Our Place Incorporated v Tivy, Joanne Maree

[1998] TASSC 19

19/1998

PARTIES:  OUR PLACE INCORPORATED
  v
  TIVY, Joanne Maree

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 19/1997
DELIVERED:  13 March 1998
HEARING DATE/S:  17 February 1998
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Workers Compensation - Miscellaneous matters - Application for stay of order of Workers Rehabilitation and Compensation Tribunal pending appeal to the Supreme Court - Stay refused in exercise of discretion.

Precise Timbers Pty Ltd v Burgess (1991) 3 Tas R 124, Townsend v Balmer 113/1997, referred to.
Aust Dig Workers Compensation [255 - 278]

REPRESENTATION:

Counsel:
           Applicant:  J L Dewar
           Respondent:  C J Bartlett
Solicitors:
           Applicant:  Crisp Hudson & Mann
           Respondent:  Bartletts

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  19/1998
Number of pages:  2

Serial No 19/1998
File No LCA 19/1997

OUR PLACE INCORPORATED v TIVY

REASONS FOR JUDGMENT  COX CJ

13 March 1998

The respondent worker was accepted by the applicant employer as entitled to compensation for loss of weekly earnings by reason of a back injury received in the course of her employment.  Relying on a certificate under the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s86(1)(c) issued by a medical practitioner who had examined the worker and who certified that in his opinion the worker had wholly recovered or substantially recovered from the effects of the injury in respect of which weekly payments were being made, the applicant terminated those payments. The worker, wishing to dispute the termination, referred the matter to the Tribunal under s86(4). On 12 December 1997 the Chief Commissioner of the Tribunal ordered that the employer reinstate the worker's weekly payments of compensation as from the date of termination. Another Commissioner, on 6 February 1998, made an order identifying the date of termination and quantifying the amount of weekly payments. The earlier order was amended to require the applicant to pay to the respondent the sum of $564.13 per week from 17 July 1997 and subsequently as provided by the Act.

The applicant has appealed on the following grounds:

"1The Tribunal erred in failing to make any finding of fact as to the relationship (if any) of the medical evidence adduced on behalf of the respondent to the compensable injury.

2The tribunal erred in law and in fact in placing any reliance on the medical evidence of Dr MacLaine-Cross when it concluded that 'there are effects of the injury that are more than trivial or inconsequential and that the onus of proof is not discharged'.

3The Tribunal erred in law and in fact in finding 'for the purposes of Section 86(1)(c) the worker is still suffering back pain' without attributing the 'backpain' to the compensable injury.

4The Tribunal erred in law and in fact in law in concluding that Dr Stewart had weakened the effect of his opinion that the respondent had wholly or substantially recovered from the effects of the compensable injury by saying that she was fit to 'undertake some from (sic) of rehabilitation programme'."

The present application is for an order staying the two orders I have recited pending the determination of the appeal.

There was some debate as to whether the power to order a stay of proceedings pursuant to the Rules of the Supreme Court, O76, r58 was applicable to an appeal from the Tribunal established by the Act. In The Board of the Tasmanian Government Insurance Office and Anor v McLeod A33/1991, Crawford J accepted that the workers compensation division of each court of requests which was subsequently replaced pursuant to amending legislation (No 48 of 1996) by the present Tribunal was an inferior court for the purposes of Div2 of O76 of which r58 forms part.  However, the amending Act would certainly suggest that the current appeal should be dealt with by this Court as an appeal from a Tribunal which would be governed by Div3 of the lastmentioned order.  Rule 68 extends the provisions of rr38 and 50 - 56 to appeals under Div3 from Tribunals, but does not expressly mention r58.  However, both parties concede the existence of an inherent power in the Court to stay proceedings if the justice of the case requires it.  Having regard to the view I have formed of the proper order to be made on the application, it is unnecessary to express a final view on my power to grant a stay.

It is clear from several decisions of the court that the unilateral termination of weekly payments under the Act must be justified under s86 and that the employer bears the onus of establishing a proper basis for doing so (see Precise Timbers Pty Ltd v Burgess (1991) 3 Tas R 124 per Underwood J at 131 et seq and earlier cases cited by him under the Worker's Compensation Act 1927).  A summary mechanism for referring the termination to the Tribunal if the worker disputes the employer's right to terminate has been provided by s86(4) in order to protect the worker against a sudden loss of the means of subsistence by arbitrary and unjustified action on the part of the employer.  In my view it would take a very strong case to reverse pending the result of an appeal therefrom a determination of the Tribunal reached in favour of the worker after apparently proper enquiry.  I agree with the observations of Slicer J in a similar application (Townsend v Balmer 113/1997) at 3 that:

"The scheme of the legislation is to provide for prompt payment of benefits to an employee whilst affording rights of objection and referral to the employer.  The methodology adopted by the legislation is designed to prevent an employer from the use of obstructive tactics which could cause economic harm to an individual and his or her family."

The basis upon which the stay is sought is that the insurer fears that if the appeal is ultimately successful, the applicant will not be able to recover from the respondent the amount of the weekly payments made to her under the Tribunal's order.  The basis for this fear is that the insurer has received a Preliminary Notice under the Social Security Act 1991 (Cth), s1177 from the Department of Social Security advising that it may seek to recover from the insurer an amount equal to all or part of the amount payable to the worker. Nothing else save that she is currently in receipt of Social Security payments is known of the respondent's ability to repay pursuant to the Act, s149 any sum paid to her by way of compensation in excess of the payment to which she may ultimately be found to be entitled. Her capital assets and her capacity for gainful employment in the future are unknown. Prima facie she has a right confirmed by the Tribunal to receipt of weekly payments of compensation.  She should not be put in the position of having to rely on Social Security payments for subsistence pending the outcome of the employer's appeal merely because the latter's insurer fears she may not be able to repay any surplus a successful appeal may establish.  There are reasonable prospects that the appeal can be heard within weeks.  The application is refused.