FEDERAL COURT OF AUSTRALIA Group Training South West Incorporated v Trigg [2017] FCA 400 Appeal from: Glenn Edward Trigg v Group Training South West Inc and Stan Liaros [2017] WAIRC 17 File number: WAD 129 of 2017 Judge: GILMOUR J Date of judgment: 5 May 2017 Catchwords: PRACTICE AND PROCEDURE – stay of execution of judgment – whether money orders under the judgment subject to the appeal should be stayed – Federal Court Rules 2011 (Cth) r 36.08 – consideration of the principles concerning the court's discretion to stay a judgment Legislation: Federal Court Rules 2011 (Cth) r 36.08 Cases cited: Commonwealth Bank of Australia v Barker [2012] FCA 1076 applied Federal Commissioner of Taxation v Myer Emporium Limited [1986] 160 CLR 220 cited Henderson v Amadio Pty Ltd (No 3) (1996) 65 FCR 66 cited Kazal v Thunder Studios Inc (California) [2017] FCA 238 followed Date of hearing: 22 March 2017 Registry: Western Australia Division: General Division National Practice Area: Employment & Industrial Relations Number of paragraphs: 10 Counsel for the Appellant: Mr J Raftos Solicitor for the Appellant: Port Legal Counsel for the Respondents: The Respondents appeared in person ORDERS WAD 129 of 2017 BETWEEN: GROUP TRAINING SOUTH WEST INCORPORATED Appellant AND: GLENN EDWARD TRIGG First Respondent ADRIAN TROY BESWICK Second Respondent GREGORY PAUL TOMLINSON Third Respondent JUDGE: GILMOUR J DATE OF ORDER: 5 May 2017 THE COURT ORDERS THAT: 1. The interlocutory application by the appellant for a stay of judgment of Industrial Court of Western Australia consolidated proceedings M184, M185 and M186 of 2016 be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT GILMOUR J: 1 These are my slightly edited reasons, in this matter, delivered ex tempore on 22 March 2017. 2 Group Training South West Incorporated has lodged an appeal from a decision given by an industrial magistrate in the Industrial Magistrates Court of Western Australia in consolidated proceedings M184, M185 and M186 of 2015. The decision appealed from was delivered on 23 February 2017 and, by it, the present appellant was ordered to pay the three present respondents, variously, sums totalling $95,000 approximately in respect of unpaid redundancy entitlements, civil penalties and interest on the judgment sums. The notice of appeal lodged by the appellant raises 11 separate grounds. 3 Separate to, but in anticipation of, the hearing of its appeal, the appellant made an interlocutory application under r 36.08 of the Federal Court Rules 2011 (Cth) for orders staying execution of the judgment subject to the appeal. 4 The appellant, in support of its application for a stay of the judgment below cited in support the decision of Katzmann J in Kazal v Thunder Studios Inc (California) [2017] FCA 238. There, her Honour, in the broad, set out the well-recognised principles concerning the discretion which this court has to order a stay of judgment. Her Honour referred to some of the leading authorities at [53], then at [54]–[58], her Honour outlined the relevant principles as follows: 54. The starting point is that the judgment is presumed to be correct and the successful party is entitled to its benefits - to what are sometimes referred to as "the fruits of victory". An applicant must demonstrate a proper or appropriate basis for a stay that will be fair to all parties. It is not enough that a notice of appeal has been filed. Where the applicant "has left the situation in the state of speculation or of mere argument, weight must be given to the fact that the judgment below has been in favour of the other party": Re Middle Harbour Investments Ltd (in liq) NSWCA, 15 December 1976, unreported, per Mahoney JA. 54. Second, in the exercise of its discretion the Court will weigh the competing rights of the parties and the balance of convenience. 56. Third, the Court will not generally speculate on the prospects of the appellant's success on the appeal, but, in determining the parties' rights and where the balance of convenience lies, it will make a preliminary assessment as to whether the appellant has an arguable case. 57. Fourth, where there is a risk that the appeal will be rendered nugatory unless a stay is granted, courts will normally exercise their discretion in favour of granting a stay. 58. Fifth, it is not necessary for special or exceptional circumstances to be shown. 5 In this case, counsel for the appellant, putting it generally, argued that the present respondent would suffer no prejudice were a stay to be granted because interest would continue to accrue on the judgment sums and the appellant is in strong financial circumstances. This latter argument was simply a matter of assertion. I received no evidence as to the appellant's financial circumstances. Counsel for the appellant then argued that the notice of appeal demonstrates by its grounds that the appellant has strong prospects of success. Lastly, he hinted, without any evidentiary basis, as a ground, that the failure to order a stay would render the appeal nugatory. 6 As to the question of whether the appeal might be rendered nugatory, Besanko J in Commonwealth Bank of Australia v Barker [2012] FCA 1076, in considering what was meant by such a factor ̶ that is to say, that an appeal would be rendered nugatory if a stay is not granted ̶ set out with approval at [17], the following passage in Federal Commissioner of Taxation v Myer Emporium Limited [1986] 160 CLR 220 per Dawson J at 222-223. Generally, [an appeal being rendered nugatory] will occur when, because of the respondents financial state, there is no reasonable prospect of recovering moneys paid pursuant to the judgment at first instance. 7 Besanko J also referred to the decision of Heerey J iHenderson v Amadio Pty Ltd (No 3) (1996) 65 FCR 66 where Heerey J, at 69, expressed the test in terms of whether the applicant for a stay had established that there would be no reasonable probability of getting back moneys paid under the judgment if the appeal succeeds: Barker at [18]. 8 There is no evidence whatsoever put on by the appellant who, of course, carries the burden of establishing grounds upon which this court might grant a stay, to support any submission that the appeal would be rendered nugatory for the reason which I have just mentioned. 9 As to the merits, it is not obvious to me from the grounds in the notice of appeal or the oral submissions put on behalf of the appellant that the grounds are strong or, indeed, weak. I accordingly regard this factor as neutral. That said, it is at least curious that, at the trial, counsel for the present appellant, in closing submissions, did not put liability in issue concerning the non-payment of redundancy payments. Rather, issue was taken with the application for civil penalties and as to the rate of interest which ought to apply in relation to the money judgment sums awarded. 10 I do not regard this as a suitable case for the stay sought. The respondents should have the fruits of the judgment in their favour. That interest would still run on the judgment sums, were a stay to be granted, does not detract from this conclusion. For these reasons, the application will be dismissed. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 5 May 2017