Cosco Holdings Pty Ltd v Thi Thu Van Do

[1997] IRCA 257

DECISION NO:257/97

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA	)
)
QUEENSLAND DISTRICT REGISTRY	) 1330, 1331, 1332, 1333, ) 1334, 1364  of 1995
)
GENERAL DIVISION	)

BETWEEN:             

Cosco Holdings Pty Ltd
Applicant

  AND:  

Thi Thu Van Do
First Respondent

Lan Ngoc Thi Quan
Second Respondent

Hahn Huu Nguyen
Third Respondent

Thao Ngoc Hoang
Fourth Respondent

Loan Ahn Nguyen
Fifth Respondent

Thanh Duc Hua
Sixth Respondent

JUDGE(S):	MADGWICK J
PLACE:	SYDNEY
DATED:	23 JULY 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. A stay of orders 1, 2, 3, 4, 5, and 6(b) is granted on condition that there be paid out, within 3 days, from the sums already paid into court, to each of the respondents, the following respective amounts:

(a)Three thousand nine hundred dollars ($3,900) to Mr Thi Thu Van Do;

(b)Three thousand nine hundred dollars ($3,900) to Ms Lan Ngoc Thi Quan;

(c)Three thousand six hundred dollars ($3,600) to Mr Hahn Huu Nguyen;

(d)Two thousand six hundred dollars ($2,600) to Mr Thao Ngoc Hoang;

(e)Three thousand nine hundred dollars ($3,900) to Ms Loan Ahn Nguyen; and

(f)Fourteen thousand dollars ($14,000) to Mr Thanh Duc Hua.

1. Order 7(a) made on 9 July 1997 is to be amended as follows:

“Upon payment by 30 July 1997 to the solicitors of the applicant of the sum of thirty two thousand and forty five dollars and seventy cents ($32,045.70), and the filing and service of evidence thereof; and”.

1. A stay is refused in relation to order 6(a).

1. A stay, pending the hearing of the appeal, in relation to order 9 is granted.

1. The costs of this application are reserved for the Full Court.

1. Each party has liberty to apply on 48 hours notice once the hearing date of the appeal is known.

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA	)
)
QUEENSLAND DISTRICT REGISTRY	) 1330, 1331, 1332, 1333, ) 1334, 1364  of 1995
)
GENERAL DIVISION	)

BETWEEN:             

Cosco Holdings Pty Ltd
Applicant

  AND:  

Thi Thu Van Do
First Respondent

Lan Ngoc Thi Quan
Second Respondent

Hahn Huu Nguyen
Third Respondent

Thao Ngoc Hoang
Fourth Respondent

Loan Ahn Nguyen
Fifth Respondent

Thanh Duc Hua
Sixth Respondent

JUDGE(S):	MADGWICK J
PLACE:	SYDNEY
DATED:	23 JULY 1997

EX TEMPORE REASONS FOR JUDGMENT
(Revised from transcript)

HIS HONOUR:   These are a number of applications that orders made by me on 9 July 1997 be stayed pending an appeal from my judgment in these matters which were heard together.  I gave my principal reasons for decision on 30 June 1997.

The position is this: that in respect of two of the respondents to the appeal, the sum of $17,000 was paid into Court on 24 January 1997 in compliance with an order of Spender J in connection with stay applications.  The appellant's solicitors are holding funds to the value of $32,000-odd for what they believe would be the tax payable in respect of the monies ordered to be paid to the respondents, and they have paid in another $47,000-odd in accordance with my said orders.  The appellant makes the point that on account of these payments, there is no fear that the appellant could or would not pay the amounts of the judgments, should the appeal in each case wholly or partially fail.

The appellant points to evidence and the obvious factual background in relation to the respondents that each was employed at a modest wage; that each at the very least was out of work for some months and in some cases has been out of work for a long time; that each had substantial financial commitments at the time of the terminations of their employment; and each, I think, had family obligations.  An inference can readily be drawn that the liquidity of each, whatever their assets, is likely to be highly strained.

It is said that in accordance with the usual practice of the Court, a fairly prompt appeal hearing can be expected and so any additional wait by the respondents would not be long.  If any substantial part of the funds paid into Court is paid out to any of the respondents, their financial circumstances are such that there will be a substantial risk that each could be called upon to spend the sum and therefore difficulty and embarrassment would attend the securing of their repayment of the amount, should the appellants' appeal succeed to a material extent.

In relation to the employee Mr Hua who was ordered to be reinstated, there is evidence before the Court from the managing director of the appellant company that, if he is reinstated, the appellant will be forced to terminate another employee's employment and that this would cause disruption to other staff.  It is also argued that if he be reinstated and the appeal should succeed then false hope will have been given to him, and needless disruption of the life of another employee, and to other employees will have been caused.

Counsel for the respondents, Ms Treston, in succinct and able written submissions points out that while the appellant need not establish special or exceptional circumstances to warrant the imposition of a stay, it must be able to show some good reason for the Court to intervene and some positive evidence to show that there is a genuine risk the appellant will not be able to recover the amounts of the compensation ordered in each case.

