FEDERAL COURT OF AUSTRALIA

Comcare v Nicolas [2014] FCA 638

THE COURT ORDERS THAT:

1.    The interlocutory application dated 20 May 2014 is dismissed.

2.    The applicant pay the respondent’s cost of the application, as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

1    By interlocutory application dated 20 May 2014, Comcare seeks a stay of the whole of the decision of the Administrative Appeals Tribunal (“Tribunal”) in Re Nicolas and Comcare [2014] AATA 189 made on 4 April 2014. The application is made pursuant to s 44A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) and the stay is sought pending the hearing and determination of Comcare’s appeal from the Tribunal’s decision which appeal has been set down for hearing before a Full Court of this Court on Monday, 18 August 2014.

Background

2    Ms Nicolas applied to the Tribunal for review of a decision made by Comcare to calculate her entitlement to compensation for incapacity for work on the basis of her having worked 12 hours per week. The issue for the Tribunal was the identification of the period to be used in calculating Ms Nicolas’ “normal weekly earnings” for the purpose of assessing her entitlements under s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”).

3    The Tribunal set aside the decision under review and remitted the matter to Comcare with a direction that Ms Nicholas’ entitlement to compensation for incapacity for work under s 19 of the SRC Act be calculated on the basis of an average working week of 20 hours rather than the 12 hours used by Comcare in the decision under review. Additionally, the Tribunal ordered Comcare, pursuant to s 67(8) of the SRC Act, to pay the costs of the proceedings before it incurred by Ms Nicolas.

4    By notice of appeal dated and filed 1 May 2014, Comcare appealed from the whole of the Tribunal’s decision. The appeal is grounded on a number of grounds which are said to raise questions of law including failure to make findings of fact under relevant provisions of the SRC Act; asking the wrong questions in applying those provisions; failing to have regard to relevant considerations and drawing a conclusion in relation to the application of another provision of the SRC Act where there was no evidence to support that conclusion. This short recitation is not intended to reflect on the merit or otherwise of the grounds of appeal, let alone the competency of the appeal having regard to the questions of law said to be raised by those grounds.

Relevant Statutory Context to Application for a Stay

5    Section 44A of the AAT Act provides:

44A    Operation and implementation of a decision that is subject to an appeal

Appeal does not affect operation of Tribunal’s decision

(1)    Subject to this section, the institution of an appeal to the Federal Court of Australia from a decision of the Tribunal does not affect the operation of the decision or prevent the taking of action to implement the decision.

Stay orders

(2)    Where an appeal is instituted in the Federal Court of Australia from a decision of the Tribunal, that Court or a Judge of that Court may make such order or orders staying or otherwise affecting the operation or implementation of either or both of the following:

(a)     the decision of the Tribunal or a part of that decision; and

(b)    the decision to which the proceeding before the Tribunal related or a part of that decision;

as that Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal.

(Emphasis added.)

6    The discretion conferred by s 44A(2) of the AAT Act should be exercised only where special circumstances justify departure from the rule that a successful litigant is entitled to the fruits of judgment pending the appeal; for example, because the appeal, although successful, may otherwise be rendered nugatory: see Broadbent v Civil Aviation Safety Authority [1999] FCA 1871 at [5], [6]; Hartnett v Migration Agents Registration Authority [2003] FCA 998 at [4]; Theo v The Secretary, Department of Family Services [2004] FCA 1748 at [5].

7    Such special circumstances have been held to exist typically, but not exclusively, where the respondent’s financial state is such that there is no reasonable prospect of recovering the moneys paid pursuant to the judgment under appeal: Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis [2010] FCA 880 at [21].

Relevant Evidence

8    Comcare relied on the affidavit of Peter Richard Lehmann, the Senior Legal Adviser of Comcare, affirmed 20 May 2014, in support of its application for the stay.

9    Under the heading “Reasons for seeking a stay”, Mr Lehmann deposed:

7.    If the Tribunal’s decision is implemented, and the Federal Court subsequently allows the appeal such to set aside the Tribunal’s decision, [Ms Nicolas] will have a debt to [Comcare] of the excess between the amount calculated in accordance with the Tribunal's decision, and the compensation already paid. The amount of the excess is approximately $20,000. The debt will additionally include anything paid in respect of the Tribunal’s orders that [Comcare] pay [Ms Nicolas’] legal costs incurred in the Tribunal proceedings.

