Australian Agriculture Pty Ltd v Banks [2004] ICQ 29 (2004) 176 QGIG 1

1 Vol. 176 FRIDAY, 7 MAY 2004 No. 1 ########################################################################################################################## INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 347 – application for stay Australian Agriculture Pty Ltd AND Gregory Banks (No. C23 of 2004) PRESIDENT HALL 23 April 2004 REPORT ON DECISION (as edited) In giving his decision from the Bench on 20 April 2004, the President said: “I am satisfied that this is a case in which a stay should not issue. I accept the appellant’s submission that the correct course to adopt, in exercising the discretion at s. 347, is to proceed on the basis of inquiring whether a case has been made that it is appropriate for a stay to be granted. That said, it seems to me that one can draw on the learning developed when stays were available only to protect the subject matter of the litigation, or alternatively, where a special case was made out. -- 1 of 2 -- 2 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 7 May, 2004 The first indication that a stay should not be granted, is that there seems to be no indication that Mr Banks is, at this stage, attempting to enforce the order in his favour. I am reluctant to make orders against persons who are not engaging in conduct or threatening to engage in conduct. The second indication is that the obvious basis for the grant of the stay is the suggestion that, if the money is paid over and the appellant is successful, the appellant might experience difficulty in getting the money back. I would have thought that if such a case was to be made, attacking as it does the financial stability of Mr Banks, that consistently with J.C. Scott Constructions v. Mermaid Waters Tavern Pty Ltd (No 1) [1983] 2 Qd. R. 243 and J.C. Scott Constructions v. Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd. R. 255, an affidavit would have been put in. Doubtless, if circumstances change, the appellant is free to renew the application made today. For completeness, I should add that it seems to me that where (as here) the Commission has itself stayed its decision for a period of time, by ordering that moneys be paid within 22 days of the decision, any application for a further stay should ordinarily be made within that period of time. I dismiss the application for a stay.”. Dated 23 April 2004. By the Court, [L.S] G.D. SAVILL, Acting Industrial Registrar Appearances: Mr A.A.J. Hornemann, directly instructed for the applicant. Respondent in person. -- 2 of 2 --