Francis v Farrell
[2015] VSC 419
•14 August 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2015 03523
| DEBRA ANNE FRANCIS | First Appellant |
| PATRICK STEVEDORES HOLDINGS PTY LTD | Second Appellant |
| v | |
| BRUCE FREDERICK FARRELL | Respondent |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 August 2015 |
DATE OF JUDGMENT: | 14 August 2015 |
CASE MAY BE CITED AS: | Francis and anor v Farrell |
MEDIUM NEUTRAL CITATION: | [2015] VSC 419 |
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PRACTICE AND PROCEDURE – Stay of orders of Magistrates’ Court granting weekly payments of compensation pending hearing for appeal – J. Gadsden Pty Ltd & Another v Macdonald [1999] VSC 127.
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APPEARANCES: | Counsel | Solicitors |
| For the First Appellant | Mr M Hooper | Minter Ellison |
| For the Second Appellant | Mr M Hooper | Thomas Geer |
| For the Respondent | Mr E Makowski | Williams Winter |
HER HONOUR:
The appellants filed a summons and notice of appeal on 8 July 2015. The appeal is from orders made by His Honour Magistrate Phillip Ginnane in the Magistrates’ Court of Victoria proceeding C12837237 on 1 July 2015 (‘the Orders’).
The appellants’ summons seeks orders for, inter alia, a stay on the Orders pending resolution of the appeal. In particular, the appellants seek a stay on paragraphs 1-4 of the Orders.[1] They are as follows.
1.Defendants pay to the plaintiff weekly payments in accordance with the Act at the rate appropriate for no current work capacity on and from 24 March 2012, such payments to continue in accordance with law;
2.Declare that the rejection notices dated respectively 6 December 2010, 31 July 2012 and 13 August 2012 be set aside;
3.Defendants pay interest under s 114E of the Act;
4.Defendants pay costs including reserved costs on Magistrates Court Scale ‘G’ to be taxed by the Costs Court in default of agreement.
[1]Exhibit ‘BJR-6’ to the affidavit of Benjamin Russell sworn 15 July 2015.
The parties were invited to provide submissions on whether or not the Court should apply the decision of Gadsden Pty Ltd and MMI Workers Compensation (Victoria) Limited v McDonald.[2] Both parties subsequently filed written submissions. In addition, the parties made oral submissions at the hearing of this application on 5 August 2015.
[2][1999] VSC 127 (‘Gadsden’).
Appellants’ submissions
The appellants submit that the court should exercise its direction and grant a stay. The appellants submit that the court should not follow Gadsden and seek to distinguish it from the present case. The appellants submit that the respondent has not provided evidence of financial hardship or detriment but rather has ongoing income in the form of a disability support pension. They argue that there is no suggestion his ability to reside in his place of residence would be in jeopardy if a stay is granted.
The appellants submit that it is usual practice to stay a judgment pending appeal where there is a risk that the plaintiff will be unable to repay the money without difficulty or delay if the appeal were to succeed.[3] On this point, the appellants argue that the respondent would not be likely to repay amounts received. They submit that they would not be able to recover from the respondent by obtaining an instalment order against his disability pension.
[3]Debra Anne Francis and Patrick Stevedores Holdings Pty Ltd, ‘Appellants’ Submissions in support of Stay Application’, Submission in Francis and anor v Farrell S CI 2015 03523, 12 August 2015, [13].
The appellants submit the respondent was ordered to pay compensation (past weekly payments) upon being convicted of criminal offences for obtaining financial advantage by deception. Evidence was provided in the form of a notice dated 29 July 2015 from the insurer (QBE) to the respondent (‘the Notice’) which referred to the order of the Magistrates’ Court dated 30 November 2010 under which he was required to pay WorkSafe compensation of $136,979.60 (now $204,178.41 due to interest) in relation to eight convictions of obtaining financial advantage by deception under the Crimes Act 1958 in connection with his claim for compensation under the Accident Compensation Act1985 (‘the Act’).[4] The appellants submit the respondent’s disregard for the order made on his conviction demonstrates he has no intention of repayment if the appeal succeeds and that a stay is required to avoid irremediable prejudice to the appellants.
[4]Exhibit ‘BJR-2’ to the affidavit of Benjamin Russell sworn 5 August 2015
The appellants have indicated that if the Court were to stay past workers’ compensation payments, then the insurer would set off future weekly payments against the debt owed by the respondent due to his criminal conviction order.[5] The appellants submit that, in practical terms, this means that it is unlikely that the respondents would be paid any money prior to resolution of the appeal.
[5]Ibid. The letter from QBE to the respondent dated 29 July 2015 asserts that it will set off the recovery amount against any weekly payments to which he may be entitled.
The appellants submit that the respondent has indicated that he would dispute the set-off by issuing a Magistrates’ Court proceeding. They submit this unnecessary dispute would be a waste of judicial resources, time and costs and contrary to sections 7, 19 and 24 of the Civil Procedure Act 2010. It could be avoided by staying both the past workers’ compensation payments and future workers’ compensation payments.
