Emerald Industries Pty Ltd v Jenkins

[2001] QCA 522

[2001] QCA 522
COURT OF APPEAL

McMURDO P

Appeal No 532 of 2001

PETER DAVID JENKINS                  Respondent (Plaintiff)

and

EMERALD INDUSTRIES PTY LTD First Appellant (First Defendant)

and

WORKCOVER QUEENSLAND     Second Appellant (Second Defendant)

BRISBANE

..DATE 20/11/2001

ORDER

THE PRESIDENT:  This appeal was filed on 16 January 2001.  All relevant material has been filed since 18 July 2001 and the matter appeared to be ready to proceed.  On 17 May the respondent wrote seeking to have the matter placed in abeyance pending the High Court decision in Tanks v. WorkCover.  The appellant has opposed the matter being placed in abeyance although at one time the parties consented to the matters being placed in abeyance. 

The matter was listed before me so that it could be case managed and progressed.  On 2 November the respondent filed an application seeking the prosecution of this appeal be stayed until further order because of the appeal in Tanks v. WorkCover to the High Court.  The application for special leave has not yet been heard and it is unknown when it will be heard but it is unlikely to be heard before the middle of next year even if leave is granted.  There will then be a further considerable period of time before any appeal would be heard.

The matter, the parties concede, is on all fours with Tanks v. WorkCover.  If the Court of Appeal decision in that case is correct then the appellant, the defendant below, must succeed in this appeal and, as I say, that is conceded by the parties.

It is difficult to see then why a full argument beyond the written submissions already prepared would be necessary
should the appeal be heard by this Court.  The applicant points out that it would be necessary to apply for a stay of any costs order in respect of the appeal pending the decision of the High Court in Tanks. 

The question is simply a question of law and it seems likely that if the High Court overturns the Court of Appeal decision in Tanks v. WorkCover, WorkCover would concede the applicant/respondent's position and not require the applicant to apply for special leave to the High Court. 
I note, however, that concession has not been made but I point out that it does seem the likely course in this case should the appeal in Tanks v. WorkCover be successful.

In my view these circumstances do not meet the extraordinary circumstances that an applicant must show to succeed in an application for a stay, see Mistearl v. Williams & Anor, [2000] QCA 14, Appeal No 9836 of 1999, 8 February 2000, and I refuse the application for a stay. The matter will be listed for hearing in the usual course.

...

THE PRESIDENT:  The applicant should pay the respondent's costs of this application in any event.

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