McDonald v Tinbilly Travellers Pty Ltd
[2008] QCA 81
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- Unreported Judgment
- McDonald v Tinbilly Travellers Pty Ltd[2008] QCA 81
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McDonald v Tinbilly Travellers Pty Ltd[2008] QCA 81
McDonald v Tinbilly Travellers Pty Ltd[2008] QCA 81
SUPREME COURT OF QUEENSLAND
CITATION: | McDonald v Tinbilly Travellers P/L [2008] QCA 81 |
PARTIES: | PETER JOHN MCDONALD (defendant/respondent/respondent) |
FILE NO/S: | Appeal No 10028 of 2007 C2006/80 (QIRC) |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Stay of Execution |
ORIGINATING COURT: | Queensland Industrial Relations Court |
DELIVERED EX TEMPORE ON: |
7 April 2008 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 7 April 2008 |
JUDGES: | Keane JA Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – where the applicant sought a stay of execution pending the outcome of an application for special leave to appeal to the High Court – whether the balance of convenience favours the granting of the stay Rapid Roofing Pty Ltd & Ors v Natalise Pty Ltd & Ors [2007] QCA 179, applied |
COUNSEL: | The applicant appeared on his own behalf G C O'Driscoll for the respondent |
SOLICITORS: | The applicant appeared on his own behalf BCI Duells Lawyers for the respondent |
KEANE JA: The applicant, Mr McDonald, seeks a stay of orders made by the Court of Appeal on 15 February 2008. The stay is sought pending the determination of his application for special leave to the High Court of Australia.
The orders which the Court of Appeal made on the 15 February 2008 involved:
(a)the striking out of Mr McDonald's appeal from the Full Bench of the Industrial Relations Commission, whereby the appellant was refused leave to pursue before the Full Bench an appeal against the dismissal of Mr McDonald's claim against the respondent, Tinbilly Travellers Pty Ltd, for unpaid wages;
(b) the striking out of an application to the Court of Appeal for an order directed to the Industrial Relations Commission that it rehear Mr McDonald's application for relief relating to the termination of his employment with Tinbilly; and
(c) an order that Mr McDonald pay Tinbilly's costs of his appeal and application.
The appeal and application were disposed of in a summary way on the footing that neither the appeal nor the application raised any arguable point; see McDonald v Tinbilly Travellers Pty Ltd [2008] QCA 17 at [57] - [60].
In his written outline in support of this application, Mr McDonald submits that:
"given that the matter is now the subject of an application for special leave to appeal to the High Court of Australia, it is respectfully submitted that the orders of the Court of Appeal on 15 February 2008 be stayed, pending the outcome of that High Court application."
To the extent that Mr McDonald's submission seems to assume that the filing of an application for special leave to appeal operates to confer an entitlement to a stay of the orders of the Court of Appeal, that assumption is erroneous in point of law. An applicant for a stay in these circumstances must show some sufficient reason, beyond the mere fact that he or she has a pending application for special leave to appeal, why the Court of Appeal's orders should be stayed. As Jerrard JA said in Rapid Roofing Pty Ltd and Ors v Natalise Pty Ltd and Ors [2007] QCA 179 at paragraph 4:
"The critical issue is the balance of convenience."
Mr McDonald has not demonstrated that there is some good reason in terms of a balance of convenience to grant a stay; and I am unable to discern any such reason.
An appeal to the High Court lies only upon the grant of special leave to appeal by that Court. There is no appeal until special leave is granted. The grant of special leave to appeal is a matter for the discretion of the High Court.
To the extent that it is relevant in considering the balance of convenience to consider the strength of Mr McDonald's prospects of obtaining a grant of special leave, the unrelieved failure of Mr McDonald's arguments thus far tends to suggest that Mr McDonald does not have good prospects of success.
But even if special leave were to be granted, it is difficult to see what harm would be suffered by Mr McDonald - speaking objectively - if his present application for a stay were to be refused. In this regard, for example, it is not suggested that the grant of a stay is necessary to preserve the subject matter of a litigation and to ensure the efficacious exercise of the High Court's jurisdiction. This is not a case where the refusal of the application for a stay will establish some new state of rights and duties which could not conveniently be unscrambled if Mr McDonald's position were to be vindicated by the High Court.
If Mr McDonald were ultimately to succeed against Tinbilly, he would be able to enforce such rights as the High Court judgment might recognise in respect of his unpaid wages and his dismissal from employment. It is clear, I think, that a stay is not necessary to preserve that position.
To the extent that Tinbilly may seek to pursue its order for costs, any costs which it might recover from Mr McDonald could be ordered to be returned to him if his position should ultimately be vindicated by the High Court.
Mr McDonald has not put any evidence before the Court to suggest that his financial position is such that he would suffer some form of irreparable harm if he were required to pay Tinbilly's costs before that hypothetical vindication. But even if it were to be assumed in Mr McDonald's favour that the payment of the costs would be hardship for him, any order which assisted him to pass the burden of such costs onto the respondent, which has been uniformly successful at each stage of these proceedings, would seem to me to be unjust.
I therefore conclude that no good reason has been shown for staying the orders of the Court of Appeal made on 15 February 2008. I therefore order that Mr McDonald's application for a stay should be dismissed.
KEANE JA: Having regard to the outcome of the application by Mr McDonald, I can see no reason why the ordinary order in such a case - that is to say, that the costs should follow the event - should not be made. I also order that Mr McDonald pay Tinbilly's costs of this application to be assessed on the standard basis.