Industrial Court of New South Wales CITATION: State of New South Wales (Department of Education and Training and Department of Juvenile Justice) v Cahill [2009] NSWIRComm 122 State of New South Wales (Department of Education and Training and Department of Juvenile Justice) (Appellant) PARTIES: John Joseph Cahill (Respondent) FILE NUMBER(S): IRC 1072 of 2009 CORAM: Boland J President STAY OF PROCEEDINGS – Appeal – Application for leave to appeal and appeal – Principles governing stay applications – Issue of public interest – Issues of law and fact – Plausibly arguable case – Stay granted – Order for part payment of costs at first instance as a condition of the stay. CATCHWORDS: APPEAL – Stay of proceedings – Application for leave to appeal and appeal – Principles governing stay applications – Issue of public interest – Issues of law and fact – Plausibly arguable case – Stay granted – Order for part payment of costs at first instance as a condition of the stay. Industrial Relations Act 1996 LEGISLATION CITED: Criminal Appeal Act 1912 Occupational Health and Safety Act 2000 Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685 Cahill v State of New South Wales (Department of Education and Training and Department of Juvenile Justice) (No 2) [2008] NSWIRComm 246 CASES CITED: Cahill v State of New South Wales (Department of Education and Training and Department of Juvenile Justice) (No 3) [2009] NSWIRComm 97 New South Wales Bar Association v Stevens [2003] NSWCA 95; (2003) 52 ATR 602 Transport Industry - Waste Collection and Recycling (State) Award [2000] NSWIRComm 236; (2000) 102 IR 192 Zelbarry International Pty Ltd v Inspector Christensen [2004] NSWIRComm 183 HEARING DATES: 28 July 2009 DATE OF JUDGMENT: 30 July 2009 Mr J P Phillips SC & Ms W G Thompson of counsel (Appellant) Crown Solicitor LEGAL REPRESENTATIVES: Mr W G McNally (Respondent) W G McNally Jones Staff JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: BOLAND J, President Thursday, 30 July 2009 Matter No IRC 1072 of 2009 STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING AND DEPARTMENT OF JUVENILE JUSTICE) v JOHN JOSEPH CAHILL Application by State of New South Wales (Department of Education and Training and Department of Juvenile Justice) to appeal against judgments of Justice Schmidt given in Cahill v State of New South Wales (Department of Education and Training and Department of Juvenile Justice) (No 2) [2008] NSWIRComm 246 and Cahill v State of New South Wales (Department of Education and Training and Department of Juvenile Justice) (No 3) [2009] NSWIRComm 97 INTERLOCUTORY JUDGMENT [2009] NSWIRComm 122 1 The State of New South Wales, in its emanations as the Department of Education and Training and Department of Juvenile Justice, has made application pursuant to s 196 of the Industrial Relations Act 1996 and s 5AA(1)(a) of the Criminal Appeal Act 1912 to appeal against judgments given by Schmidt J in Cahill v State of New South Wales (Department of Education and Training and Department of Juvenile Justice) (No 2) [2008] NSWIRComm 246 (19 December 2008) and Cahill v State of New South Wales (Department of Education and Training and Department of Juvenile Justice) (No 3) [2009] NSWIRComm 97 (26 June 2009). 2 In Cahill (No 2) her Honour found the defendant in its two emanations guilty of three contraventions of s 8(1) of the Occupational Health and Safety Act 2000. The contraventions involved the failure in March 2004 to ensure employees were not exposed to risk of physical and/or psychological harm from the behaviour of detainees at Cobham Juvenile Justice Detention Centre ('Cobham') in which is located the Putland Education and Training Unit ('Putland'). 3 In Cahill (No 3), Schmidt J convicted the defendant of each offence and fined the defendant a total of $540,000 for the three offences. Her Honour ordered that, in each case, one half of the fine was to be paid as a moiety to the prosecutor, who was the secretary of an industrial organisation of employees, and that the defendant pay the prosecutor's costs. 4 In appealing her Honour's two judgments the appellant seeks a stay. This decision deals with the stay application. 5 The overriding principle in an application for a stay is to ask what the interests of justice require: New South Wales Bar Association v Stevens [2003] NSWCA 95; (2003) 52 ATR 602 at [83] per Spigelman CJ (Meagher JA and Sheller JA agreeing). 