Wyndham Lodge Nursing Home v Reader

[1995] IRCA 555

CATCHWORDS

INDUSTRIAL LAW - PRACTICE AND PROCEDURE - APPEAL - Application to stay a judgment pending determination of appeal - Principles to be applied - Discretion in court - Special or exceptional circumstances - Stay refused

Industrial Relations Act 1988 ss 170DC, 170DE, 170EA
Conciliation and Arbitration Act 1904, s5(5)

Kerrin v Leighton Contractors Pty Ltd (No 2) (1986) 44 IR 246, 249

Meneling Station Pty Ltd v Australasian Meat Industry Employees Union (1987) 20 IR 296, 296-297,

Jason Scott Johns v Gunns Limited, TI 148R of 1994, Industrial Relations Court of Australia, 18 May 1995 (as yet unreported), 29-30, Northrop J

The Commissioner of Taxation of the Commonwealth of Australia v The Myer Emporium Limited (1986) 160 CLR 220, 222, 223, 224

Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Limited (1991) 13 ATPR 41-138

No VI 5014 of 1995

WYNDHAM LODGE NURSING HOME INC v CECILE READER

Marshall J
Melbourne
4 October 1995

IN THE INDUSTRIAL RELATIONS        )
  )
COURT OF AUSTRALIA  )
  )

VICTORIA DISTRICT REGISTRY  )  No. VI 5014 of 1995

BETWEEN  WYNDHAM LODGE NURSING
  HOME INC

Appellant

AND  CECILE READER

Respondent

JUDGE:         Marshall J
PLACE:         Melbourne
DATE:  4 October 1995

ORDER

THE COURT ORDERS THAT:

1.The appellant’s motion, notice of which was given on 28 September 1995, is dismissed.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS        )
  )
COURT OF AUSTRALIA  )
  )

VICTORIA DISTRICT REGISTRY  )  No. VI 5014 of 1995

BETWEEN  WYNDHAM LODGE NURSING
  HOME INC

Appellant

AND  CECILE READER

Respondent

JUDGE:         Marshall J
PLACE:         Melbourne
DATE:  4 October 1995

EX TEMPORE REASONS FOR JUDGMENT
 AS REVISED FROM THE TRANSCRIPT

On 29 and 30 August 1995 the Court heard a notice of motion by the respondent for a review by the Court of an order made by Judicial Registrar Tomlinson dismissing the respondent’s application under s170EA Industrial Relations Act 1988 (“the Act”) arising from the termination of her employment by the appellant.

On 8 September 1995 judgment was delivered in the review and the Court made the following orders:

“1.The Order of the Court constituted by Judicial Registrar Tomlinson made on 13 January 1995 is set aside.

2.It is declared that the termination of employment of the applicant contravened ss 170DC and DE of the Act.

3.The respondent shall appoint Cecile Reader to the position in which she was employed immediately before the termination.

4.The employment of Cecile Reader is deemed to have been continued for all purposes from 13 June 1994 to the date the final order is made in this matter.

5.The matter is adjourned to the directions hearing list on 2 October 1995 to enable the parties to calculate, in accordance with the reasons for judgment, the amount of remuneration lost by the applicant because of the termination of her employment and, specifically, the relevant net sum having regard to the deduction of PAYE taxation at the appropriate rate.

NOTE: If agreement is reached, a consent order can be made pursuant to Order 35 rule 10.”

At the conclusion of the announcement by the Court of its orders on 8 September 1995, the Court asked the representatives of the parties, Mr Abraham, (solicitor for the Wyndham Lodge Nursing Home Inc.) and Mr Fehring (counsel for Ms Reader) whether the parties wished to make any submission to the Court.  Neither Mr Abraham nor Mr Fehring did so.  In particular, Mr Abraham did not request that the Court stay the operation of its orders for any period of time so that the possibility of an appeal may be contemplated.

It was incumbent on the appellant to immediately comply with orders 3 and 4 made on 8 September 1995 in the absence of a stay.  By not doing so it has exposed itself to the possibility of contempt proceedings being issued against it.  Instead of reinstating the respondent in accordance with the orders of the Court the appellant seems to have ignored orders 3 and 4.

On 28 September 1995 the appellant filed in the Registry a notice of appeal from the judgment of 8 September 1995.

On 28 September 1995 the appellant also filed in the registry a notice of motion seeking an order that the orders of 8 September 1995 be stayed pending the hearing and determination of the appeal.  The notice of motion was made returnable at 9.30 a.m. today.  Mr Fehring of counsel appeared for the respondent and Mr Muir, solicitor, appeared for the appellant.  The directions hearing referred to in Order 5 of the orders of 8 September 1995 was also adjourned until today.

The notice of motion was supported by affidavits of Ms Cirkovic and Ms Canterbury.  Those affidavits made three points of material relevance as to whether a stay ought to be granted.  They were:-

1.the fear that the appellant would have to terminate the employment of one other of its employees in order to reinstate the respondent; and

2.the respondent was in other employment and would suffer no disadvantage in the absence of a stay; and

3.the appellant felt that it would be unable to recover any money which was paid to the respondent.