Respondent’s submissions
The respondent submits that the court should follow the decision in Gadsden and states that the present situation is akin to Gadsden. The respondent argues, applying Gadsden:
(a) the question (as to whether or not a stay should be granted) is within the discretion of the court;
(b) the imposition of the stay is causing (the worker) great financial hardship;
(c) there is no doubt that to grant a stay in respect of the payment of weekly payments because an appeal is pending is contrary to the spirit of the accident compensation legislation;
(d) …it is highly unlikely that the appellants will be able to recovery them if are successful on appeal.[6]
[6]Bruce Frederick Farrell, ‘Respondent’s Outline of Submissions’, Submission in Francis and anor v Farrell S CI 2015 03523, 11 August 2015, [3].
The respondent submits that the appellants ‘cannot have it both ways concerning the financial hardship a stay would impose upon Mr Farrell’. In this regard, they state that ‘the employer ought not be permitted to, on the one hand, argue that it will be unlikely to be able to recover from Mr Farrell due to his poor financial situation, and on the other hand, to submit that any stay will not cause Mr Farrell hardship, simply because for example, the plaintiff is on a disability support pension.’[7]
[7]Ibid [5].
The respondent submits that if the court is inclined to grant a partial stay, namely in relation to past workers’ compensation payments, those arrears comprehend the period from 24 March 2012 to 1 July 2014, that is, some 3 years and 3 months, which they observe is ‘not insignificant’ and ‘much larger’ than that period in Gadsden. Thus, is it submitted by the respondent that confining the stay to this period would afford the appellants appropriate protection, if a partial stay is granted by the court.
The respondent submits that the appellants had an ability to incorporate the 2010 payment order in the Magistrates’ Court proceeding but did not do so. The Notice post-dates the Orders. The Notice is a decision by QBE as an agent for the Victorian WorkCover Authority ‘which may according to its own terms, be disputed, following Conciliation, in a Court of competent jurisdiction’.[8] The respondent did not dispute the references in the Notice to his eight convictions and that he had not paid WorkSafe the compensation referred to in the notice.
[8]Ibid [10(c)].
Applicable principles
The principles governing a stay of execution of judgment pending the hearing and determination of an appeal are well established.
Prima facie, a successful party it entitled to the benefit of the judgment obtained below and the presumption that the judgment is correct. The applicant for a stay therefore bears the onus of demonstrating that a stay is justified.
…
The Court has a wide discretion, which is not circumscribed by rigid rules. It should take into account all the circumstances of the case.
In Scarborough’s v Lew’s Junction Stores Pty Ltd (approved in Cellante), Adam J recognised that special circumstances might exist where a successful appellant would be deprived of the fruits of the appeal if a stay of execution were not granted. In such a case, the appeal might be rendered nugatory.
In Cellante, Young CJ stated that special circumstances would ‘exist here for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed’.
An appeal could be rendered nugatory in that sense in a variety of ways.[9]
[9]Maher v Commonwealth Bank of Australia [2008] VSCA 122 (Dodds-Streeton JA) cited in St Kilda Arts and Events Company and Others v Apes with Wings and another [2015] VSCA 199 at [28].
Gadsden concerned an appeal to this Court from a decision in the Magistrates’ Court to pay both past workers’ compensation payments (from March 1997 until 10 December 1998) and future workers’ compensation weekly payments. In that case, the respondent argued, firstly, that the stay (which had already been imposed) was causing him great financial hardship. This was not challenged by the appellants. They relied upon this to argue that they would be unable to recover the payments in the event the appeal was successful.
Secondly, the respondent in Gadsden argued that a stay would be contrary to the spirit of the Act. Beach J accepted this argument. His Honour held:
In the circumstances of this case, in particular the fact that if those payments are made it is highly unlikely that the appellants will be able to recover them if they are successful on the appeal, I consider the appropriate course to adopt is to confine the stay to the period from March 1997 to 10 December 1998, but not thereafter.[10]
[10]Gadsden at [14].
Application
The reference to the insurer’s intended application of weekly payments being used as set-off rather than being paid to the respondent is not of itself a reason to justify a stay of those payments. The respondent would still receive a benefit if the payments were being set-off, in the form of reducing the debt and interest occurring. The reference to the respondent potentially issuing further proceedings regarding the set-off issue is premature. They have not been issued and may not be issued.
The respondent did not contradict the appellants’ submissions (and evidence) that he was impecunious.
In Gadsden, the benevolent spirit of the Act outweighed the fact it was highly unlikely the appellants would be able to recover payments if they were successful on appeal.
In the current proceeding, the respondent’s conduct is a countervailing factor to the benevolent spirit of the workers’ compensation legislation. In particular, he has eight convictions of obtaining financial advantage by deception under the Crimes Act 1958 in connection with his claim for compensation under the Act, and has not paid the compensation owed in respect of that conviction ($204,178.41 as at 29 July 2015).
Special or exceptional circumstances exist in this case to warrant the granting of a stay on both the past and future workers’ compensation payments the subject of the Orders. Given the respondent’s impecuniosity, and his failure to repay monies already owed to WorkSafe, there is a real risk that it will not be possible for the appellants to recover any monies paid to the respondent in the event they are successful on appeal.
It is appropriate to make an order that the workers’ compensation payments be stayed pending resolution of the appeal or further order of this Court.
The parties may make submissions on the appropriate form of order.
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