Australian Postal Corporation v Mowbray

4.2 Claim 2: right wrist, hand, fingers and shoulder

• Household help/ironing 3.5 hours per week
• GP consultations (paid under claim 1)
• Pharmaceuticals - narcotics, analgesics, antidepressants, muscle relaxants (paid under claim 1)
• Orthopaedic specialist review
• Physiotherapy once per week.

4.3 Claim 3: aggravation of supraspinatus left shoulder and aggravation of neck sprain

• GP consultations (paid under claim 1)
• Pharmaceuticals (paid under claim 1)
• Orthopaedic specialist review (paid under claim 2).

1. It was contended on behalf of the Applicant that the following factors mitigate in favour of the granting of a stay:
   • (i) in the absence of a stay of the reviewable decision, the Applicant's health will be adversely affected. Put shortly, the denial of the stay (and thus, the resulting treatment) will:
     • (a) result in the deterioration of her unspecified disc disorder, cervical condition. This, contends the Applicant, would arise from denial of physiotherapy, pain relief medication, remedial massage and diagnostic treatments that would otherwise be available to her;
     • (b) in turn, result in the deterioration of her severe major depression disorder because the physical pain upon which the mental health symptoms are apparently based would not be remediated as a result of denial of the abovementioned treatments. According to the Applicant, the denial of the claimed treatments would worsen her mental health symptoms leading to an increased risk of suicidal ideation. It was urged upon the Tribunal that "In the absence of an order staying the Respondent's decision, that deterioration is likely to continue with a risk of irremediable consequences."[3]
   • (ii) in the absence of a stay, the Applicant will be disadvantaged in preparing and presenting her case upon the hearing of the substantive application. As I understood it, the essence of this contention is that if her mental health symptoms are caused to deteriorate as a result of a stay not being granted, there would be "profound decompensation in her condition"[4] and she will not have sufficient cognitive capacity to properly instruct legal representatives who may represent her during that substantive hearing;
   • (iii) there is, apparently, no prejudice to the Respondent by granting the stay because:
     • (a) the Respondent can recover those overpayments as a debt(s); and then
     • (b) the Respondent can write off or waive that debt(s).
   • (iv) the Applicant's merits or prospects of success in the substantive application are "good"[5] and are a relevant factor notwithstanding:
     • (a) such an assessment - at this interlocutory stage - would amount to a "preliminary trial of the issues that will ultimately have to be considered by the Tribunal"[6];
     • (b) an assessment of the merits or prospects of the substantive claim cannot be properly made because the nature of the Tribunal's decision-making task involves it addressing the question of whether it is positively satisfied that compensation payments - which are the subject of the substantive proceeding - should cease.
     • (c) there are certain flaws in the Respondent's decision-making process arising from:
       1. the delegate not addressing the correct statutory question;
       2. the delegate failing to properly deal with the medical evidence.

1. It was contended on behalf of the Respondent, that the factors most relevant to the Tribunal's consideration are as follows:
   • (i) were the Tribunal to grant the requested stay, it would be acting beyond the power conferred upon it pursuant to section 41(2) of the AAT Act because the effective outcome of the stay would be to bind the Respondent to pay the Applicant compensation into the future, pursuant to sections 16, 19 and 29 of the SRC Act, without an appropriately conducted review of the merits of those discrete claims;
   • (ii) the Applicant cannot demonstrate true financial hardship or prejudice as a result of the practical effect of the reviewable decision. The Respondent's further contention in this regard is that the Applicant continues to receive compensation for her other accepted conditions;
   • (iii) any assessment of the merits of the substantive application should, at most, be of neutral impact or merely a factor to be weighed in favour of denying this application. This is because, contends the Respondent, it has real prospects of successfully defending the reviewable decision.

1. The discretion to grant a stay is not predicated upon the relief of an Applicant's hardship alone. As stated in Clement and Comcare [2006] AATA 705, the discretion to grant a stay "...is for the purpose of securing the effectiveness (and processes) of the hearing and the review that is on foot."[7]
2. It was brought to my attention that the power conferred by section 41(2) of the AAT Act is not without limits. I was referred to the authorities of Alexander and Migration Agents Registration Board (1995) 40 ALD 99 and Seymour and Migration Agents Registration Authority [2006] AATA 369. In those authorities, the Tribunal made it clear that the purpose of a stay is not to place the Applicant in a position that they would not otherwise have been. Rather, contends the Respondent, the power is intended to preserve the status quo prior to the reviewable decision.[8]

Is it desirable and appropriate to exercise the discretion?

