Comcare v Nicolas

Comcare, the Commonwealth’s workers compensation insurer, sought a stay of the Administrative Appeals Tribunal’s decision in the matter of Re Nicolas and Comcare [2014] AATA 189, pending the hearing and determination of Comcare’s appeal against the Tribunal’s decision. The Tribunal had remitted the matter to Comcare to recalculate Ms Nicolas’ compensation for incapacity for work on the basis of an average working week of 20 hours rather than the 12 hours used by Comcare. The Tribunal also ordered Comcare to pay Ms Nicolas’ costs of the proceedings before it. Comcare’s appeal was grounded on several grounds including failure to make findings of fact under relevant provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) and asking the wrong questions in applying those provisions. The court had to determine whether special circumstances existed to justify the stay of the Tribunal’s decision pending the hearing and determination of the appeal. The court found that there were no special circumstances warranting a departure from the rule that a successful litigant is entitled to the fruits of their judgment pending the appeal. The court emphasised that the discretion conferred by s 44A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) should be exercised only where special circumstances exist, for example, where the appeal, although successful, may otherwise be rendered nugatory. The court noted that the appellant had not established any special circumstances justifying a stay of the Tribunal’s decision. The court dismissed the application for a stay with costs.