Comcare Australia v Wilson, Peter

[1997] FCA 186

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA DISTRICT REGISTRY       )    No. VG 690 of 1996

)

GENERAL DIVISION                 )

ON APPEAL FROM THE GENERAL DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:  COMCARE AUSTRALIA

(Applicant)

AND:     PETER WILSON

(Respondent)

CORAM:    Ryan J

DATE:     27 February 1997

PLACE:    Melbourne

REASONS FOR JUDGMENT

RYAN J:   There is before the Court an application for a stay of orders made by the Administrative Appeals Tribunal on 18 October 1996.  On that occasion the Tribunal made an order on an application in relation to a claim for compensation by the respondent, Mr Wilson, in respect of injuries sustained by him when he was serving in the Army Ready Reserve that:

The Decision under review be set aside and in substitution IT IS DECIDED that the Applicant is entitled to weekly compensation between November 1992 and May 1994.  The Application is remitted to the Respondent for calculation of entitlement.  IT IS FURTHER decided that the Applicant is not entitled to compensation pursuant to s.24 and 27 of the Safety Rehabilitation and Compensation Act 1988. The Respondent shall pay the Applicant's costs.

Subsequently the present applicant, Comcare, filed on 15 November 1996 a notice of appeal.  A request was then made of
the respondent, Mr Wilson's, solicitors that the calculation of the weekly payments due to Mr Wilson be deferred pending the appeal.  But on 21 January 1997 Mr Wilson's solicitors forwarded a letter to the solicitor for Comcare enclosing a bill of costs in taxable form claiming professional costs of $9779.40 and disbursements of $5582.02 making a total of $15,361.42.  In addition, it has been indicated that reimbursement will be sought for an additional $450 for a medical report which was not claimed in the bill of costs.

The solicitors for Comcare responded by requesting that, if the bill of costs were to be enforced, Mr Wilson should provide security for the repayment of the costs in the event that this Court should set aside the orders of the Tribunal.  That request was declined and Comcare brought the present application seeking a stay.

By a subsequent affidavit in support of the motion, Mr Santospirito, the solicitor for Comcare, has deposed that an appointment has been made for the taxation of the respondent's bill of costs on 4 April 1997. The notice of that appointment further requires that any objection to items in the bill must be filed and served not less than 14 days prior to the date for taxing.

It is further indicated that the appeal by Comcare has been fixed for hearing in a substantive way on 23 May this year. 
At the conclusion of his second affidavit, Mr Santospirito deposes that:

At the hearing in the Administrative Appeals Tribunal on 28 July 1995 the respondent stated in evidence that he was working full time at the Crown Casino in Melbourne.  He also stated that he worked overtime.

The transcript in which that evidence was recorded is exhibited to Mr Santospirito's affidavit which concludes:

I have no reason to believe that the respondent is not still working full time as stated in his evidence. I therefore believe that if the stay of the orders of the Tribunal is granted as sought the respondent will not suffer hardship.

The principles governing a stay pending an appeal against an order or judgment which requires the payment of moneys have been clearly enunciated in a number of judgments including that of Northrop J in this Court in Commissioner for Superannuation v Hastings 5 AAR 197 where his Honour said at 199:

For present purposes, the relevant provision is that the Court may make an order staying or otherwise affecting the operation of the decision of the Tribunal as the Court or a Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal.

In that respect, the Court considers that prima facie, and I use that expression intentionally, a stay order should not be made, but that in an appropriate case, the Court will make an order.  Under similar but differently worded provisions applicable in Supreme Court proceedings, the Supreme Court of Victoria constituted by Adam J in Scarborough v Lew's Junction Stores Pty Ltd, [1963] VR 129, at 130, set out considerations which are relevant in considering whether to grant a stay of an appeal in that Court. Those views were supported by Dawson J in the case of Commissioner of Taxation v Myer Emporium Ltd (1986) 60 ALJR 300, at 301. One of the special circumstances which is relevant is that if the appeal were to be successful, whether the successful appellant would be deprived of the fruits of his appeal if a stay of execution were not granted.

I take a similar view that, prima facie, a stay order should not be made and I regard it as incumbent on the applicant for
a stay to adduce some evidence demonstrating some risk out of the ordinary that if payment of the fruits of the judgment below were made to the respondent to the appeal they may not be recovered in the event that the appeal is successful.  In the present case I consider that Comcare has failed to discharge that onus of showing circumstances which create a risk out of the ordinary that it will not recover amounts of compensation or costs which may be paid between now and the hearing of the appeal to Mr Wilson, the respondent to the appeal.

I do not regard the fact that the appeal has been fixed for hearing and will come on for hearing within some three months or so as a consideration which displaces what I regard to be the prima facie position.  I was referred by Mr Frazzetto of Counsel for Comcare to a judgment of French J in Australian Telecommunications Corporations v Daniel Moffat unreported, 6 February 1992.  His Honour there observed:

...the evidence establishes that Mr Moffat is in receipt of an invalid pension.  It says nothing about his asset position and provides no real basis upon which to assess the degree of risk that Telecom might not be able to recover any payment made to him pursuant to the Tribunal's decision if its appeal were successful.  Nevertheless, the concept of risk, involving as it does, the weighing up of contingencies based on incomplete information it is reasonable to conclude that there is some risk of non-recovery in these circumstances.

After referring to the likelihood of the assessment process leading to an entitlement of between $20,000 and $50,000 his Honour concluded:

Assuming that to be correct, there is no reason to suppose that Mr Moffat's reasonable enjoyment of the fruits of the Tribunal's decision in the time said to be left to him, would require expenditure of even the full amount of the lower level of that range.

(It was common ground that Mr Moffat was suffering from a terminal illness.)  His Honour continued:

But there may well be a quite legitimate desire to pass on the immediate benefit of the award to members of his family which he would be entitled to do and in which event the amount paid could well be irrecoverable.

His Honour went on to grant a stay of the Tribunal's decision to the extent that it would require payment of a sum in excess of $15,000.

In the present case I can discern no features which exacerbate the risk of a kind comparable to those which attended Mr Moffat's circumstances.  The evidence here indicates that the respondent is in regular full-time employment and, indeed, working overtime.  As I infer, he is a comparatively young man and, apart from the back injury which gave rise to the claim for compensation, is in good health.  Accordingly, I do not regard Comcare as having discharged the onus which it bears of showing special circumstances of the kind required in order for this Court to stay the operation of the order of the Administrative Appeals Tribunal.  The motion is therefore dismissed with costs.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment of his Honour Justice Ryan.

Associate:

Date:

Counsel for the Applicant:    Mr R. Frazzetto

Solicitors for the Applicant: Australian Government Solicitor

Counsel for the Respondent:   Mr G.K. Moore

Solicitors for the Applicant: Arnold, Thomas & Becker

Date of Hearing:             27 February 1997

Date of Judgment:            27 February 1997