Vitality Works Australia Pty Ltd v Yelda

PAYNE JA: The present case involved an application for a stay of a damages hearing fixed to be heard on 15 February 2021 by the NSW Civil and Administrative Tribunal (NCAT), pending the determination of an application for leave to appeal by Vitality Works Australia Pty Ltd (Vitality Works) about the question of liability, which was determined unfavourably to Vitality Works in October 2020. On 1 February 2021, I dismissed Vitality Works’ motion seeking a stay with costs and reserved reasons. These are my reasons.

On 3 July 2018, the respondent on the motion, Ms Yelda, commenced proceedings against Vitality Works and her employer, Sydney Water Corporation (Sydney Water), in NCAT alleging unlawful discrimination within the meaning of the Anti-Discrimination Act 1977 (NSW). At all relevant times those proceedings have been managed and heard together. On 19 October 2018, Senior Member Scahill in NCAT determined that liability would be determined before damages.

On 1 October 2019, NCAT determined that Vitality Works and Sydney Water contravened the Anti-Discrimination Act in relation to the creation and display of a poster containing a photograph of Ms Yelda: Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd [2019] NSWCATAD 203.

Vitality Works and Sydney Water appealed. On 13 October 2020, the NCAT Appeal Panel dismissed the appeals: Vitality Works Australia Pty Ltd v Yelda; Sydney Water Corporation v Yelda [2020] NSWCATAP 210.

On 25 November 2020, Senior Member Dubler SC in NCAT made timetabling orders for the damages hearing in relation to Vitality Works and Sydney Water. The damages hearing is listed for 3 days commencing on 15 February 2021. Vitality Works is required to file and serve its evidence on 3 February 2021. Medical evidence is required to be filed and served on 10 and 14 February 2021.

On 13 January 2021, Vitality Works filed a summons seeking leave to appeal against the decision of the NCAT Appeal Panel under s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW). No date has yet been fixed to hear that application for leave to appeal.

On 20 January 2021 Vitality Works sent an email to the NCAT Registry seeking the following orders:

On 20 January 2021, Senior Member Dubler SC in NCAT declined to make the orders sought and refused an application for a stay. The transcript of that hearing is not yet available, although I was told that Mr Dubler SC regarded the application as inconsistent with the dictates of ss 56-58 of the Civil Procedure Act 2005 (NSW).

On 25 January 2021, Vitality Works filed a notice of motion in this Court seeking an order that the damages hearing be stayed pending the determination of Vitality Works’ application for leave to appeal to this Court.

The following evidence was read on the application:

The application was framed as a stay but in effect sought an injunction preventing NCAT from proceeding to hear the damages claim which had been listed for three days commencing 15 February 2021.

The essence of Vitality Works’ submission was that they had a good case on appeal and that if the damages hearing was not stayed they would needlessly incur costs on a damages hearing which would ultimately be found to have been unnecessary. Whilst it was accepted that there would in any event be a damages hearing on 15 February 2021 involving Sydney Water and Ms Yelda, it was submitted that I should conclude that the hearing would be much shorter and that, overall, the interests of justice favoured staying the damages hearing as it related to Vitality Works.

It was also submitted that Ms Yelda would suffer no prejudice by reason of a stay being granted. I reject that submission. Ms Yelda has secured legal representation for the hearing on 15 February. Ms Yelda must conduct a case on damages against Sydney Water on that date, regardless of the outcome of Vitality Works’ application. I do not accept that Ms Yelda would not suffer prejudice if her damages claim against Vitality Works were stayed.

Vitality Works accepted that it must demonstrate that a stay is necessary: Civil Procedure Act, s 67. The applicable principles emphasise the difficulties facing Vitality Works here. In Symonds v Egan National Valuers (NSW) Pty Ltd [1996] NSWCA 513, Mahoney P (with whom Priestley JA and Handley JA agreed) said:

A case with a number of similar features to the present was determined by Bryson JA in Nikolaidis v Legal Services Commissioner [2005] NSWCA 91, which involved a stay of tribunal proceedings sought in the context of an interlocutory appeal from the predecessor tribunal to NCAT. Although the applicant’s claim in that case was accepted as reasonably arguable (see at [15]–[16]), Bryson JA emphasised that different considerations applied when a stay of execution of a judgment was sought, as in Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685, as opposed to a stay sought in relation to proceedings which were part-heard, as is the present case involving Vitality Works. At [18], Bryson JA said:

To similar effect, in relation to the Industrial Relations Commission, in Rockdale Beef Pty Ltd v New South Wales Industrial Relations Commission (2005) 148 IR 395; [2005] NSWCA 369, Hodgson JA at [12] said:

Vitality Works’ principal argument in support of a stay is that it would incur costs in preparing and participating in the damages hearing which would ultimately be wasted if it succeeds in obtaining leave to appeal and in the appeal itself. As Ward JA said in Bannister & Hunter Pty Ltd v Transition Resort Holdings Pty Ltd [2014] NSWCA 87 at [18] about a similar submission:

The same conclusion applies here. That is, assuming Vitality Works’ application for leave to appeal is properly arguable, I am not satisfied that the balance of convenience favours the making of the order sought by Vitality Works. I am not satisfied that the effect of Vitality Works incurring costs which might ultimately prove to have been unnecessarily incurred will produce such an adverse result as to warrant interlocutory intervention at this stage.

I respectfully agree with Bryson JA’s conclusion in Nikolaidis that:

I am not satisfied that sufficient reason has been shown to make the orders sought by Vitality Works. No sufficient reason has been shown for this Court to interfere with the ordinary functioning of NCAT and stay the damages hearing. To the contrary, in circumstances where the damages hearing in relation to the closely related Sydney Water case is proceeding in any event on 15 February 2021, I am positively satisfied that making the orders sought in Vitality Works’ notice of motion would not be in the interests of justice and would be contrary to the objects of ss 56-60 of the Civil Procedure Act.

For these reasons I made orders on 1 February 2021 as follows: