Derek Graham Nicholson v D J Mighell

[1995] IRCA 562

CATCHWORDS

INDUSTRIAL LAW - PRACTICE AND PROCEDURE - APPEAL - Application to stay a judgment pending determination of appeal - Principles to be applied - Discretion in court - Special or exceptional circumstances - Stay refused

Industrial Relations Act 1988

The Commissioner of Taxation of the Commonwealth of Australia v Myer EmporiumLimited (1986) 160 CLR 220, 222

Kerrin v Leighton Contractors Pty Ltd (No 2) (1986) 44 IR 246, 249

Meneling StationPty Ltd v Australasian Meat Industry Employees Union (1987) 20 IR 296, 297

Nos. VI 4764 & 4765 of 1995

DEREK GRAHAM NICHOLSON v D.J. MIGHELL AND OTHERS

Marshall J
Melbourne
6 October 1995

IN THE INDUSTRIAL RELATIONS        )
  )
COURT OF AUSTRALIA  )
  )

VICTORIA DISTRICT REGISTRY  )  No. VI 4764 of 1995

DEREK GRAHAM NICHOLSON

Applicant

D.J. MIGHELL AND OTHERS

Respondent

JUDGE:         Marshall J
PLACE:         Melbourne
DATE:  6 October 1995

ORDER

THE COURT ORDERS THAT:

1. The application for stay of the orders of 18 September 1995 is dismissed.

NOTE:             Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS        )
  )
COURT OF AUSTRALIA  )
  )

VICTORIA DISTRICT REGISTRY  )  No. VI 4765 of 1995

DEREK GRAHAM NICHOLSON

Applicant

D.J. MIGHELL AND OTHERS

Parties

JUDGE:         Marshall J
PLACE:         Melbourne
DATE:  6 October 1995

ORDER

THE COURT ORDERS THAT:

1. The application for stay of the orders of 18 September 1995 is dismissed.

NOTE:             Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS        )
  )
COURT OF AUSTRALIA  )
  )

VICTORIA DISTRICT REGISTRY  )  No. VI 4764 of 1995

DEREK GRAHAM NICHOLSON

Applicant

D.J. MIGHELL AND OTHERS

Respondents

No. VI 4765 of 1995

DEREK GRAHAM NICHOLSON

Applicant

D.J. MIGHELL AND OTHERS

Parties

JUDGE:         Marshall J
PLACE:         Melbourne
DATE:  6 October 1995

EX-TEMPORE REASONS FOR JUDGMENT

AS REVISED FROM THE TRANSCRIPT

On 18 September 1995 the Court made certain orders the effect of which was to set aside the declaration of election to office of certain persons and to provide for new elections to be conducted for those offices.   The successful candidates for the offices of Branch Secretary, Branch Assistant Secretary and two Organiser positions have applied to the Court to stay the operation of those orders pending an appeal in relation to the order in the matter concerning the Organisers and an application for prerogative relief regarding the order concerning the offices of Branch Secretary and Branch Assistant Secretary.

The Court heard that stay application this morning.   It is well established that a party who applies to stay orders of a Court pending the hearing and determination of an appeal is required to show special or exceptional circumstances to justify the making of such orders.   Such party is also required to justify “... departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal”.: The Commissioner of Taxation of the Commonwealth of Australia v Myer EmporiumLimited (1986) 160 CLR 220 at 222 per Dawson J. See also  Kerrin v Leighton Contractors Pty Ltd (No 2) (1986) 44 IR 246 (“Kerrin”) and Meneling StationPty Ltd v Australasian Meat Industry Employees Union (1987) 20 IR 296 (“Meneling”). 

In Meneling Bowen CJ said on the question of a stay at 296-297:-

“It is a matter of discretion for this Court.  It is necessary for anyone who applies for a stay to demonstrate that it is a case for a stay.   This is sometimes put on the basis of showing special or exceptional circumstances or, as was put in Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685, that it is ‘an appropriate case’, without laying down what are the limits of appropriate cases.”

Mr Borenstein, for the parties who seek a stay accepts that special or exceptional circumstances are required but contends that there are special or exceptional circumstances in this matter which militate against the prima facie position.  Those circumstances he contends are:-

• First, the effect on his clients of the continuation of the order on their income and the need for them to campaign in any new election.

• Second, the effect on the smooth functioning of the organisation when it is possible that one set of officers may be elected in a new election but possibly displaced by the decision of the Full Court.

