Hoek and MMA Offshore PTY LTD

The Administrative Appeals Tribunal (AAT) considered an application by Mr Aaron Gary Hoek (the Applicant) for a stay order concerning a decision by Allianz, the Respondent's insurer, to suspend his weekly workers' compensation payments. The Applicant had suffered a lumbar spine injury in May 2016 while working on the Respondent's vessel. Allianz accepted liability for the claim but subsequently suspended the Applicant's weekly payments on 15 September 2017, pursuant to subsection 50(5) of the *Safety, Rehabilitation and Compensation Act 1988* (SRCA). The Applicant sought a stay of this decision pending his application for review by the Tribunal.

The primary legal issue before the Tribunal was whether to grant a stay of Allianz's decision to suspend the Applicant's weekly payments, pursuant to section 41(2) of the *Administrative Appeals Tribunal Act 1975* (AAT Act). In determining this, the Tribunal was required to consider the interests of all persons affected by the review and whether a stay was desirable to secure the effectiveness of the hearing and determination of the application for review. This involved assessing three key factors: the degree of hardship the Applicant might suffer if a stay was refused, the likelihood of recovery of any moneys paid to the Applicant if his review application was unsuccessful, and the prospects of success of the Applicant's review application.

The Tribunal reasoned that a broad discretionary power existed under section 41(2) of the AAT Act to grant a stay. Applying the principles from *Said and Secretary, Department of Social Services* [2014] AATA 439, the Tribunal considered the Applicant's significant financial hardship, including substantial mortgage repayments and depleted savings, which would be exacerbated by the refusal of a stay. It also considered the likelihood of recovery of moneys paid, noting that this was more likely for ongoing payments than for arrears. Finally, the Tribunal assessed that the Applicant's application for review had a reasonable prospect of success, particularly given the lack of evidence supporting the employer's compliance with rehabilitation program requirements under the SRCA.

Consequently, the Tribunal ordered that the decision of Allianz dated 15 September 2017 be stayed in so far as it suspended payments to the Applicant from 27 March 2018 onwards, until the determination of the application for review or further order. However, the application for a stay was refused in respect of the period from 15 September 2017 to 26 March 2018, meaning the Applicant would not receive compensation for that period.