Gadecki, Ewa v International Health and Beauty Aids Pty Ltd t/as Elly Lukas Beauty Therapy College

[1997] FCA 1241

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - stay application - applicable principles for staying orders of  Judicial Registrars

Workplace Relations Act 1996 Div 3 of Part VIA

Gregory Alan Norman v Besser Industries (NT) Pty Ltd (IRCA, Full Court, 1 Aug 1996, unreported)
Saltmarsh v Nicols (1997) 72 IR 61

EWA GADECKI v INTERNATIONAL HEALTH AND BEAUTY AIDS PTY LTD TRADING AS ELLY LUKAS BEAUTY THERAPY COLLEGE
VI 1087 of 1997

MARSHALL J
MELBOURNE
14 OCTOBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VI 1087  of   1997

BETWEEN:	EWA GADECKI APPLICANT
AND:	INTERNATIONAL HEALTH AND BEAUTY AIDS PTY LTD TRADING AS ELLY LUKAS BEAUTY THERAPY COLLEGE RESPONDENT
JUDGE:		MARSHALL J
DATE OF ORDER:		14 OCTOBER 1997
WHERE MADE:		MELBOURNE

THE COURT ORDERS THAT:

1.        The application for a stay of the orders of Judicial Registrar Ryan of 30 July 1997 be        dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VI 1087 of 1997

BETWEEN:	EWA GADECKI APPLICANT
AND:	INTERNATIONAL HEALTH AND BEAUTY AIDS PTY LTD TRADING AS ELLY LUKAS BEAUTY THERAPY COLLEGE RESPONDENT

JUDGE:	MARSHALL J
DATE:	14 OCTOBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

The matter before the Court this morning is an application by the respondent to stay the judgment and orders of Judicial Registrar Ryan of 30 July 1997 in which the Judicial Registrar ordered the respondent to pay the applicant compensation in the sum of $5,137.02 and damages in the sum of $366.93.

The principles to be applied where a stay is sought regarding an order of a Judicial Registrar in a matter under Div 3 of Part VIA of the Workplace Relations Act 1996 (“the Act”) are well established. See Gregory Alan Norman v Besser Industries (NT) Pty Ltd (Industrial Relations Court of Australia, Full Court, 1 August 1996, unreported).  A party seeking a stay of an order of a Judicial Registrar must establish an appropriate case to warrant a stay.

In this matter no affidavit was filed in support of the notice of motion for a stay until after the initial directions hearing.  Subsequent to that directions hearing the applicant filed an affidavit of her solicitor, David Cameron Langmead.  Mr Langmead made the following points in his affidavit:

• the applicant is in full-time employment and is meeting her financial commitments;

• the applicant is aware that should the stay be refused and should the respondent succeed on the review she would be liable to repay any monies she receives as a result of the respondent’s compliance with the order of the Judicial Registrar;  and

• the applicant will re-pay any such monies in the circumstances referred to immediately above.

In response the respondent filed two affidavits.  The first was sworn by its Manager, Alex Zotos.  Mr Zotos made the following relevant points in his evidence:

• the applicant is a single mother with two teenage daughters;

• the applicant was in a difficult financial position during the course of her employment with the respondent; and

• in his opinion, the applicant will have difficulty re-paying any monies to the respondent if the respondent is successful on the review.

The second affidavit was sworn by Janelle Sutton.  Ms Sutton was the Manager of the respondent at the time the applicant was employed by it.  She deposed that the applicant  frequently requested to be paid in cash “as she could not wait for her cheque to clear”.

In reply the applicant swore an affidavit in which she confirmed the matters referred to in Mr Langmead’s affidavit.

The effect of the evidence before the Court is that the applicant experienced financial difficulties when she was employed by the respondent but no longer experiences such difficulties.

In my view there is no sound evidentiary basis to support Mr Zotos’ concern that the respondent will have difficulty recovering money from the applicant if the respondent is successful on the review.

The Court is not prepared to assume that the applicant would act disreputably by refusing to re-pay any such monies.  See Saltmarsh v Nicols (1997) 72 IR 61.

Accordingly the respondent has not demonstrated an appropriate case for a stay of the order of Judicial Registrar Ryan.  The sums referred to in that order remain payable and should be paid as soon as possible to the applicant’s solicitors.  The Court will now make directions for the conduct of the review.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall

Associate:

Dated:            

Counsel for the Applicant:	Mr David Langmead
Solicitor for the Applicant:	Maurice Blackburn and Co
Counsel for the Respondent:	Mr Bruce Shaw
Solicitors for the Respondent:	Tucker Pietrzak
Date of Hearing:	14 October 1997
Date of Judgment:	14 October 1997