6 As Spigelman CJ observed in Stevens, the Court of Appeal in Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685, noted a number of relevant principles regarding stay applications pending an appeal. In Transport Industry - Waste Collection and Recycling (State) Award [2000] NSWIRComm 236; (2000) 102 IR 192 Wright J, President identified the following considerations derived from the discussion in Cambridge Credit as being relevant to apply in that matter: (1) The mere filing of an appeal will not of itself provide a reason or demonstrate an appropriate case nor will it discharge the onus which the applicant bears. (2) A court has an appropriate discretion whether or not to grant the stay and as to the terms that would be fair if a stay be granted. (3) The onus is upon the applicant for a stay to demonstrate a proper basis for a stay that will be fair to all the parties. (4) In the exercise of its discretion all considerations including the balance of convenience and the competing rights of the parties need to be considered and weighed. (5) Where there is a risk that the appeal will prove abortive or nugatory if the stay is not granted then the normal exercise of discretion will result in the grant of a stay. (6) Although, generally speaking, it is inappropriate in relation to an application for a stay to speculate as to the appellant's prospects of success, this does not prevent a court, in the context of considering the specific terms of the stay that will appropriately and fairly adjust the interests of the parties, from making a preliminary assessment as to whether the appellant has an arguable case. 7 In the application to appeal the appellant stated that: An appeal is sought because the matters raised by the appeal are of public interest and raise substantial issues of fact and law as to the construction and characterisation of an employer's duty of care to its employees who may be exposed to physical and psychological risk and the defences available to an employer. 8 In his oral submissions in support of the stay senior counsel for the appellant, Mr J P Phillips indicated that the appeal essentially concerned the alleged failure of her Honour to draw a distinction between physical injury and psychological injury. The appellant had contended at first instance that in order to understand the scope of the concept of 'reasonable foreseeability', arising in the context of a s 28(a) defence, that it was not reasonably practicable to comply with the obligation imposed by s 8(1) to ensure safety in a case of psychological injury and that the Court should have had regard to how the common law approaches psychological injury in the context of foreseeability. Schmidt J found in her judgment on liability that s 28(a) itself drew no distinction between risks of physical, as opposed to psychological injury. 9 Mr Phillips SC submitted that there was a significant issue to be determined in the appeal about which he had an arguable case and that in light of the heavy fine and costs, a stay should be granted: Zelbarry International Pty Ltd v Inspector Christensen [2004] NSWIRComm 183. 10 Mr W G McNally, solicitor for the respondent, submitted the appellant had not put forward any adequate reason for the granting of a stay. He indicated that the respondent was entitled to his verdict, which included a moiety of $270,000, and costs, which were of the order of $357,000. 11 As an alternative, Mr McNally proposed that if the stay were to be granted a condition should be imposed to the effect that interest be payable on the moiety and costs in the event that the appellant was unsuccessful in its appeal. I am not attracted to the alternative. 12 If it were not for the fact that the issue raised on the appeal is of some importance to the Court's occupational health and safety jurisprudence and which is at least 'plausibly arguable', I would not have countenanced granting a stay. However, I am prepared to grant a stay subject to the appellant paying to the respondent $300,000, which represents in large part the respondent's costs expended on the first instance proceedings. Depending on the outcome of the appeal, what becomes of that amount will be a matter for the Full Bench to decide, but in the meantime the respondent should have use of that money. Orders 13 The Court makes the following orders: (1) Subject to order (2), the judgment and orders of Schmidt J made in Matter Nos IRC 1390, 1391 and 1392 on 19 December 2008 and 26 June 2009 are stayed pending the outcome of the appeal in this matter. (2) The appellant shall pay to the respondent an amount of $300,000 within 28 days. ___________________________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.