DVFW and Comcare (Compensation)

This matter concerned an application by DVFW for a stay order under subsection 41(2) of the *Administrative Appeals Tribunal Act 1975* (Cth). The applicant sought review of a Comcare decision that affirmed a determination regarding the frequency of psychotherapy treatment for which Comcare accepted liability to pay compensation. Comcare opposed the application for a stay.

The primary legal issue before the Tribunal was whether it should grant a stay of the Comcare decision pending the final determination of the substantive review application. This required the Tribunal to consider the purpose of subsection 41(2) of the *Administrative Appeals Tribunal Act 1975*, which allows for stays to secure the effectiveness of the hearing and determination of an application for review.

The Tribunal reasoned that the decision to grant a stay is discretionary and not an automatic right. Applying the principle that a decision under review is presumed correct until proven otherwise, and drawing an analogy to court proceedings where a successful party is generally entitled to the fruits of a judgment, the Tribunal considered that an applicant must demonstrate special circumstances justifying a stay. The Tribunal referred to established principles for exercising this discretion, including the applicant's prospects of success, the consequences of refusing the stay, the public interest, the consequences for the respondent, and whether the review would be rendered nugatory without a stay.

The Tribunal refused the application for a stay order.