Miller, David v Central Gippsland Region Water Authority

[1997] FCA 1223

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VI 108 of 1997

BETWEEN:

DAVID MILLER

Applicant

AND:

CENTRAL GIPPSLAND REGION WATER AUTHORITY
Respondent

JUDGE:

RYAN J

DATE:

30 OCTOBER 1997

PLACE:

MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

There is before the Court a motion for review of an order made by a Judicial Registrar on 2 October 1997.  That order was to this effect:

1.Pursuant to Section 170EE(3) of the Workplace Relations Act 1996, the respondent pay to the applicant compensation in the sum of $40,000.00

2.Payment in accordance with Order 1 herein be within 21 days of the date of this order.

By its notice on motion dated 23 October 1997 in addition to the application for a review of the order of the Judicial Registrar the respondent seeks that those orders be stayed pending the hearing and determination of the review or further order.  The affidavit in support of that application for a stay indicated that the applicant was unemployed and had given evidence before the Judicial Registrar that the only work which he had performed since the termination of his employment by the respondent had been unpaid work in his wife’s Roger David menswear store in Traralgon.

The affidavit in support continued:

20.The Applicant also gave evidence and the Judicial Registrar found that there was little opportunity or prospect for employment for the Applicant in the region in which he resides.

That affidavit was answered by an affidavit sworn by the applicant’s solicitor who deposed in paragraph 11:

The Respondent has referred to the fact that the Applicant has been unemployed for a significant period.  The Applicant gave evidence that his work in the Roger David business ceased when that business was closed down in or about May 1997.  I am instructed by the Applicant that he is still unemployed and has been so since he gave evidence before Judicial Registrar Parkinson.

Apart from references to various judicial decisions, including decisions in this Court, that affidavit contains no other relevant assertion of fact than that contained in paragraph 14 to this effect:

I have informed the Applicant that if the review were to be decided against him he may be required to repay to the Respondent some or all of any amount paid to him before the determination of the review by way of compensation.

The principles governing a stay pending an appeal against an order or judgment which requires the payment of moneys have been set out in a number of judgments, including that of Northrop J in this Court in Commissioner for Superannuation v Hastings 5 AAR 197 where his Honour said at 199:

For present purposes, the relevant provision is that the Court may make an order staying or otherwise affecting the operation of the decision of the Tribunal as the Court or a Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal.

In that respect, the Court considers that prima facie, and I use that expression intentionally, a stay order should not be made, but that in an appropriate case, the Court will make an order.  Under similar but differently worded provisions applicable in Supreme Court proceedings, the Supreme Court of Victoria constituted by Adam J in Scarborough v Lewis Junction Stores Pty Ltd [1963] VR 129, at 130, set out considerations which are relevant in considering whether to grant a stay of an appeal in that Court. Those views were supported by Dawson J in the case of Commissioner of Taxation v Myer Emporium Limited (1986) 60 ALJR 300, at 301. One of the special circumstances which is relevant is that if the appeal were to be successful, whether the successful appellant would be deprived of the fruits of his appeal if a stay of execution were not granted.

Similar expressions of principle were adopted, or restated by a Full Court of the Industrial Relations Court of Australia in Norman v Besser Industries NT Pty Ltd, a judgment delivered on 1 August 1996, which is so far unreported. I take a similar view that prima facie stay orders should not be made, and I regard the application for a stay as carrying the burden of going forward with evidence demonstrating some risk out of the ordinary that if the moneys ordered by the Judicial Registrar were paid to the applicant they may not be recovered in the event that the respondent were to succeed on the review.

In the present case I consider that the respondent has failed to discharge that onus of showing circumstances which create a risk out of the ordinary, that it will not recover the amount of $0,000 compensation which it is required to pay pursuant to the order of the Judicial Registrar, and which will be held by the applicant between now and the hearing of the review.  I have explored with counsel the issues to be determined on the review, and it seems from that exploration that a considerable time will be occupied in the hearing of the review, and it is unlikely to be determined before early next year.

I do not regard that lapse of time as a consideration which displaces what I regard to be the prima facie position.  It is true that the evidence indicates that the respondent has been unemployed for a period approaching 12 months, and the inference which I would draw from the present state of the evidence is that his prospects of obtaining employment between now and the determination of the review are not good.  But in a sense that is a consideration which cuts both ways in the exercise of the discretion because the compensation to which he is prima facie entitled is a resource to which he would, in the ordinary course, be able to have recourse to ameliorate the consequences of his unemployment.

On the other hand there can of course be no suggestion that a substantial respondent of the character of the present respondent would suffer proportionate hardship if the risk to which it has pointed were to materialise.  In all the circumstances I do not regard the respondent as having discharged the onus which it bears of showing special circumstances of the kind required for this Court to grant a stay of the operation of the order of the Judicial Registrar pending a review.  To that extent the motion will therefore be dismissed.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:            30 October 1997

Counsel for the Applicant: (Respondent in the notice on motion)	Mr B Lawrence
Solicitor for the Applicant: (Respondent in the notice on motion)	A J Macken & Co
Counsel for the Respondent: (Applicant in the notice on motion)	Mr S Wood
Solicitor for the Respondent: (Applicant in the notice on motion)	Clayton Utz
Date of Hearing:	30 October 1997
Date of Judgment:	30 October 1997