CITATION:	State of Queensland & Ralph v Bell [2015] QCATA 172	

PARTIES:	State of Queensland
Lindy Ralph
(Applicant/Appellant)	
	V
Karen Bell	
	(Respondent)	

APPLICATION NUMBER:	APL398 -15	

MATTER TYPE:	Appeals	

HEARING DATE:	On the papers	

HEARD AT:	Brisbane	

DECISION OF:	Senior Member Stilgoe OAM	

DELIVERED ON:	30 November 2015	

DELIVERED AT:	Brisbane 	

ORDERS MADE:	1.	The application for a stay of the decision of the tribunal dated 16 September 2015 is refused.	

CATCHWORDS:	APPEAL – LEAVE TO APPEAL – ANTI-DISCRIMINATION – COSTS – APPLICATION FOR STAY – where costs ordered in anti-discrimination proceeding – where costs appealed – where costs ordered a second time – where second appeal – where application to stay order - whether grounds to stay proceedings

Berry v Green [1999] QCA 213
Croney v Nand [1999] 2 Qd R 342 
Kostopoulos v G E Commercial Finance Australia Pty Ltd [2005] QCA 311
Chief Executive Officer, Department for Child Protection v S (2007) 98 ALD 329
Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453  

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

[1]	Karen Bell was successful in establishing that she had suffered sexual harassment in the workplace. The tribunal ordered the State of Queensland pay her compensation and, later, costs of the proceeding, which were assessed at $113,131.02. The State of Queensland successfully appealed that decision and the issue of costs was returned to the tribunal. The tribunal again ordered costs, on the same scale as previously ordered. This time, however, the State of Queensland was to pay 2/3 of Ms Bell’s assessed costs.
[2]	The State of Queensland has, again, appealed that decision. It has also applied for a stay of the decision. 
[3]	The question of whether a stay of the original decision should be granted is usually addressed according to established principles: Is it an appropriate case to grant a stay?  Does the applicant have an arguable case on appeal?  Would a refusal of a stay render the appeal nugatory?  Does the balance of convenience favour granting the stay?
[4]	I accept that there is an arguable case on appeal. 
[5]	I do not accept that, if the stay is not granted, there will be no point to the appeal. State of Queensland submits that the tribunal’s second orders require an assessment of costs if the parties cannot agree. It submits that a further costs assessment is unnecessary, because there has already been an assessment under the first order.
[6]	That submission may be relevant to the question of where the balance of convenience lies but it cannot support an argument that, without a stay, the appeal will be of no utility.
[7]	In its grounds for appeal, the State of Queensland takes issue with both the order for costs in its entirety and the Scale on which the order is based. Both of those issues will be live, even if I do not order a stay.
[8]	Further, given that there has already been an assessment of the costs on the District Court Scale, I do not see why a further assessment is necessary. The solicitors for Ms Bell have already sent a demand for payment which is 2/3 of the original assessment. It is an obvious solution to agree the quantum and then simply argue the principle.
[9]	The balance of convenience does not favour a stay. The fundamental principle governing applications for a stay is that the successful party is prima facie entitled to the fruits of its judgment, and the question is whether or not there is some particular feature of the case which warrants departure from that position. The State of Queensland has not argued that it is not able to pay Ms Bell. It has not argued that Ms Bell will not be able to refund the payment, if an appeal is unsuccessful.
[10]	The application for a stay of the tribunal decision dated 16 September 2015 is refused.