Potter v Pilot Freight Pty Ltd

[1996] IRCA 320

DECISION NO:  320/96

CATCHWORDS

INDUSTRIAL LAW - review of decision of JUDICIAL REGISTRAR - respondent seeking a stay of the order of the JUDICIAL REGISTRAR - exercise of discretion - test to be applied - whether there are good reasons for the Court to intervene - relevant considerations include evidence of the applicant’s ability to repay

Industrial Relations Act 1988 ss 170EA, 377
Evidence Act 1995 s 75

Alexander v Cambridge Credit Corporation (Receivers Appointed) (1985) 2 NSWLR 685

Bysouth v Tawlord Nominees Pty Ltd (1995) 60 IR 446

Norman v Besser Industries (NT) Pty Ltd and Stone v Besser Industries (NT) Pty Ltd, Industrial Relations Court of Australia, DI 95/1191R & DI 95/1192R, North J, 2 May 1996, unreported

Powerflex Services Pty Ltd v Data Access Corporation, Federal Court of Australia, Full Court, VG 295 of 1996, 4 June 1996, unreported

No. VI 4943R of 1995.
STEPHEN EARLSFORD POTTER v PILOT FREIGHT PTY LTD

CORAM:    Marshall J
PLACE:    Melbourne
DATE:     1 July 1996

IN THE INDUSTRIAL RELATIONS  )
COURT OF AUSTRALIA          )
VICTORIA DISTRICT REGISTRY   )
  No. VI 4943R of 1995

BETWEEN:    STEPHEN EARLSFORD POTTER

Applicant

AND:          PILOT FREIGHT PTY LTD
  Respondent

CORAM:    Marshall J
PLACE:    Melbourne
DATE:     1 July 1996

ORDER

THE COURT ORDERS THAT:

1.Paragraph 2 of the notice of motion be dismissed but that the respondent have until 4:00pm on Monday, 8 July 1996 to pay the amount of compensation ordered by Judicial Registrar Ryan to the applicant.

2.On or before 1 September 1996 each party shall file and serve a list of relevant documents verified by affidavit.

3.The matter be placed in the list of cases awaiting trial and it is noted that the matter will be conducted as a de novo hearing, at this stage, without the assistance of transcript or exhibits before the Judicial Registrar but subject to review by the parties by consent and it is also noted that the hearing of the review is expected to take two court sitting days.

4.Liberty to apply be reserved on not less than 48 hours notice to each other party.

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

IN THE INDUSTRIAL RELATIONS  )
COURT OF AUSTRALIA          )
VICTORIA DISTRICT REGISTRY   )
  No. VI 4943R of 1995

BETWEEN:    STEPHEN EARLSFORD POTTER

Applicant

AND:          PILOT FREIGHT PTY LTD
  Respondent

CORAM:    Marshall J
PLACE:    Melbourne
DATE:     1 July 1996

EX-TEMPORE REASONS FOR JUDGMENT
AS REVISED FROM TRANSCRIPT

On 22 September 1995, the applicant lodged in the Registry of the Industrial Relations Court of Australia an application pursuant to s 170EA Industrial Relations Act 1988 (“the Act”). The applicant indicated in his application that he was seeking compensation in respect of what he alleged was the unlawful termination of his employment by the respondent.

The matter was referred to the Australian Industrial Relations Commission (“the Commission”) for conciliation.  On 18 December 1995, Deputy President Drake certified that the Commission was unable to settle the matter by conciliation.

The proceeding was heard by Judicial Registrar Ryan on 15, 16 and 17 May 1996.  On 17 May 1996 the Judicial Registrar delivered his extempore reasons for judgement and ordered:

“That the Respondent pay the Applicant compensation in the sum of $25,480 to be paid to the Applicant within 28 days of judgment today.”

On 28 May 1996, the respondent filed in the Registry a notice of motion and supporting affidavit. The notice of motion sought a review of the decision and order of Judicial Registrar Ryan pursuant to section 377(1) of the Act. It also sought an order:

“That the order made on 17 May 1996 be stayed until the determination of the review or further order of the Court.”

The affidavit in support of the notice of motion was an affidavit of Robert Thomas Ironmonger who also appeared as advocate for the respondent.  Mr Ironmonger is a senior consultant and employee of the Victorian Employers’ Chamber of Commerce and Industry.

