Australia: No hardship? No stay order

Last Updated: 25 August 2017
Article by Claire T Tota and Brett Ablong

Weston and Cleanaway Operations Ltd (11 July 2017)

Key Points

  • The Tribunal was required to consider whether Mr Weston should be granted a stay order in respect of the reviewable decision which found that there was no present liability to pay compensation.
  • The Tribunal was not persuaded that it was desirable to make the stay order.

Background

Mr Weston was employed by Cleanaway as an Oil Recovery Driver. Mr Weston submitted a claim for workers' compensation dated 21 April 2015 in respect of a left shoulder injury sustained as a result of a motor vehicle accident. Liability was initially accepted in respect of "temporary aggravation of left shoulder bursitis and rotator cuff strain, left distal lower leg soft tissue strain" sustained on 30 March 2015. Cleanaway issued a further determination dated 5 January 2017 which ceased present liability to pay compensation in respect of the injury. This decision was affirmed, and on 10 February 2017, Mr Weston lodged an Application for review of the reviewable decision. At the same time, Mr Weston also lodged an application to stay the reviewable decision on the basis that he was suffering financial hardship and the reviewable decision was wrong. The effect of staying the decision would have meant that Mr Weston's compensation payments were reinstated.

The issue before the Tribunal was whether Mr Weston should be granted a stay order in relation to the reviewable decision.

The Law

Section 41(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) provides that making an Application to the Tribunal for a review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision.

Section 41(2) of the AAT Act provides that the Tribunal may, on request of a party to a proceeding before the Tribunal, if the Tribunal is of the opinion that it is desirable to do so, make an order staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review (emphasis added).

In Said and Secretary and Dept of Social Services [2014] AATA 439, Deputy President Hotop outlined that section 41(2) confers on the Tribunal a broad discretionary power to make an order staying the operation or implementation of the decision under review. In considering whether to grant a stay order in compensation cases, Deputy President Hotop stated that the Tribunal should have particular regard to three main factors, namely:

  • The degree of hardship (if any) which may be suffered by that person as a result of the refusal to make a stay order;
  • In the event that the person's Application for review is unsuccessful, the likelihood of recovery (by the employer) of monies paid to that person as a result of the making of a stay order; and
  • The prospects of success of the person's Application for review.

In Re Secretary of Employment and Workplace Relations and Anastasiadis [2007] AATA 1065, the Tribunal found that in any stay application, the Tribunal should also determine whether:

  • It is in the public interest to grant a stay;
  • The review Application, if successful, would be rendered nugatory or pointless if the stay was not granted.

Conclusion

Member Gallagher first considered the prospects of success of Mr Weston's substantive Application. Member Gallagher considered that both Mr Weston and Cleanaway had an arguable case and the Tribunal was not required to make any further comment in relation to the prospects of success of the substantive Application.

Mr Weston submitted that he was without income and suffering financial hardship. Cleanaway submitted that the latest workers' compensation medical certificate showed that Mr Weston had some capacity to work and was therefore in a position to improve his financial situation. Member Gallagher considered that Mr Weston had failed to make a substantive or significant claim as to financial hardship that might accrue as a result of failing to grant the stay order.

Member Gallagher then considered the likelihood that Mr Weston would be able to repay the money. Mr Weston had not provided detailed submissions regarding the likelihood of being able to repay the money if a stay order was granted and Mr Weston was subsequently unsuccessful in the substantive Application. Cleanaway submitted that Mr Weston was not in a position to repay the money in the event that he was unsuccessful. Member Gallagher agreed, and gave little weight to that factor as it related to the granting of a stay in Mr Weston's favour.

No submissions were made by Mr Weston in relation to the effectiveness of the substantive review, and whether it would be adversely affected if the stay were not granted, nor whether it was in the public interest to make the order.

Member Gallagher was not persuaded that the stay order should be made and Mr Weston's Application to stay the reviewable decision dated 2 February 2017 was refused.

Lessons Learnt

In considering whether to grant an application for a stay, the Tribunal will have regard to the prospects of success for the Application for review, the potential hardship on the applicant if the stay order is not granted, the likelihood that the money could be repaid if the party is unsuccessful, and any other relevant factors. The weight given to each of the factors will depend on the evidence brought, and this decision makes it clear that specific evidence must be led, and that general claims of hardship, for example, are insufficient.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Claire T Tota
Brett Ablong
 
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