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[Extract from Queensland Government Industrial Gazette,

dated 17 November, 2006, Vol. 183, No. 16, pages 855-856]

INDUSTRIAL COURT OF QUEENSLAND

Industrial Relations Act 1999 - s. 347 - application for stay

Park Avenue Motor-Hotel Pty Ltd, Godwin's Hotels Pty Ltd, Godwin's Holding Company Pty Ltd and George Darby Godwin AND Juergen Willi Beck (C/2006/67)

PRESIDENT HALL / 9 November 2006

DECISION

For a period of time which is now in excess of one year, Mr Juergen Willi Beck has been engaged in litigation with each of Park Avenue Motor-Hotel Pty Ltd, Godwin's Hotels Pty Ltd, Godwin's Holding Company Pty Ltd and Mr George Darby Godwin. The proceedings are taking place in the Industrial Magistrates Court at Rockhampton. They relate to wages said to be due to Mr Beck from one or more of the four Respondents in the Industrial Magistrates Court.

The noun "wages" I should add, is here used to embrace holiday pay, superannuation payments and termination payments as well as traditional wages for services. The claims are founded upon the Hotels, Resorts and Certain Other Licensed Premises Award - State (Excluding South-East Queensland) and the Hotels, Resorts and Certain Other Licensed Premises Award - State (Excluding South-East Queensland) 2003. In the alternative, Mr Beck has pleaded his claim in contract.

Because the Awards make provision for penalty rates e.g. for overtime, and the contract does not provide for payment at penalty rates, success in the contract claim will inevitably yield a lesser sum of money than success on the claims under the Awards.

Prior to the commencement of the first day of hearing there had been discussions between Counsel for the parties about a proposal by the Respondents that prior to the taking of evidence the Respondents would seek summary dismissal of the claims based upon the Awards. Nothing came of that proposal. However, on completion of the second day of hearing, Counsel for the Respondents did seek leave to make application that claims based upon the Awards should be summarily dismissed. That application was granted. Written submissions were taken. The Respondents' submissions were rejected. The Respondents at first instance have appealed against that decision.

In circumstances in which the proceedings in the Industrial Magistrates Court are to resume on 20 and 21 November 2006, the Respondents seek a stay to protect their right of appeal. In terms, the relief sought is:

"(a) The Application for a stay of decision under appeal be granted.

(b)  That proceedings in the matter number MAG-00154499/05(9) be stayed until the resolution of the appeal.".

It is the contention of Counsel for Mr Beck, ultimately (I think) conceded by Counsel for the Applicants that having regard to the definition of "decision" at schedule 5 of the Industrial Relations Act 1999, the power to stay a decision at s. 347 is not a power to stay proceedings.

Doubtless, there will be many instances in which the effect of a stay of a decision upon an interlocutory point will be to bring the proceedings to a halt pending the determination of the appeal. That is not the case here. A stay of the decision about the Awards would only partially bring proceedings in the Industrial Magistrates Court to a halt. An order staying the decision about the Awards would not touch the alternative proceedings in contract. Counsel for the Applicants (properly) informed the Court that in the event of an order being made staying the decision about the Awards, application would be made to the Industrial Magistrate for an adjournment of the remaining parts of the proceedings. It is clear that it would be open to the Applicants to make such an application for an adjournment, and equally clear that it is no part of the function of this Court to comment on how the Industrial Magistrate should deal with such an application.

The case for a stay has not been made out. The Court has not been taken to the issues about the Awards. It is impossible to assess whether or not the appeal is arguable. Failure to grant a stay will not compromise the capacity of the Court to grant the relief sought in the appeal. If the appeal is successful, Mr Beck's claim based upon the Awards will be dismissed. This is not a case in which monies are to be paid to Mr Beck forthwith and before disposition of the appeal. Neither, I should hasten to add, is there affidavit material suggesting that Mr Beck would be either unwilling or unable to repay monies delivered to him. (Indeed, the Applicants have no affidavit material at all.)

Doubtless, the decision of the Industrial Magistrate and an omission to grant a stay will result in the Applicants being required to deal with evidence with which, if their application to the Industrial Magistrate about the Award-based claims had been successful, the Applicants would not have been required to deal. All that means is that Mr Beck having been successful is enjoying the fruits of his success whilst the unsuccessful Applicants are not. Section 335 not being applicable to the Industrial Magistrates Court, any financial prejudice to the applicants may ultimately be set right by an order about costs. The Applicants have not demonstrated that the balance of convenience favours grant of the stay. And in the circumstances of the case the balance of convenience is a contentious matter.

Given the workload carried by the Magistrates Court at Rockhampton and issues about the available witnesses, it is not at all clear when the proceedings in the Industrial Magistrates Court of Rockhampton will be completed if the dates of 20 and 21 November 2006 are vacated.

It was for those reasons that on 1 November 2006 I rejected the applications for a stay.

I reserve all questions as to costs. My Associate will arrange to take submissions in writing upon the matter.

Dated 9 November 2006.

D.R. HALL, President.
Released: 9 November 2006 / Appearances:
Mr J. Dwyer, instructed by Mr B. Hannan of BCI Law, Solicitors for the Appellant.
Mr B. Codd, instructed by O'Keefe Mahoney Bennett Solicitors for the Respondents.

Government Printer, Queensland

ÓThe State of Queensland 2006.