WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. Industrial Relations Act 1979. YMCA of Perth (Applicant) and Michael Cousins (Respondent) No PRES 3 of 2000. BEFORE HIS HONOUR THE PRESIDENT P J SHARKEY. 18 April 2000. Reasons for Decision. THE PRESIDENT: On 31 March 2000, I made an interim order to stay the operation of the decision of the Commission, constituted by a single Commissioner, in application No 473 of 1999 made on 3 March 2000. I made that interim order until the date fixed for hearing and determination of applica- tion No PRES 3 of 2000 or until further order. The application came on for hearing before me on 14 April 2000. I have already decided that the applicant has sufficient in- terest to make application under s.49(11) of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”) for the stay of the whole of the order and I have already declared that I am satisfied that appeal No FBA 18 of 2000, an appeal by the abovenamed applicant, has been insti- tuted within the meaning of s.49(11) of the Act. The order appealed against was deposited in the office of the Registrar on 3 March 2000. The order itself was one whereby the Commission ordered the payment of the sum of $7,561.00 by two equal payments of $3,780.50, the first to be made no later than 31 March 2000 and the second to be made no later than 30 April 2000, to the abovenamed respondent. The amount was ordered to be paid by way of compensation for loss. The law in relation to applications for a stay of the opera- tion of a decision is well settled. It is for the applicant to establish that the Commission ought to exercise its discretion in favour of the applicant, having regard to s.26(1)(a) and s.26(1)(c) (and sometimes s.26(1)(d)) of the Act. Further, the fundamental principle is that the successful “liti- gant” is entitled to the fruits of his or her “litigation”. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 80 W.A.I.G. 1760 It is necessary that the applicant establish— 1. That there is a serious issue to be tried. 2. That the balance of convenience lies with the appli- cant. SERIOUS ISSUE TO BE TRIED The appeal, as expressed in the particulars to the applica- tion, is based on five grounds, namely that the Commissioner erred in finding that— 1. Mr Cousins was not a casual employee and, there- fore, was dismissed. 2. The restructuring process was not complete and no regard, therefore, was had to the requirement that Mr Cousins show, by a specific comparison with other employees, that his selection for termination because of redundancy was unfair and he led no evi- dence to that effect. 3. The dismissal was unfair, despite the preponderance of evidence showing that Mr Cousins was treated in the same fashion as other employees and chose not to apply for any positions with the applicant em- ployer as part of the restructuring process. 4. Compensation should be assessed arbitrarily on the length of time Mr Cousins was unemployed and us- ing an average wage as the basis for calculating compensation. 5. Costs should not be awarded to the applicant de- spite the way in which Mr Cousins has conducted the proceedings. As to the question of a serious issue to be tried— 1. The applicant “believes” that Mr Cousins has no in- come or assets that could be applied to repay the applicant should the appeal be successful. 2. The history of the proceedings to date has demon- strated an extreme antipathy on the part of Mr Cousins to the applicant, such that it is extremely unlikely that Mr Cousins would repay any monies to the applicant should the appeal be successful. 3. It is extremely probable that, should the applicant succeed in its appeal, the result would be rendered nugatory by its inability to recover the monies paid to Mr Cousins in compliance with the Commission’s order. 4. Any prejudice to Mr Cousins, by reason of delay in paying the judgment sum should the appeal be un- successful, is outweighed by the detriment the applicant will suffer if the appeal is successful. For the respondent it was submitted that there was no seri- ous issue to be tried. It was submitted that there would be a cross-appeal on the ground that the applicant should have been reinstated. Notwithstanding the submissions to the contrary, it is plain that there are serious issues to be tried on all of the abovementioned five points. I do not want to go into these issues in detail. However, it might be argued that it is not clear how the quantum of com- pensation was assessed, and that no finding as to loss was made. It is also clearly an issue as to whether the conduct of the proceedings by the respondent was such as to warrant an or- der for costs against him. Further, it is in issue as to whether there was evidence that Mr Cousins’ selection for “redundancy” was unfair and whether he led evidence or sufficient evidence to that effect. I was satisfied that there were a number of serious issues to be tried. BALANCE OF CONVENIENCE The applicant maintained that the balance of convenience lay with it because, should the applicant succeed in its appeal, the result would be rendered nugatory by its inability to re- cover the monies paid to Mr Cousins in compliance with the Commission’s order. It was, therefore, submitted that any prejudice to Mr Cousins, by reason of delay in paying the amount ordered to be paid, was outweighed by the detriment suffered if the appeal were successful. It is to the point that Mr Cousins was unfairly dismissed, as he alleged, on or about 11 March 1999 and it is now approxi- mately 13 months since that date. Mr Cousins gave evidence that he was the owner of a motor vehicle which he valued at $19,000.00. He also gave evidence that he had 3,000 shares in Optus, which he valued at $5.00 per share. He gave evidence that he received $300.00 to $320.00 per week in Social Security payments. He produced a letter which he said was from his brother, in which the au- thor of the letter advised that he would ensure that the amount of the order would be paid in the event that the appeal was successful (exhibit 1). He also gave evidence that he had no debts. I accept his evidence of assets and income and lack of debt. Whilst I place little weight on the letter said to be written by the applicant’s brother which is hearsay, I am not satisfied, given the evidence of Mr Cousins’ assets and income, that there is likely to be a significant difficulty in recovering the monies if the appeal is successful. More cogent is that there is a serious issue to be tried as to the quantum of the order and that there is a question of an order for costs in the sum of about $2,000.00 to be considered on appeal. One other factor which supports the applicant’s claim that the balance of convenience lies with it is that the agent for Mr Cousins indicated that there would be a cross-appeal on the basis that Mr Cousins should have been reinstated. If that cross- appeal were successful, then the question of quantum would have to be approached differently. For that reason, too, the balance of convenience favours a stay until that question is resolved. The balance of convenience lies with the amount of the or- der not being ordered to be paid whilst the quantum of the order is seriously in issue and a serious question of costs re- mains outstanding. I attach little weight to the question of antipathy. For those reasons, I ordered that there be a stay, but that the monies be paid into and held on trust on the terms and condi- tions expressed in the order. Obviously, the order is made, in part, on the basis that there will be no inordinate delay in listing the appeal for hearing and determination. APPEARANCES: Mr A J Randles (of Counsel), by leave, on behalf of the applicant. Mr M Richardson, as agent, on behalf of the respondent.