It is well established that a party which applies to stay orders of a Court pending the hearing and determination of an appeal is required to show special or exceptional circumstances to justify the making of such orders.  It is also required to justify “departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal.”:  The Commissioner of Taxation of the Commonwealth of Australia v The Myer Emporium Limited (“Myer”) (1986) 160 CLR 220, 222 (per Dawson J). See also Kerrin v Leighton Contractors Pty Ltd (No 2) (1986) 44 IR 246 (“Kerrin”) and Meneling Station Pty Ltd v Australasian Meat Industry Employees Union (1987) 20 IR 296 (“Meneling”).

In Meneling, Bowen CJ said on the question of a stay at 296-297 that:-

“It is a matter of discretion for this Court.  It is necessary for anyone who applies for a stay to demonstrate that it is a case for a stay.  This is sometimes put on the basis of showing special or exceptional circumstances, or, as was put in Alexander v Cambridge Credit Companies (1985) 2 NSWLR 685, that it is ‘an appropriate case’, without laying down what are the limits of appropriate cases.”

In Kerrin, Gray J at 248 said that if it can be shown that there is a likelihood of moneys not being repaid by an unsuccessful respondent to an appeal a special circumstance will be shown. In the present proceedings the appellant gave evidence of a mere fear that any moneys paid under the order will not be re-paid. The respondent replied by saying that that fear is unwarranted. In the circumstances, I am not satisfied that it has been shown that there is a real likelihood that the respondent will not repay to the appellant any moneys which she receives from it and has to re-pay in the event that the appeal succeeds. In Myer at 223-224 Dawson J accepted the submission that certain interest payments would not be recoverable by the Tax Office from a taxpayer at law. The decision did not deal with the particular financial circumstances of the taxpayer concerned. See also Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Limited (1991) 13 ATPR 41-138, where a stay of a costs order was granted in circumstances where the respondent to the appeal was impecunious.

On the issue regarding the termination of another employee, I am fortified by the decision of Northrop J in Jason Scott Johns v Gunns Limited, TI 148R of 1994, Industrial Relations Court of Australia, 18 May 1995 (as yet unreported) in coming to the view that such a consideration is not a special circumstance warranting the grant of a stay.  At 29-30, Northrop J said:-

“The fact that the position held by Mr Johns has been filled by another person gives rise to greater concern. This is so particularly where so few people are employed in the beam plant area. There is no evidence to suggest that the new employee cannot be directed to perform different duties or otherwise be absorbed into the workforce. More importantly the mere fact that a position vacated as a result of the termination of an employee has been filled by the engagement of a new employee cannot make the reinstatement impracticable. A contrary conclusion would make the primary remedy ineffective. An employer could refill the position immediately thereby depriving the terminated employee of the remedy of reinstatement. There is no doubt that in cases of this kind an employer faces a difficulty, particularly where a small number of persons are employed. A solution may be for the employer to arrange for a replacement to be employed under a contract in conforming with section 170CC of the Act and Regulation 30BC. Otherwise, the employer may face an application under section 170EA by the employee who is to be terminated to permit the first employee to be reinstated.

Whilst that matter dealt with the question of impracticability of reinstatement the general approach of Northrop J is equally applicable to the question of the exercise of the Court’s discretion in relation to a stay.  I am not satisfied that the respondent would suffer no disadvantage if she was not reinstated.  Mr Muir ultimately did not dispute that the respondent’s current earnings are derived from intermittent agency work and are lower than were her earnings from the appellant.  The respondent, as Mr Fehring submitted, has no way of recovering costs if she succeeds in the appeal.

As Gray J said in Kerrin at 249:-

“In the result where each party might be in some fashion be deprived of the fruits of an actual or potential victory, depending upon the outcome of the appeal, it seems to me to be appropriate that the ordinary rule should operate and that the appeal should not be the occasion for a stay of the order of the Court.  The effect of this will be that Mr Kerrin will be entitled to be reinstated immediately to the same or a similar position.  If some industrial disruption does occur as a result of that, then perhaps it might truly be said that such industrial disruption is a consequence of what the Court can only, at present, regard as the defendant’s criminal act in dismissing Mr Kerrin at the time when it did.”

Kerrin involved a reinstatement order under s5(5) Conciliation and Arbitration Act 1904. Gray J was there faced with a submission that reinstatement should be stayed pending an appeal. In many respects it is a closely analogous situation to the instant case. I agree, with respect, with the approach of His Honour in Kerrin.

In the circumstances of this case it means that Ms Reader remains, as she was on 8 September 1995, entitled to be reinstated to her former position.  If some disruption arises to the appellant in terms of its staffing arrangements it might merely be said that such disruption is a consequence of what the Court can only, at present, regard as the appellant’s unlawful termination of the employment of Ms Reader.

For the above reasons I dismiss the application for a stay of the judgment of 8 September 1995.  I remind the appellant that in the event that orders made on that day are not complied with (especially orders 3 and 4) it risks being subject to contempt of court proceedings.

The order of the Court is that the appellant’s motion, notice of which was given on 28 September 1995, is dismissed.

I certify that this and the preceding 6 pages are a true copy of the Reasons for Judgment herein of His Honour Justice Marshall.

Associate:

Date:  4 October 1995

Counsel for the Applicant:                 Mr I Fehring

Solicitor for the Applicant:                Wilson Potter Nicholson

Counsel for the Respondent:             Mr C Muir (Solicitor)

Solicitor for the Respondent:             Tanya Cirkovic & Associates

Date of hearing:  4 October 1995

Date of judgment:  4 October 1995