Derry v Best Deals Travel Pty Ltd

[2013] QCATA 354

CITATION: Derry v Best Deals Travel Pty Ltd [2013] QCATA 354

PARTIES:	Mr Justin John Derry (Appellant)
v
Best Deals Travel Pty Ltd (Respondent)

APPLICATION NUMBER: APL163 -13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe OAM,

DELIVERED ON: 22 April 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1. The application for a stay is refused.

CATCHWORDS:

MINOR CIVIL DISPUTE – whether grounds for a stay of decision

Queensland Civil and Administrative Tribunal Act 2009 s 145(2).

Commissioner of Taxation (Cth) v The Myer Emporium Ltd (No 1) (1986) 160 CLR 220
JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Asia Pacific International Pty Ltd v Peel Valley Mushrooms Ltd [1999] 2 Qd R 458
Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347

APPEARANCES and REPRESENTATION (if any):

The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

1. On 3 April 2013, an Adjudicator ordered Mr Derry to pay $10,800 for travel costs organised by Best Deals Travel Pty Ltd. Mr Derry has applied for leave to appeal that decision. He also wants the tribunal to stay the operation of that decision. 

2. The tribunal has power to make an order staying the operation of an original decision, until that appeal is finally decided.[1] The normal rule is, of course, that a party is entitled to the ‘fruits’ of the litigation, a phrase which typically includes a judgment.[2]  While it has been suggested that an applicant for a stay must establish ‘special circumstances’[3] before an order will be made, it has also been said that the discretion is unfettered and that the applicant must demonstrate a basis for a stay, with particular emphasis upon such matters as the balance of convenience, and the competing rights of the parties.[4]

   [1]           Queensland Civil and Administrative Tribunal Act2009 s 145(2)

   [2]Commissioner of Taxation (Cth) v The Myer Emporium Ltd (No 1) (1986) 160 CLR 220 at 222-3 per Dawson J.

   [3]JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255 at 258.

   [4]        Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-5.

3. To succeed in an application for a stay Mr Derry must show good reason for the stay to be granted[5] and that it is an appropriate case to grant a stay.[6]   Jerrard JA set out the matters for consideration in Elphick v MMI General Insurance Ltd & Anor[7]. Did the applicant demonstrate that he or she has a good, arguable case on appeal? Will the applicant be disadvantaged if a stay is not ordered? The tribunal should consider that the competing disadvantage to the respondent, should the stay be granted, does not outweigh the disadvantage suffered by the applicant if the stay is not granted.  The applicant should also show that its success on appeal would not be rendered nugatory if the order appealed from is not stayed in the interim.

   [5]JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255 at 259.

   [6]        Asia Pacific International Pty Ltd v Peel Valley Mushrooms Ltd [1999] 2 Qd R 458.

   [7] [2002] QCA 347 at [4].

4. Mr Derry has not demonstrated that he has a good arguable case on appeal. He has not demonstrated that he will be disadvantaged if a stay is not ordered and he has not demonstrated that the appeal will be of no effect if the stay is not granted.

5. The application for a stay of the decision dated 3 April 2013 is refused.