She submits that there is no evidence that any of the respondents is impecunious, as distinct from the inference that they might be illiquia, and mere difficulty and social embarrassment attending repayments for anybody is hardly to be taken into account.  She stresses that the respondents are in receipt of two judgments in their favour from the Court and that they have then been kept out of their money for nearly two years.  In relation to the order that Mr Hua is to be reinstated, she points out that the employer is in possession of two judgments which now must be taken to be prima facie correct, and that any disruption in staffing arrangements arising from reinstatement results solely from the unlawful termination and could hardly be regarded as a good reason for the granting of the stay.

Counsel for the applicant, Mr Cooke, points to a decision in the New South Wales Court of Appeal where difficulty of recovery, as distinct from impossibility, was regarded as a relevant factor by the Court on a stay application. 

Respect must, of course, be paid to the fact that each of the respondents has obtained not one but two judgments of the Court. 

Some effort must be made by me to have regard to the prospects of success in the appeal.  For the reasons I gave for the judgment appealed from, I consider that there is little prospect of success on the ground that Kenefick v Australian Submarine Corporation Pty Ltd (No 2) (1996) 65 IR 366 was either wrong or distinguishable. In relation to the grounds which suggest that I erred in fact, I regard the appeal as instituted in good faith and it would be invidious for me to assume other than that the ground is fairly arguable. In relation to the ground that asserts that I erred in law in my understanding of a valid reason, I think that the appeal is fairly arguable but that because of the Kenefick point it is unlikely to affect the possible success of the appeal.  In relation to the appeal which asserts that I should have ordered the deduction from the amounts ordered to be paid to the respondents of amounts received by them for Social Security payments, on account of the way in which at trial the matter was decided against the appellants, I would think there is little prospect of success.  In respect of the ground that suggests that interest be applied at all to the awards, I would think that there is little prospect of success.  I would regard the argument that eight per cent is excessive as fairly arguable. 

The ground as to costs does not really affect what has happened here.  I will give a stay in relation to the costs order. 

As I read the notice of appeal, there is no specific appeal about the employee ordered to be reinstated and, even assuming some amendment in the notice of appeal, in the absence of any real detail I simply have to assume that there is little prospect of success in relation to any such appeal.

Although I was a member of the Full Court in Norman v Besser Industries (NT) Pty Ltd (Industrial Relations Court of Australia, Full Court, 1 August 1996) which established that while no special reason need be shown for a stay, some positive good reason should be shown, I must say that I lean towards trying to do what is practical, even if it stretches principle.  It seems to me that there is something to be said for the considerations adverted to by Mr Cooke.  On the other hand, one cannot overlook the fact that the employees have long been kept out of their money, that they have two judgments in their favour, and that overall the prospects of relevant success on the appeal must be said to be somewhat less than average.  The amounts are fairly large in total, although each matter is to be considered separately. 

I consider that no real case to which the Court ought give credence is made out in relation to the reinstatement of the employee Mr Hua.  A reinstatement usually involves difficulties of the kind referred to, particularly when there has been a delay in the legal determination of the matter, and if the Court were to have regard to such matters it would run the risk of giving rise to discretionary arguments against an employee simply by failing to have respect for its own judgments and orders which, it is trite, are to be regarded at this stage as prima facie correct.  There will be no stay in relation to the order that Mr Hua be reinstated.

In relation to the amounts that have been ordered to be paid I am going to adopt a pragmatic approach.  There will be a stay as to the amounts that ought to be paid in each matter conditionally upon payment out to each of the respondents of the following amounts:  Thu Thi Van Do payment out of $3900; Lan Ngoc Thi payment out of $3900; Lan Ngoc Thi Quan payment out of $3600;  Hahn Huu Nguyen payment out of $3800;  Thao Ngoc Hoang payment out of $2600; Loan Anh Nguyen payment out of $3900; and Thanh Duc Hua payment out of $14,000.  The payment out should occur within 3 days of today's date.

I will amend order 7(a) of my orders of 9 July 1997 so that it reads:

“Upon payment by 30 July 1997 to the solicitors of the affidavit of the sum of $32,045.70 and the filing and service of evidence thereof; and”. 

That will take care of what has happened in relation to the tax monies.

I will give the parties liberty to apply on 48 hours notice once the date of the hearing of the appeal is known.

There will be a stay in relation to my costs order, no opposition being offered to that. 

I will reserve the question of the costs of this present application for the Full Court which hears the appeal.

I certify that this and the preceding three (3) pages are a true copy of the Ex Tempore Reasons for Judgment herein of the Honourable Justice Madgwick

Associate:

Dated:            23 July 1997

Counsel for the Applicant:	M Cooke QC
Solicitor for the Applicant:	Minter Ellison
Counsel for the Respondent:	R Treston
Solicitor for the Respondent:	Quinlan, Miller & Treston
Date of Hearing:	23 July 1997
Date of Judgment:	23 July 1997