Saltmarsh v Nicols

[1997] IRCA 64

DECISION NO:64/97

CATCHWORDS

INDUSTRIAL LAW - application for a stay of compensation order of Judicial Registrar - allegation of inability to repay - no evidence of capacity to repay

Workplace Relations Act 1996 ss 170, 377

Gregory Alan Norman v Besser Industries (NT) Pty Ltd (IRCA, Full Court, 1 August 1996, unreported, per Moore, Marshall and Madgwick JJ)

Public Transport Corporation v Boulton (IRCA, Full Court, 22 December 1995, unreported, per Gray, Marshall and North JJ)

KYLIE JANE SALTMARSH v A.T. NICHOLS, trading as TASMANIAN CARPET CLEANING
No. TI 96/1040R

Before:           MARSHALL J
Place:            MELBOURNE
Date of hearing:   7 MARCH 1997
Date of judgment:  7 MARCH 1997

IN THE INDUSTRIAL RELATIONS  )
COURT OF AUSTRALIA          )
TASMANIA DISTRICT REGISTRY   )

No. TI 96/1040R

BETWEEN:          KYLIE JANE SALTMARSH
Applicant

AND:       A.T. NICHOLS, trading as
TASMANIAN CARPET CLEANING

CORAM:     Marshall J
PLACE:     Melbourne
DATE:     7 MARCH 1997

ORDER

THE COURT ORDERS THAT:

1.The respondent’s notice of motion save for the right to a review be dismissed.

2.On or before 4.00 pm on 14 March 1997 the respondent shall pay the applicant the sum of $1500.

3.The directions hearing in the review be adjourned to 10.15 am on 2 April 1997 in Hobart.

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

IN THE INDUSTRIAL RELATIONS  )
COURT OF AUSTRALIA          )
TASMANIA DISTRICT REGISTRY   )

No. TI 96/1040R

BETWEEN:          KYLIE JANE SALTMARSH
Applicant

AND:       A.T. NICHOLS, trading as
TASMANIAN CARPET CLEANING

CORAM:     Marshall J
PLACE:     Melbourne
DATE:     7 MARCH 1997

EX-TEMPORE REASONS FOR JUDGMENT

The matter before the Court this afternoon is a notice of motion filed by the respondent (“Tasmanian Carpet Cleaning”) which seeks a review of the exercise of power by a Judicial Registrar and a stay of the order of the Judicial Registrar pending the hearing and determination of the review.

The right to a review is automatic. See s377 Workplace Relations Act 1996 (“the Act”). However, an applicant for a stay of a Judicial Registrar’s order must demonstrate that the matter is an appropriate one for the Court to grant a stay of the order. See Gregory Alan Norman v Besser Industries (NT) Pty Ltd (IRCA, Full Court, 1 August 1996, unreported, per Moore, Marshall and Madgwick JJ).

In this matter the Judicial Registrar ordered that Tasmanian Carpet Cleaning pay Ms Saltmarsh the sum of $1500 compensation as a result of the termination of her employment in contravention of s170DC of the Act. The affidavit filed in support of the notice of motion essentially put in issue the ability of Ms Saltmarsh to repay the $1500 sum in the event that she was not successful in the review. That question was put in issue by way of a mere assertion that re-payment would not be made given that Ms Saltmarsh was pregnant with a due date of confinement of 22 January 1997 and that she would remain at home to care for her child whilst only receiving income from social security sources.

A mere assertion of an inability of a successful applicant to re-pay monies ordered to be paid by a Judicial Registrar in the event that a respondent succeeds on a review will rarely found an appropriate case for a stay of the payment of the compensation ordered.  There is no evidence before the Court of the financial circumstances of Ms Saltmarsh.  To assert that Ms Saltmarsh would not re-pay any sum which the Court may ultimately order her to pay is to assume that she would act disreputably.  I have no reason to assume that she would act disreputably.  See Public Transport Corporation v Boulton (IRCA, Full Court, 22 December 1995, unreported, per Gray, Marshall and North JJ).

Ms Saltmarsh is now under notice that as a result of the review she may be required to re-pay to her former employer some or all of the amount which the Court will shortly order that she be paid.  I have no reason to doubt that her legal advisers will also impress upon her that re-payment of some or all of the compensation she will soon receive may arise out of the review process.

In the circumstances I find that the respondent has not demonstrated an appropriate case to justify the Court intervening to grant a stay of the compensation order of the Judicial Registrar.  It is appropriate to order that the sum of $1500 be paid to Ms Saltmarsh on or before 4.00 pm on Friday, 14 March 1997.

I certify that this and the preceding three (3) pages
are a true copy of the Reasons for Judgment
of his Honour Justice Marshall.

Associate:  
Dated:  

APPEARANCES

Counsel for the Applicant:       Ms L Mackie
Solicitor for the Applicant:      Jennings Elliot

Representative for the Respondent:  Mr S Gates

Date of hearing:               7 March 1997
Date of judgment:               7 March 1997