Paragraph 9 of the affidavit provided as follows:

“The respondent seeks a stay of the [decision] of Judicial Registrar Ryan on the following grounds:

(a)The respondent believes that if the monies are paid to the applicant, the monies may not be recovered should the respondent be successful on review;

(b)The respondent makes this assertion from the evidence of financial hardship made by the applicant which the applicant is experiencing following his retrenchment;

(c)Any other ground that the Court may deem fair and reasonable.”

The notice of motion came before the Court at the directions hearing this morning.  There was a debate between Mr Ironmonger and Mr Dowling, solicitor, who appeared for the applicant, as to whether or not the applicant and the respondent had reached some understanding about the nature of an agreed position on the question of the stay.  The Court adjourned the matter until 2:15pm this afternoon to enable the parties to investigate that matter.

When the matter proceeded before the Court this afternoon, the parties indicated that the application for a stay was being contested. Mr Dowling, at the outset, sought to object to paragraph 9 of the affidavit of Mr Ironmonger on the basis that it was of a hearsay nature and did not clearly state the source of the belief. I overruled his objection on the basis that s 75 of the Evidence Act 1995 (Cth) allows the Court to admit hearsay evidence in interlocutory proceedings.

As to the complaint that the relevant material objected to does not disclose the source of the assertions, the Court believes that a broad view should be taken of the affidavit and when one uses common sense it is discernible that the affidavit material was indicating that the respondent had communicated that view to Mr Ironmonger.

However, the question of the weight that the Court should accord to the evidence in paragraph 9 is another issue.

In support of his application for a stay, Mr Ironmonger contended that the mere filing of a notice of motion and affidavit in support operates as a stay of the orders of the Judicial Registrar.  I do not accept that submission and there is no authority in the Court to support it.  As Mr Dowling pointed out, a notice of motion seeking a review may be lodged and not pursued.  If nothing further happens, the order of the Judicial Registrar would stand.  In my view, the assertion that the order of the Judicial Registrar simply becomes a nullity on the lodging of a notice of motion seeking a review is a legal heresy.

Given that the Court has a discretion as to whether it should in any given case stay a decision of a Judicial Registrar or stay an order of a Judicial Registrar pending a review, it is appropriate to consider the relevant test that might be adopted in the exercise of that discretion.  So far as I am aware, in only two decisions of the Court has there been a consideration of the relevant test that ought to be adopted in considering an application to stay an order of a Judicial Registrar pending the hearing and determination of a review.

In Bysouth v Tawlord Nominees Pty Ltd (1995) 60 IR 446 (“Bysouth”) Keely J held that it would be contrary to equity, law and principle that the employer should be ordered to make good the applicant’s relief before the issues between the parties are judicial determined by the Court in its original jurisdiction. That was, it appears, the effect of his adoption at 449 of the decision of a submission in substantially those terms. Consequently, his Honour held that:

“[T]he proper course in all the circumstances is to order that the amount of $6000 ordered by Judicial Registrar Fleming on 28 February 1995 to be paid to the applicant, be paid by the respondent employer on or before 4 July 1995 to the Registrar of the Court to be held in trust in an interest-bearing account pending the hearing and determination of this matter or further order.”

His Honour did not consider the establishment of a test to apply in circumstances where a party seeks to stay an order of a Judicial Registrar pending a review before a single Judge of the Court.

Mr Ironmonger conceded that in the event that I was not persuaded by his primary submission as to the automaticity of a review in respect to staying the orders of a Judicial Registrar, then there must be some test upon which the Court could properly exercise its discretion.

I do not find any assistance in Bysouth as to the appropriate test.  To the extent that it is implicit in that decision that the issues between the parties have not been judicially determined by the Court in its original jurisdiction, I am, with regret, in disagreement with the conclusions of his Honour, Keely J.

In my view, decisions and orders of Judicial Registrars are decisions and orders of the Court in every sense of those words. They must be complied with in the absence of a stay order pending a review. No materially different consequences should, in my view, apply merely because a Judge is considering an application to stay an order made by a Judicial Registrar rather than one made by a Judge. Upon the regular serving and filing of a notice of motion seeking a review of an exercise of power by a Judicial Registrar, that exercise of power manifested in the order of the Judicial Registrar is not to be treated as if it was never made. This is so, notwithstanding that there is an automatic right to review under section 377 of the Act.

