Employment Services Australia Pty Ltd v Poniatowska [2009] FCA 821

Employment Services Australia Pty Ltd v Poniatowska [2009] FCA 821

A stay should be granted only on conditions because the appellant showed a real risk that, if the full judgment sum were paid to the first respondent, a significant proportion might be applied to liabilities and might not be recoverable if the appeal succeeded, but the evidence did not show that the whole judgment sum would be unrecoverable or that the appeal would be rendered entirely nugatory. The balance of convenience was met by requiring payment of $50,000 to the first respondent, an undertaking to progress the appeal quickly, and a bank guarantee for the balance, interest and costs.

Jurisdiction
Australia
Judgment Date
03 August 2009
Procedural Posture
Appeal Motion for Stay of Orders Pending Hearing and Determination of Appeal / Notice of Motion Filed on 15 July 2009 After Judgment and Orders at First Instance; Orders Made on Stay Application
Outcome
Stay granted on conditions pending the hearing and determination of the appeal.
Legal Topics
['stay Pending Appeal' 'judgment Sum' 'bank Guarantee' 'balance of Convenience' 'nugatory Appeal']
['civil Procedure' 'appeals' 'employment Law'] ['stay Pending Appeal' 'judgment Sum' 'bank Guarantee' 'balance of Convenience' 'nugatory Appeal']

Case Brief

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Procedural Posture

Appeal Motion for Stay of Orders Pending Hearing and Determination of Appeal / Notice of Motion Filed on 15 July 2009 After Judgment and Orders at First Instance; Orders Made on Stay Application

Legal Issues

  1. 1 ['Whether Orders 1 and 3 made on 23 June 2009 and entered on 7 July 2009 should be stayed pending the hearing and determination of the appeal.' 'Whether the appeal would be rendered nugatory if no stay were granted because the judgment sum might not be recoverable if the appeal succeeded.' 'How the balance of convenience, competing rights of the parties, and prejudice to the first respondent should affect any stay order.']

Ratio Decidendi

A stay should be granted only on conditions because the appellant showed a real risk that, if the full judgment sum were paid to the first respondent, a significant proportion might be applied to liabilities and might not be recoverable if the appeal succeeded, but the evidence did not show that the whole judgment sum would be unrecoverable or that the appeal would be rendered entirely nugatory. The balance of convenience was met by requiring payment of $50,000 to the first respondent, an undertaking to progress the appeal quickly, and a bank guarantee for the balance, interest and costs.

Court Disposition

Stay granted on conditions pending the hearing and determination of the appeal.

Orders

  • ['Upon payment by the appellant to the first respondent of the sum of $50,000 on account of damages, and upon the appellant undertaking to proceed with the appeal as quickly as possible with the intent that it be heard in the November 2009 sittings of the Full Court, and upon the appellant within seven days...