd 3 in the following terms:
“In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospect of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.”
[6] I am satisfied that there is an arguable case that the Commissioner erred in his consideration of the reasons for Mr Cremona’s failure to attend the hearing on 12 May 2011.
[7] In terms of the balance of convenience, I have noted that Mr Cremona asserts that he is unable to make payment of the amount specified in the Commissioner’s order. A failure to comply with an order may result in court action and is not, of itself, a basis for the granting of a stay. However, in this situation it appears logical to defer likely disputation over compliance with the Commissioner’s order pending determination of the appeal.
[8] I am satisfied that an order should be made [PR510454] to stay the operation of the order of Commissioner Cambridge of 24 May 2011 4 until the appeal against the decision is determined, or until further order of Fair Work Australia.
SENIOR DEPUTY PRESIDENT
Appearances:
A Cremona on his own behalf, formerly trading as Frooty Fresh.
P Moore counsel for Mr Lane.
Hearing details:
2011.
Adelaide:
June 9 (by Telephone).
1 [2011] FWA 3214, PR509827
2 PR509829
3 Print S4216
4 PR509829
Printed by authority of the Commonwealth Government Printer
<Price code A, PR510453>
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