Williams, Margaret Angela v Quick Chips Pty Ltd

[1997] FCA 948

FEDERAL COURT OF AUSTRALIA

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VI 2227  of   1996

BETWEEN:	MARGARET ANGELA WILLIAMS Applicant
AND:	QUICK CHIPS PTY LTD Respondent
JUDGE:		MARSHALL J
DATE OF ORDER:		1 SEPTEMBER 1997
WHERE MADE:		MELBOURNE

THE COURT ORDERS THAT:

1. The respondent’s notice of motion of 20 August 1997 be dismissed.

1. The respondent pay the applicant’s costs of the notice of motion pursuant to

   s 170EHA of the Workplace Relations Act 1996, fixed at $400, on or before 1 October 1997.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VI 2227 of 1996

BETWEEN:	MARGARET ANGELA WILLIAMS Applicant
AND:	QUICK CHIPS PTY LTD Respondent

JUDGE:	MARSHALL J
DATE:	1 SEPTEMBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

HIS HONOUR:  This is an application by the respondent to stay an order made by a Judicial Registrar in a matter in which the applicant successfully alleged that the respondent had unlawfully terminated her employment.  (See Williams v Quick Chips Pty Ltd, Federal Court of Australia, Ryan JR, 10 July 1997, unreported.)  The Judicial Registrar made an order in the matter, inter alia, for compensation to be payable to the applicant.

The stay is sought today primarily on the basis of the alleged financial position of the respondent.  No detailed evidence was put on that issue other than the question of what appears to be the most recent debt position of the respondent, without any evidence at all as to its assets.  There was no allegation by the respondent that the applicant would be unable to repay any amount which might be ordered to be repaid as a result of the review.  In fact there was no evidence as to her financial position at all.  The stay was not sought at the first directions hearing.  Rather, the matter was allowed to be leisurely programmed without any submissions concerning the alleged precarious financial position of the respondent.  A further factor militating against a stay is that the respondent's case on the merits, that is as to whether a breach of the material provisions of the Workplace Relations Act 1996 (“the Act”) had occurred, appears to be extremely weak. It is conceded that no consultation with the applicant occurred before her redundancy. On the present state of the authorities it would appear that the only serious question on the review in issue would be the question of the compensation which was ordered. That is, whether the appropriate amount was ordered.

Therefore I find that the respondent has not established an appropriate case for a stay, and I dismiss the application for the stay.  The order of the Court is that the respondent's notice of motion of 20 August 1997 be dismissed. 

I am prepared to grant costs under s 170EHA of the Act. The stay application was made in circumstances where material supporting it effectively conceded a breach of the relevant legislation. This was an extremely weak case, if not the weakest case I have ever seen for a stay. I find that the making of the application for a stay was an unreasonable act. The applicant should not be out of the pocket as a result of that unreasonable act. I will go to the question of setting an amount.

I order the respondent pay the applicant's costs of the notice of motion pursuant to s 170EHA of the Act. The dismissal of the notice of motion means that the moneys payable pursuant to the order of the Judicial Registrar remain immediately payable.

I will order that the costs of $400 be paid on or before 1 October 1997, but it should be noted on the court file that the amount owing pursuant to the order of Ryan JR is payable immediately and should be paid today, otherwise the applicant be at liberty to approach the Court on short notice on the question of contempt.

I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall delivered ex tempore.

Associate:

Dated:            1 September 1997

Counsel for the Applicant:	S Stuckey
Solicitors for the Applicant:	Julie Andritsos
Solicitor for the Respondent:	L P Thalakada
Date of Hearing:	1 September 1997
Date of Judgment:	1 September 1997