8.    [Ms Nicolas] may have further debt to [Comcare] in respect of [Comcare’s] legal costs of the present appeal, if so ordered by the Court.

9.    Accordingly, if the Tribunal’s decision is not stayed and the appeal is successful, [Ms Nicolas] will have a not insignificant debt to [Comcare].

10.    [Ms Nicolas] has not claimed compensation for incapacity since 2 November 2012. Accordingly, any debt is unlikely to be able to be recovered from future payments (per s 114(2) of the SRC Act).

11.    If the debt is unable to be recovered, the effect of the appeal will be nullified.

12.    There is no apparent urgency for the implementation of the Tribunal’s decision, given that:

(a)    [Ms Nicolas] has already received compensation of 12 hours per week for the relevant periods of incapacity;

(a)    [Ms Nicolas] did not seek review (or raise issue with [Comcare]) of the calculation of her incapacity entitlements until more than 18 months after the date of the first determination of those entitlements. Indeed, [Ms Nicolas] did not seek review of her weekly incapacity entitlements until after she had ceased to claim weekly incapacity compensation;

(b)    [Ms Nicolas] has already received (other) compensation for future incapacity in respect of an unrelated incident (see paragraph [32] of the Tribunal’s decision); and

(c)    [Ms Nicolas] is presently working and therefore receiving a salary.

10    In opposing the application for a stay, Ms Nicolas did not rely on any evidence. Her case was put by way of submission only. I do not find that surprising: Comcare, as the applicant for the stay, had the onus to establish that special circumstance existed to warrant the stay.

Consideration

11    My attention was drawn to the provisions of s 114(1) of the SRC Act by Mr Lehmann, on behalf of Comcare, which relevantly provides:

(1)    … if:

(a)    …

(b)    an amount of compensation that has been paid to a person under this Act should not have been paid; …

(c)    …

the amount concerned is recoverable by the relevant authority from the person in a court of competent jurisdiction as a debt due to the relevant authority.

12    Clearly, if Comcare’s appeal succeeds then, to the extent of that success, there will be no legal impediment to Comcare recovering from Ms Nicolas any overpayment made to her in giving effect to the Tribunal’s decision.

13    In this regard, the circumstances here have an affinity with those which came before French J (as his Honour then was) in Australian Trade Commission v W A Meat Exports Pty Ltd [1987] FCA 413 where his Honour refused a stay under s 44A of the AAT Act, and stand in contrast to the circumstances considered in Re Repatriation Commission and Delkou (1985) 8 ALD 454 at [24], [25]; and Federal Commissioner of Taxation v Myer Emporium Ltd (No. 1) (1986) 160 CLR 220, in particular at 224 per Dawson J.

14    There is no evidence to suggest that Ms Nicolas is impecunious and, to the extent that Comcare is successful on appeal, will not be able to pay to Comcare the excess of any amount she receives from Comcare in giving effect to the Tribunal’s decision. To the contrary, it is common ground that Ms Nicolas is still gainfully employed by Centrelink.

15    Nor is there any evidence that Ms Nicolas has debts or other liabilities which will immediately consume whatever is paid to her in order to give effect to the Tribunal’s decision.

16    Furthermore, there is no evidence to suggest that Ms Nicholas has indicated that, to the extent Comcare’s appeal is successful, she will not pay to Comcare the excess of the amount paid to her to give effect to the Tribunal’s decision.

17    The most that is put against her is that if the Tribunal’s decision is not stayed and the appeal is successful, Ms Nicolas will have a not insignificant debt to Comcare (para 9 of Mr Lehmann’s affidavit of 20 May 2014).

Conclusion

18    The discretion conferred on me by s 44A(2) of the AAT Act to order a stay is conferred in terms that I consider the making of such an order “appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal”. In the circumstances outlined above, I do not think it is appropriate to make such an order and the application must therefore be dismissed with costs.

Associate:

Dated:    19 June 2014