• Third, the cost to the public purse involved in the conduct of an election which may need not to be conducted.

I do not believe that those circumstances constitute special or exceptional circumstances.   If the Full Court overturns the orders which are challenged by Mr Borenstein's clients those persons will be restored to the offices to which they will be held then to have been rightly elected to on 29 and 30 August respectively, in the event that they are not successful in the new elections.

This is not a case where the refusal to grant a stay will render the appeal or prerogative relief nugatory.   It is put that the rights of such persons will alter dramatically if a stay is not granted in that they will be without income.   Those persons hold office pursuant to an interim holding over order which expires later today but which may be extended.   I am not able to say with any certainty that those persons will be deprived of income if the stay is refused.

Even if a holding over order is made in favour of Messrs Main and Gray, and it is held that such persons never truly ceased to hold office, Messrs Mighell and Marshall would still have a strong claim to be treated as Organisers and to be paid as such.  

The question of the need to campaign will be a difficulty that will be faced by all who stand for the office should the stay be refused in the full knowledge of the existence of the appeal and the application for prerogative relief.

Finally, the Australian Electoral Commission, made no complaint through its solicitor about having to conduct an election which may prove to be of no legal effect.   In that context I do not believe that the matter of it having to thereby expend resources is a special or exceptional circumstance warranting the grant of a stay.

In Kerrin Gray J said at 249:

“In the result where each party might be in some fashion deprived of the fruits of an actual or potential victory, depending upon the outcome of the appeal, it seems to me to be appropriate that the ordinary rule should operate and that the appeal should not be the occasion for a stay of the order of the Court.   The effect of this will be that Mr Kerrin will be entitled to be reinstated immediately to the same or a similar position.  If some industrial disruption does occur as a result of that, then perhaps it might truly be said that such industrial disruption is a consequence of what the Court can only, at present, regard as a defendant's criminal act in dismissing Mr Kerrin at the time when it did.”

A new election will be conducted.   If some disruption arises as a result of that it might truly be said to be as a result of what the Court can only, at present, regard as a consequence of the act of Mr Borenstein's clients in nominating for incompatible offices.  I decline to stay the orders sought to be stayed.   I also decline to grant a stay of 21 days pending Mr Borenstein's clients moving a Full Court to grant a stay.  

If the current foreshadowed timetable for the new election is not adhered to a ballot may not be possible until February 1996.   It is important in the interests of the membership of the organisation that expedition occur in the conduct of any new election.  I will now hear submissions on the holding over issue.

I certify that this and the preceding 4 pages are a true copy of the Reasons for Judgment herein of His Honour Justice Marshall.

Associate:

Date:  6 October 1995

VI 4764 of 1994

Counsel for the Applicant:  Mr M Bromberg

Solicitor for the Applicant:  J N Zigouras & Co

Solicitor for the Australian
Electoral Commission and the
Returning Officer:  Mr R Hallowell of the Australian
  Government Solicitor

Counsel for Messrs Mighell
and Marshall:  Mr H Borenstein

Solicitor for Messrs Mighell
and Marshall:  Howie & Maher

Counsel for the Communications,
Electrical, Electronic, Energy,
Information, Postal, Plumbing
and Allied Services Union of  
Australia:  Mr J. Nolan

Solicitor for the Communications,
Electrical, Electronic, Energy,
Information, Postal, Plumbing
and Allied Services Union of  
Australia:  Jones Staff & Co

Solicitor for various other
Respondents:  Mr R Lamplugh of Dwyer & Co

Date of hearing:  6 October 1995

Date of judgment:  6 October 1995

No. VI 4765 of 1995

Counsel for the Applicant:  Mr M Bromberg

Solicitor for the Applicant:  J N Zigouras & Co

Solicitor for the Australian
Electoral Commission and the
Returning Officer:  Mr R Hallowell of the Australian
  Government Solicitor

Counsel for Messrs Mighell
and Marshall:  Mr H Borenstein

Solicitor for Messrs Mighell
and Marshall:  Howie & Maher

Counsel for the Communications,
Electrical, Electronic, Energy,
Information, Postal, Plumbing
and Allied Services Union of  
Australia:  Mr J. Nolan

Solicitor for the Communications,
Electrical, Electronic, Energy,
Information, Postal, Plumbing
and Allied Services Union of  
Australia:  Jones Staff & Co

Solicitor for various other Parties:                 Mr R Lamplugh of Dwyer & Co

Date of hearing:  6 October 1995

Date of judgment:  6 October 1995