State of Queensland & Ralph v Bell

CITATION:

State of Queensland & Ralph v Bell [2015] QCATA 172

PARTIES:	State of Queensland Lindy Ralph (Applicant/Appellant)
V Karen Bell
(Respondent)

APPLICATION NUMBER:

APL398 -15

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

30 November 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application for a stay of the decision of the tribunal dated 16 September 2015 is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – ANTI-DISCRIMINATION – COSTS – APPLICATION FOR STAY – where costs ordered in anti-discrimination proceeding – where costs appealed – where costs ordered a second time – where second appeal – where application to stay order - whether grounds to stay proceedings

Berry v Green [1999] QCA 213
Croney v Nand [1999] 2 Qd R 342
Kostopoulos v G E Commercial Finance Australia Pty Ltd [2005] QCA 311
Chief Executive Officer, Department for Child Protection v S (2007) 98 ALD 329
Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

Karen Bell was successful in establishing that she had suffered sexual harassment in the workplace. The tribunal ordered the State of Queensland pay her compensation and, later, costs of the proceeding, which were assessed at $113,131.02. The State of Queensland successfully appealed that decision and the issue of costs was returned to the tribunal. The tribunal again ordered costs, on the same scale as previously ordered. This time, however, the State of Queensland was to pay 2/3 of Ms Bell’s assessed costs.
The State of Queensland has, again, appealed that decision. It has also applied for a stay of the decision.
The question of whether a stay of the original decision should be granted is usually addressed according to established principles: Is it an appropriate case to grant a stay?[1] Does the applicant have an arguable case on appeal?[2] Would a refusal of a stay render the appeal nugatory?[3] Does the balance of convenience favour granting the stay?[4]
[1]Croney v Nand [1999] 2 Qd R 342 at 348.
[2]Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453 at 455.
[3] Chief Executive Officer, Department for Child Protection v S (2007) 98 ALD 329 at 331.
[4] Kostopoulos v G E Commercial Finance Australia Pty Ltd [2005] QCA 311.
I accept that there is an arguable case on appeal.
I do not accept that, if the stay is not granted, there will be no point to the appeal. State of Queensland submits that the tribunal’s second orders require an assessment of costs if the parties cannot agree. It submits that a further costs assessment is unnecessary, because there has already been an assessment under the first order.
That submission may be relevant to the question of where the balance of convenience lies but it cannot support an argument that, without a stay, the appeal will be of no utility.
In its grounds for appeal, the State of Queensland takes issue with both the order for costs in its entirety and the Scale on which the order is based. Both of those issues will be live, even if I do not order a stay.
Further, given that there has already been an assessment of the costs on the District Court Scale, I do not see why a further assessment is necessary. The solicitors for Ms Bell have already sent a demand for payment which is 2/3 of the original assessment. It is an obvious solution to agree the quantum and then simply argue the principle.
The balance of convenience does not favour a stay. The fundamental principle governing applications for a stay is that the successful party is prima facie entitled to the fruits of its judgment, and the question is whether or not there is some particular feature of the case which warrants departure from that position[5]. The State of Queensland has not argued that it is not able to pay Ms Bell. It has not argued that Ms Bell will not be able to refund the payment, if an appeal is unsuccessful.
[5]Berry v Green [1999] QCA 213 per de Jersey CJ at 2.
The application for a stay of the tribunal decision dated 16 September 2015 is refused.

The appeal in this matter involved the State of Queensland and Ralph, who were challenging a decision made by Bell. The dispute centred around anti-discrimination proceedings, specifically the awarding of costs. Initially, the tribunal had ordered costs in favour of the appellants. This decision was appealed, leading to a second order of costs being made against the respondent. A further appeal against this second order was lodged, and subsequently, an application to stay the enforcement of the costs order was made.

The legal issues before the court were primarily concerned with the circumstances under which a stay of the tribunal's decision could be granted. The court was required to assess whether the respondent had established grounds to justify staying the enforcement of the costs order. The primary consideration was whether the respondent had a serious question to be tried on the appeal and whether the balance of convenience favoured the granting of a stay.

The court deliberated on the merits of the appeal and the application for a stay. It found that the respondent had not demonstrated a serious question to be tried on the appeal nor had they shown that the balance of convenience favoured the granting of a stay. The court emphasised the importance of finality in litigation processes and the need to avoid protracted disputes over costs. Consequently, the application for a stay was refused, and the decision of the tribunal remained enforceable.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established