Jokar Holdings Pty Ltd v T a Said
[2011] FWA 1953
•31 MARCH 2011
[2011] FWA 1953 |
|
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Jokar Holdings Pty Ltd
v
T A Said
(C2011/3542)
SENIOR DEPUTY PRESIDENT WATSON | MELBOURNE, 31 MARCH 2011 |
Appeal against decision [[2011] FWA 977] of Commissioner Asbury at Brisbane on 15 February 2011 in matter number U2009/10962 - Stay order granted.
[1] This is a decision given in transcript on 17 March 2011 (now edited).
[2] This is an application for a stay of the decision 1 of Asbury C of 15 February 2011 pending the hearing and determination of the appeal by a Full Bench. The principles for making a stay order are effected in the Full Bench decision in Edghill v Kellow-Falkiner Motors Pty Ltd2and they are:
“In determining whether to grant a stay application the Commission must be satisfied there is an arguable case with some reasonable prospect of success in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.”
[3] In relation to the first question, of an arguable case with some reasonable prospect of success in respect of both the question of leave to appeal and the substantive merits of the appeal, I find that there is such an arguable case, albeit not a strong one that there would be some reasonable prospect of success in respect of both the permission to appeal and the merits.
[4] I would indicate for the benefit of both parties that the appeal itself will be directed to the existence or otherwise of error on the part of Asbury C, having regard to the appeal principles applying and, in addition, the particular appeal right provisions in s.400 of the Fair Work Act 2009 which apply to matters concerning unfair dismissal. This observation is made, given the parties are unrepresented, to assist them in understanding the nature of appeal and the matters to which they will need to direct themselves.
[5] Having found there is an arguable case with some reasonable prospect of success, albeit not the strongest of cases but an arguable case of that nature nonetheless, it is necessary then to consider the balance of convenience. There are, obviously, conflicting considerations. Mr Said has succeeded in obtaining an order made by Asbury C in PR506768 and is entitled, prima facie, to the benefits of that order. Against that, Jokar Holdings Pty Ltd (Jokar) argues that it is at some risk of not receiving repayment of that amount in the event that it succeeds in the appeal.
[6] On balance, I find that the balance of convenience does favour the making of a stay order. In reaching that conclusion I have had regard to the fact that previous recoveries of moneys in respect of a telephone account required legal proceedings by Jokar. Further, any inconvenience caused to Mr Said would be offset to a significant degree by the securing of the amount ordered by Asbury C and the accrual of interest on that amount. I note in that context that Jokar is prepared to deposit the amount ordered by Asbury C in a trust account and that would have the effect of securing the moneys for Mr Said, in the event that the appeal fails.
[7] Accordingly, I will make an order staying the order of Asbury C, but it will be conditional on Jokar paying into an interest bearing trust account all moneys due; that is, the amount of $7,032.72, subject to taxation which would be due on that amount. In addition, being an interest bearing account, interest would accrue within that account for the benefit of Mr Said in the event that the appeal fails. I will shortly issue an order to that effect. The order 3 will operate on and from 17 March 2011, until the appeal against the decision of Asbury C is determined or until further order of Fair Work Australia.
SENIOR DEPUTY PRESIDENT
Appearances:
A Hill and J Hill on behalf of Jokar Holdings Pty Ltd.
T Said on his own behalf.
Hearing details:
2011.
Ashmore via video to Melbourne:
March 17.
1 [2011] FWA 977.
2 S4216 at paras 5 and 6.
3 PR507636.
<Price code A, PR507989>
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