Arnott's Biscuits Limited v Anderson [2001] SAWCT 49

3 On 23 August 2000 the employer obtained a medical report from Professor Bauze which apparently cast doubt as to whether the disability that the worker had in his left hip arose in compensable circumstances.

4 In light of this report the employer made a re-determination rejecting the worker's claim on the basis that "the re-determination is appropriate by reason of new information that was not available and could not reasonably been discovered by due inquiry at the time that the original determination was made": s 53(7a)(c).

5 The worker filed a Notice of Dispute challenging the re-determination and the matter progressed through the dispute resolution process provided for by the Act, culminating in a hearing before the learned Deputy President. It was resolved to deal as a preliminary point whether s 53(7a)(c) could be used in the circumstances of this case. That argument proceeded on the basis of affidavit material that was placed before the learned Deputy President and he ultimately made the order set out at the outset of these reasons and further ordered that weekly and other payments recommence forthwith.

6 The employer has appealed His Honour's order to this Full Bench. The appeal is confined to a question of law: s 86(1).

7 In support of its application for a stay of execution, the employer relies upon an affidavit of its solicitors which deposes to the fact that the worker is in dire financial circumstances and asserts that if the appeal is successful, the employer might encounter some difficulty in recovering the payments made pursuant to the Deputy President's orders.

8 The worker opposes the application on the grounds that the appeal is without merit, that the dire financial circumstances that the worker finds himself in are entirely of the employer's making by its inappropriate stoppage of his weekly payments of income maintenance, and that no proper grounds have been put before the Full Bench that establish why the worker having succeeded before the learned Deputy President ought be deprived of the opportunity to enforce the order made in his favour.

9 The first issue that we need to concern ourselves with is whether the Full Bench of the Tribunal possesses the power to grant a stay of execution from an order of a Presidential Member of the Tribunal directing a compensating authority to pay money.

10 We are mindful that the Full Bench has previously ordered a stay in cases such as this. These have generally been by consent although there have been instances where the Full Bench has ordered a stay despite opposition, for example: HIH Winterthur Workers Compensation (SA) Ltd (Sebel Furniture Ltd) v Hickman JD34/1997. In our view that approach must be reconsidered in light of the decision of the Full Supreme Court of South Australia in Della Flora v Workers Rehabilitation and Compensation Corporation (unreported judgment S6669.1 delivered 26 May 1998).

11 The Tribunal is a creature of statute, and its powers and jurisdiction are limited to that which is conferred upon it by statute. The Tribunal does not, for example, possess the general responsibility that a superior Court of unlimited jurisdiction possesses for the administration of justice that provides such a Court with wide ranging inherent powers. See, for example: Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1 at 16 per Dawson J.

12 It does not follow that the powers of the Tribunal are limited to those powers that are expressly provided for by the Act. Although as Dawson J points out in Grassby v The Queen (supra) an adjudicating authority created by statute: "...is unable to draw upon the well of undefined powers which is available to the Supreme Court", it "...undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise".

13 Under the former dispute resolution regime provided for by the Act, there was specific power for the Workers Compensation Appeals Tribunal to grant a stay of execution against a decision of a Review Officer: s 97(8) of the Act as it then was.

14 The Act in its present form contains no such provision.

15 It is plain that the Tribunal does not possess the jurisdiction to enforce its orders in respect of the payment of money. It is notable that the failure to obey an order of the Tribunal for the payment of money is excluded from the provision declaring failure to comply with directions or orders of the Tribunal a contempt of the Tribunal: s 88A(d). The Act provides that a certified copy of the judgment or order of the Tribunal may be filed in the District Court and thereafter the judgment may be enforced as a judgment or order of the District Court: s 87 and s 87a. Thus, in a case such as this, if the employer fails to abide by the order of the learned Deputy President, to enforce the order, the worker would have to make an application to the Registrar for the issue of a certified copy of the order and thereafter file and seek enforcement of the order in the District Court.

16 Because the primary effect of the judgment of the learned Deputy President is to set aside the purported re-determination, it might be that the right that the worker has to receive weekly payments thereafter results from the original determination that was made in his favour. It might be that as a consequence of this, that right would have to be enforced by the issue of proceedings in the nature of judicial review in the Supreme Court of South Australia.

17 Be that as it may, there clearly are remedies available to the worker to seek enforcement of the order and the consequences of the order made by the learned Deputy President other than in this Tribunal.

18 This then begs the question as to why, absent an express power granting the Full Bench the power to grant a stay of execution, it should be implied that the Full Bench possesses such a power.

19 In Della Flora v Workers Rehabilitation and Compensation Corporation Doyle CJ (with whom the other members of the court agreed) stated:-

"I assume that the District Court could stay the enforcement of a Tribunal order, filed in that Court, but subject to appeal."

20 If the worker issued proceedings in the Supreme Court to enforce the original determination, undoubtedly that Court could, in its discretion decline to grant that relief if it was satisfied that it was in the circumstances the appropriate course to take.

21 Our jurisdiction, sitting as a Full Bench, is limited to correcting or confirming the decision under appeal or stating a case on a question of law for the opinion of the Supreme Court.

22 It goes without saying that we possess such powers as are necessary to facilitate the efficient and expeditious hearing and determination of such appeals and, where appropriate, that we can prevent abuses of process. There might be some orders made that are the subject of an appeal to the Full Bench that warrant the granting of a stay by the Full Bench pending determination of the appeal. It is not necessary for us to decide whether there is an implied power in the Full Bench to grant such a stay in such circumstances. It might be that the appropriate course in such a case would be for the appellant to make an application to the Member whose decision is the subject of the appeal and to seek from him or her an amendment of the order so that it does not take effect until after the appeal has been determined. What we do decide is that there is no reason to imply that the Full Bench has the power to prevent a successful litigant from taking action in another Court to enforce a judgment or order in his or her favour for the payment of money. If there is good reason why the successful party ought not be entitled to enforce such a judgment or order no doubt that other Court will grant a stay or decline to grant the party the relief that he or she seeks, as the case may be.

23 For these reasons the application for a stay of execution of the order of the learned Deputy President was refused.