Elvin v Fair Work Ombudsman (No 1) [2024] FCA 1071

Elvin v Fair Work Ombudsman (No 1) [2024] FCA 1071

A stay should be granted as to orders against Mr Elvin only, pending appeal and cross-appeal, due to the significant disadvantage he would suffer without a stay, the substantial amounts involved, the arguable grounds on appeal, and the absence of evidence he would dissipate assets, with the balance of convenience in his favour.

Parties
Appellant: Colin Kenneth Elvin; First Respondent: Fair Work Ombudsman; Second Respondent: Foot and Thai Massage Pty Ltd (In Liquidation); Third Respondent: Jun Millard Puerto
Jurisdiction
Australia
Judgment Date
16 September 2024
Procedural Posture
Interlocutory Application Within Appeal / Stay of Execution Pending Appeal
Outcome
Partial stay of execution granted as to Mr Elvin, pending appeal and cross-appeal.
Legal Topics
Stay of Proceedings, Appeal, Balance of Convenience, Enforcement of Judgment
Employment and Industrial Relations Practice and Procedure Stay of Proceedings Appeal Balance of Convenience Enforcement of Judgment

Case Brief

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Parties

Colin Kenneth Elvin

Appellant

Fair Work Ombudsman

First Respondent

Foot and Thai Massage Pty Ltd (In Liquidation)

Second Respondent

Jun Millard Puerto

Third Respondent

Procedural Posture

Interlocutory Application Within Appeal / Stay of Execution Pending Appeal

Legal Issues

  1. 1 Whether to grant a stay of execution of the orders of Justice Katzmann pending determination of appeal and cross-appeal
  2. 2 Whether the balance of convenience favours granting a stay
  3. 3 Whether there are serious questions for determination in the appeal

Ratio Decidendi

A stay should be granted as to orders against Mr Elvin only, pending appeal and cross-appeal, due to the significant disadvantage he would suffer without a stay, the substantial amounts involved, the arguable grounds on appeal, and the absence of evidence he would dissipate assets, with the balance of convenience in his favour.

Court Disposition

Partial stay of execution granted as to Mr Elvin, pending appeal and cross-appeal.

Orders

  • Orders 1, 2, 4(b) and 5 of the Orders of Justice Katzmann made on 10 May 2024 are stayed to the extent that they affect Mr Colin Kenneth Elvin until the determination of the amended notice of appeal filed on 6 July 2024 and the amended notice of cross-appeal filed on 19 July 2024, or further order of the Court.