I find persuasive the judgment of North J in the decision of Norman v Besser Industries (NT) Pty Ltd and Stone v Besser Industries (NT) Pty Ltd, Industrial Relations Court of Australia, DI 95/1191R & DI 95/1192R, North J, 2 May 1996, unreported (”Besser”) wherein his Honour held at page 3 of the decision that the appropriate test in all the circumstances was whether there was some good reason for the Court to intervene.  His Honour's approach is consistent with the approach recently adopted by a Full Court of the Federal Court in Powerflex Services Pty Ltd v Data Access Corporation, Federal Court of Australia Full Court, VG 295 of 1996, 4 June 1996, unreported (“Powerflex”).

In that matter, the Full Court of the Federal Court followed a decision of the New South Wales Court of Appeal in Alexander v Cambridge Credit Corporation (Receivers Appointed) (1985) 2 NSWLR 685 at 694, where the Court of Appeal held that it was:

“sufficient that the applicant for the stay demonstrates a reason or an appropriate case to warrant the exercise of discretion in his favour.”

The case of Powerflex involved a situation where there was an appeal against a decision of a single Judge of the Federal Court and an application for a stay pending the hearing of the appeal by the Full Court.  In my view, no materially different consideration should apply to that sort of circumstance and to the present circumstances where the Court is asked to stay an order of a Judicial Registrar pending a review.

Mr Ironmonger submitted that in this case there was an appropriate or good reason for the court to intervene stemming from the concerns outlined in paragraph 9 of his affidavit.  I find that evidence as to an individual's capacity to repay an amount which a court may order to be paid is a relevant consideration in exercising the discretion of a Judge in determining whether or not to grant a stay of an order for a sum of money.  See Public Transport Corporation v Eames and Others, Industrial Relations Court of Australia, VI 6073 of 1995, Full Court, 22 December 1995, at 5-6 per North J, unreported.

Such evidence was also held to be relevant by Dawson J in the case of Federal Commissioner of Taxation v Myer Emporium Limited (1986) 160 CLR 220 at 222 to 223, and by myself in Wyndham Lodge Nursing Home v Reader (1995) 64 IR 94 at 95. See also Kerrin v Leighton Contractors Pty Ltd (No 2) (1986) 44 IR 246 at 248. As Mr Ironmonger conceded, the effect of paragraph 9 is that the employer supposes from its consideration of the circumstances of the applicant that the money which would flow to the applicant but for intervention of the court would be extremely difficult to recover.

Mr Dowling has indicated that the firm for whom he works has obtained instructions from the applicant that he is aware that in the event that the review goes against him, he is liable to repay any amount that he may receive but for Mr Ironmonger’s client succeeding on the stay application.  In the circumstances, I do not believe that the evidence contained in paragraph 9 of Mr Ironmonger's affidavit is sufficiently persuasive to influence the Court to the view that the respondent is genuinely at risk of not being able to recover the amount of compensation in the event that the respondent has to pay the moneys to the applicant pending the hearing and determination of the review.

As North J said in Besser at page 4:

“In my view the applicant employer on the motion for a stay has failed to demonstrate such circumstances as to justify the court intervening to grant a stay in respect of the entirety of the awards made.”

North J made that observation in the context of submissions put to him that there were grounds for a stay in respect of part of the awards in each case.  There have been no such submissions before me today designed to achieve a result whereby part of the award of compensation ordered by Judicial Registrar Ryan should be stayed.  In colloquial terms, the submission for a stay was an all or nothing submission.  As North J found that there was no demonstration of the circumstances required to justify stay in that case, I so find here on the material before the Court.  Consequently, I dismiss the application for a stay.

I certify that this and the preceding 10 pages are a true copy of the Reasons for Judgment herein of his Honour Justice Marshall.

Associate:  

Date:  1 July 1996        

Solicitor for the Applicant:  C Dowling
Solicitors for the Applicant:  Slater & Gordon

Advocate for the Respondent:  R Ironmonger from the Victorian Employers’ Chamber   of Commerce and Industry

Date of judgment:  1 July 1996