Carbone v McConvill & Associates (No 2)

McNab J of the Federal Circuit Court of Australia considered a dispute between an applicant and respondents concerning the payment of compensation and penalties ordered on 9 April 2021. The respondents sought a stay of these orders, including any pre-judgment interest, on the basis that they had filed an appeal in the Federal Court on 7 May 2021. The applicant opposed the stay, arguing that no formal application had been made to the court.

The court was required to determine whether to grant a stay of the judgment and pre-judgment interest orders, and how to calculate the pre-judgment interest. The respondents had sought a stay by correspondence and a draft minute of orders, but had not filed a formal application supported by affidavit as required by rule 29.04 of the Federal Circuit Court of Australia Rules 2001 (Cth).

McNab J reasoned that pre-judgment interest should be calculated on the amounts ordered for breaches of the Fair Work Act (FW Act) and the Australian Consumer Law (ACL). Section 547 of the FW Act mandates the inclusion of interest in an order unless good cause is shown otherwise, and requires consideration of the period between the cause of action arising and the order being made. The court found that the annual leave entitlement, though claimed under the ACL, was an amount required to be paid under the FW Act. Alternatively, an entitlement to interest existed under section 76 of the Federal Circuit Court of Australia Act 1999 (Cth). Accordingly, the court ordered pre-judgment interest in the sum of $21,944.70.

Regarding the stay application, McNab J noted that no formal application had been filed. Consequently, the court declined to make an order granting a stay at that time.