Ansett Australia v Mackay

[2000] VSC 66

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 7935 of 1999

ANSETT AUSTRALIA	Appellant
v.
ASHLEY MACKAY	Respondent

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 FEBRUARY 2000
DATE OF JUDGMENT:	29 FEBRUARY 2000
CASE MAY BE CITED AS:	ANSETT AUSTRALIA v. MACKAY
MEDIUM NEUTRAL CITATION:	[2000] VSC 66

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CATCHWORDS:      Practice and Procedure – Stay of order of Magistrates' Court granting weekly payments of compensation to worker pending hearing of appeal.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. M.J. Walsh	Gadens Lawyers
For the Defendant	Mr. D.G. Brookes	Maurice Blackburn Cashman

HIS HONOUR:

1. I have before an appeal from the order of a Master of the court whereby the Master refused to grant a stay in respect of an order made by the Magistrates' Court on 25 November 1999 pending the hearing and determination of an appeal against the order.

1. The proceeding before the Magistrates' Court was a proceeding in which the respondent, Ashley Mackay, claimed payments of compensation from his employer, the appellant, Ansett Australia, pursuant to the provisions of the Accident Compensation Act 1985.

1. On 25 November 1999 the Magistrates' Court ordered (inter alia) that the appellant pay to the respondent weekly payments of compensation from 26 November 1998 "to date and to continue in accordance with law". 

1. On 17 December 1999 the Master granted the appellant an order for review of the order of the Magistrates' Court.  The questions of law which the Master found were raised by the appeal are:

1.Whether the learned magistrate erred in law in holding that, because the rejection notice served in purported pursuance of section 109 of the Accident Compensation Act 1985 ("the ACA") was served out of time, the Court was obliged to make an order for arrears of weekly payments, and continuing, without the respondent being first obliged to establish his entitlement to such compensation in accordance with the ACA.

2.Whether the learned magistrate erred in law holding that the respondent's claim for compensation constituted sufficient evidence, or sufficient prima facie evidence, of the respondent's entitlements to compensation to justify making the order for compensation.

1. At the time the Master granted the order for review he made (inter alia) the following order in the matter:

"5.Subject to further order, the order referred to in paragraph 1 of "Other Matters" is stayed -

(a)       until 4.00 p.m. on 14 January 2000;

(b)thereafter, subject to there being filed by 12 January 2000 an affidavit or affidavits proving compliance with paragraph 1, until the determination of the appeal."

1. Para. 1 of the Master's order required service of the relevant documentation on the respondent and the Registrar of the Magistrates' Court on or before 7 January 2000.

1. Although the appellant complied with para. 1 of the order in that it served the appropriate documentation on 21 December 1999, due to an oversight on the part of its solicitors the affidavit which the Master required to be filed by 12 January was not filed until 31 January.  In that situation the stay expired at 4 p.m. on 14 January 2000.

1. On 31 January 2000 the appellant filed a summons in the court seeking:

"1.That the time for filing the affidavit referred to in paragraph 5(b) of the Order of Master Wheeler made on 17 December 1999 be extended until 31 January 2000.

2.That pursuant to Order 58.15 the stay granted by Master Wheeler on 17 December 1999 be extended until the determination of the appeal."

1. On 16 February 2000 the Master dismissed the appellant's summons.  His reasons for doing so as recorded on the Court Record of Hearing read:

"Although the Legislation is deficient and does not cover appeals from the Magistrates' Court, quite obviously the intention of the Legislature is to 'bar' stays in appeal situations."

Doubtless that was a reference to s.52(6) of the Accident Compensation Act 1985, which reads:

"52.

(6)If the determination appealed against included a determination that compensation in the form of weekly payments be paid, the weekly payments must continue despite service of notice of intention to appeal or lodging the appeal application until the County Court reviews the determination in accordance with sub-section (8)."

Sub-section (8) reads:

(8)On the making of a determination by the Supreme Court on an appeal under this section, the County Court must review its determination and make a new determination not inconsistent with the Supreme Court's determination."

1. But, of course, s.52 of the Act is dealing with appeals from the County Court to the Court of Appeal of this court, not appeals from the Magistrates' Court to a single judge of the court.

1. As I pointed out in J. Gadsen Pty Ltd & Anor. v. McDonald (unreported 25 March 1999), an appeal from the Magistrates' Court to this court is brought pursuant to the provisions of s.109 of the Magistrates' Court Act, and although one may well have regard to the spirit of s.52(6) when dealing with an application for a stay, I am not satisfied that one can simply proceed on the basis that s.52(6) refers to such an appeal.

1. At all events the basis upon which the application for a stay is made is that having regard to the poor financial circumstances of the respondent it is highly unlikely that the appellant will be able to recover any payments made by it pursuant to the order of the Magistrates' Court, if hereafter it is successful on the appeal.

1. There is one matter which distinguishes the present case from Gadsen and which I consider has an important bearing upon the fate of the present application.

1. The respondent lodged his claim for compensation with the appellant on or about 14 December 1998.  Section 109(1) of the Act reads:

"109.

(1)If the Authority or a self-insurer does not give written notice of a decision to accept or reject a claim for weekly payments within 28 days of receiving the claim -

(a)       the claim is deemed to have been accepted;  and

(b)the Authority or self-insurer must pay weekly payments to the worker subject to and in accordance with this Part."

1. The claim was not accepted or rejected within the 28-day period.

1. It was mandatory, therefore, for the appellant to make weekly payments of compensation to the respondent.  This, of course, it has not done.  In that situation I do not consider that it would be appropriate to grant any stay in respect of the order of the Magistrates' Court.

1. The appeal is dismissed with costs to be taxed including any reserved costs and paid by the appellant.

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