WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT. Delivered: 17 March 1992. CORAM: WALSH J. IN CHAMBERS. Appeal No 2 of 1992. BETWEEN: LYNSEY BARRINGTON CARTER, Appellant and MARJORIE ANN DRAKE, Respondent and WESTERN AUSTRALIAN HOTELS AND HOSPITAL- ITY ASSOCIATION INC (UNION OF EMPLOYERS) AND BURSWOOD RESORT (MANAGEMENT) LTD, Second Respondent (Interveners). Catchwords Industrial Appeal Court —application for stay of proceed- ings—confined to own facts — Industrial Appeal Court Regulations, reg 6. Mr R E Turner appeared as agent for the applicants (respondents). Mr P M Nisbet (instructed by Messrs Fiocco Rattigan) appeared for the respondents (appellants). Case cited: Moore v Doyle (1969) 15 FLR 59 WALSHJ This is a summons which comes before me in order for me to determine whether the stay of proceedings, which follows from the lodgment of an appeal in number 1 IACT of 1992, should be lifted pursuant to reg 6. Unfortunately as far as I am aware the provisions of the Industrial Relations Act do not set down any criteria which should guide me in determining whether the stay should be lifted. The matter, as I see it, is governed by reg 6 which provides: "The institution of an appeal under these regulations shall operate as a stay of proceedings on the judgment or order, the subject of the appeal, but any Judge of the Court may on application made to him in chambers by any party to the appeal direct that the proceedings shall not be so stayed." When this matter came on for hearing before Rowland J several weeks ago, there was considerable discussion at the time as to whether the appeals were ill-founded because of the limitation imposed on an appellant to the Industrial Appeal Court which restricts an appeal to where a decision is erroneous in law or is in excess of jurisdiction. The word "decision" is, as I understand it, defined so as to include interim or interlocutory orders. It is sufficient for me to say that notwithstanding the fact that Mr Robert Turner in the two affidavits that he has filed in support of his application has challenged the right of the appellant to appeal, in my view that is a matter which can only properly be dealt with by the Industrial Appeal Court on 1 May or thereafter and I do not in any way attempt to deal with that argument now. I proceed on the basis that the appeal in relation to these orders has been laid and that as a result of it there is, under the legislation, an automatic stay which may be lifted. In determining whether the stay should be lifted I consider that firstly it is important to not lose sight of the fact that rightly or wrongly the legislation provides for a stay upon the lodging of an appeal. Under those circumstances it appears to me that it is upon the applicant to demonstrate that the stay order should be lifted. In determining the merits of the application I consider that I should have regard to where the balance of convenience lies and to the interests of justice generally in relation to this dispute. It appears to have been accepted by the president that once an appeal has been lodged and a stay applies, albeit only in relation to a so-called interim order, that the proceedings thereby become stayed in their totality. Obviously, on the assumption that that is correct, it would pose a matter of grave concern, having regard to the protracted nature of these proceedings, and the fact that they are relisted for hearing before the president on 26 March, 13 April, 4 to 5 May and 11 to 15 May next. Mr Nisbet of counsel, who opposes the application for the stay, makes two important concessions on behalf of the appellant, they being that: (1) the stay should be lifted to the extent which will permit the proceedings before the learned Presi- dent to continue on the dates to which I have referred; and 06477-1 980 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 72 W.A.I.G. (2) his client undertake not to proceed in any way with orders number 2 and 3, being part of the 17 orders made by the President on 4 February this year, most of which are the subject of the appeal to the Industrial Appeal Court. In addition Mr Nisbet through his client, on his behalf, gives an undertaking that if the stay is not lifted, Mrs Drake will be permitted to have full access to the de facto offices of the union which are at 22 St Georges Tferrace in Perth and that she will have, until the matter is determined by the President, complete access to all the books of account, financial data and affairs of the union. ■ Mr Thrner is unimpressed certainly with the latter offer, in view of the vitriolic history of the matter which apparently has included restraint proceedings and so on, and he makes an allegation that in any event Mrs Drake is fearful of going to the premises because she feels that her personal safety is at risk. Whether that is so or not is not a matter that I can determine or even have proper regard to. Unfortunately the background to this application is one of repetitive orders being made by the learned President on several occasions in the past which have inevitably resulted in appeals being lodged and in applications being made for stays. Mostly, I gather, the stay applications have succeeded although not inevitably so, the distinction which is said to have been drawn being whether the orders appealed against were interlocutory, procedural or final and substantive. The need for the orders that were made by the learned President on 4 February this year stems from a previous order that he had made in which he determined that a compulsory meeting should be held between the various parties so that contentious matters could be determined by way of resolution, including the location of the offices of the union and generally the way in which the affairs of the union were to be managed until such time as outstanding issues could be finally determined. In the interim, orders were made, as I understand it, authorising Mrs Drake in the short term to conduct the affairs of the union from her home at that address which was specified. Unfortunately in the events that followed, the meeting did not resolve the contentious issues but further aggravated the situation in that the majority resolution was that the union's affairs were to be conducted from 22 St Georges Terrace. This resolution was not accepted by Mrs Drake or the minority whom she represented because she regarded the meeting as being influenced by considerations of bad faith. She has sought, before the President, to regulate the situation in such a way that the affairs of the union since that resolution was passed were not conducted at that address and that she be given the protection of orders of the learned President which would properly enable her to carry out her functions as secretary and which would, in effect, preclude any wrongful use of the union's funds or activities which were not properly within the terms of the constitution of the union. There have been further difficulties in relation to a dispute of the office of president of the union. In order to regulate the unsatisfactory state of affairs the learned President made the detailed interim orders which are now the subject of this appeal and which I can only describe as being orders which were directed to preserve the proper, day-to-day administration and running of the union pending the hearing of the dispute. Either party was given liberty to apply upon 24 hours notice to vary these orders and in fact already such proceedings have been taken before the President. It appears that for at least 8 months, as unsatisfactory as it might be depending upon one's point of view, that the affairs of the union have been run from 22 St Georges Terrace where the various documentation and accounts are held and where cheques are being signed which are said to have led to an unlawful dissipation of the union funds. That is a matter which is hotly disputed; Mr Nisbet saying that these are matters of fact which can only be determined on the final resolution of the proceedings before the learned President. I emphasise that the legislation provides that the stay is to be automatic. It seems to me, on the information which I have, that the balance of convenience and the interests of justice, having regard to the fact that the matters are to be determined before the learned President by the end of May, do not justify me in granting a complete lift of the stay orders and I accordingly decline to do so. It is beside the point for me to speculate as to the reason why a stay order automatically applies in this jurisdiction. It is up to the applicant to persuade me that the stay order should be lifted, the burden being on such applicant. I have not been convinced in these circumstances, in view of the fact that this matter will hopefully be resolved in a short period of time, that I should lift it today, other than to give effect to Mr Nisbet's concession that it be lifted so as not to preclude the proceedings continuing to final determina- tion before the president. For these reasons I refuse to lift the stay order completely. In doing that I wish to say that that does not in any way preclude a subsequent application being made to the learned President to vary the orders that he has made, nor does it preclude him from making further orders, either in April or May during the resumed hearing, if he feels that the evidence at that stage justifies him in reviewing the matter, he having had the benefit of further evidence. In refusing the application for a stay, other than the extent to which I have referred, I, of course, rely upon the undertaking that orders 2 and 3 will not be attempted to be enforced and that Mrs Drake, or her representatives, will be given full access to the officers' books of account and so on and so forth.