1. To paraphrase the provisions of section 41(2) of the AAT Act, the answer to this question is predicated upon the necessity of the Tribunal securing the effectiveness of the hearing and determination of the application for review.
2. It is clear to me from the contention put by the Respondent (which I accept) that in exercising the discretion to grant a stay, the Tribunal cannot cause the Respondent to be bound with respect to any future application for compensation. For practical purposes, this means any exercise of the discretion to grant a stay cannot result in an order compelling the Respondent to pay compensation for future medical expenses, incapacity payments and household services until there is a positive determination of the substantive application.[9]
3. By way of comparative example, one can see this matter being parallel to a matter involving the disability support pension ("DSP"). If an applicant had previously been receiving the DSP and, upon review, that entitlement had been cancelled, this Tribunal would be in a position to consider ordering a stay to maintain the 'status quo' until final determination of any application contesting the cancellation. The 'status quo' would involve maintaining the DSP payments received prior to cancellation. Conversely, if the aforementioned DSP matter involved the original application for DSP which had been rejected, there would be no grounds for this Tribunal to order a stay. Why? Because there had never been any duly made decision for the payment of DSP. Thus, the restoration of any 'status quo' by way of a stay order could not contemplate or compel the resumption of any DSP payments. The present matter, in which a stay is now agitated by the Applicant, is akin to a DSP rejection scenario. There was never an entitlement to payments that has been cancelled and that could now be subject to a stay order.
4. The present substantive application before the Tribunal - by virtue of the findings contained in the reviewable decision - relates to the Applicant's claimed entitlement to medical treatment, incapacity payments and household services as those items exclusively relate to her unspecified disc disorder, cervical, also known as C5/6 disc prolapse. Therefore, any exercise of the discretion to stay the reviewable decision can only result in a stay of the status quo that existed prior to the reviewable decision. There has never been any accepted ongoing liability for these particular payments. Therefore the 'status quo' has never involved ongoing payments.
5. The Respondent, to my mind, makes the valid contention (which I accept) that without the previous acceptance of liability, there is effectively nothing to be stayed. The decision under review in this substantive application, relates to the denial of ongoing compensatory payments for medical expenses, incapacity payments and household services under sections 16, 19 and 29 of the SRC Act, in relation to the Applicant's unspecified disc disorder, cervical (C5/6 disc prolapse). Any contemplated stay cannot result in the making of any fresh payments to the Applicant for that condition as it would exceed the power of the Tribunal in section 41(2) of the AAT Act.
6. A cursory perusal of the Request for Stay Order demonstrates how, in my view, the Applicant has misconceived the purpose of the stay she seeks. She is seeking "An Order requiring COMCARE staying the decision of 19/09/2016 and to continue medical expenses, incapacity payments and household services for unspecified disc disorder, cervical until the review application is completed by the AAT."
7. The misconception is apparent from the words "... and to continue...". As outlined earlier, the practical and operative effect of a stay cannot result in the making of those payments because there is no underlying determination or finding that the Applicant has or had any ongoing entitlement for her C5/6 disc prolapse condition.
8. The Applicant contends that the scope of the Tribunal's power to stay does extend to a resumption of the relevant payments because of evidence that such an order is required for the purpose of securing the effectiveness of the hearing and determination of the substantive application for review. This contention is essentially based on the premise that denial of certain treatments to the Applicant will adversely impact upon her capacity to cogently and competently instruct her representatives in the hearing of the substantive claim.
9. I have misgivings about that contention. I have had regard to the Applicant's claimed circumstances resulting from any cessation of liability for payments for physiotherapy, pain relief medication, remedial massage and diagnostic treatment and how a denial of those treatments would somehow render her incapable of conducting the hearing of the substantive application. I have difficulty in establishing a convincing nexus between these asserted "circumstances" and an incapacity to properly inform or conduct any hearing of the substantive application. The trend of the medical evidence relating to these asserted "circumstances" is that the treatments have had (as one would expect) a remedial or moderating effect on her symptoms or side effects of her condition. I am not convinced that the absence of compensation for those treatments would effectively preclude or obliterate her capacity to cogently and otherwise adequately inform or conduct the substantive hearing.
10. I also think this contention of the Applicant is of limited value because I am not convinced that refusal of a stay order would render the substantive proceedings abortive or nugatory.
11. With reference to the elements of desirability and appropriateness required by section 41(2) of the AAT Act, I do not consider the making of a stay to be of fundamental moment to the interests of the Applicant in the determination of the substantive application. She plainly has standing to bring a fresh claim for compensation pursuant to sections 16, 19 and 29 of the SRC Act which can be considered afresh and on its merits. Any stay granted in this matter does not interfere with that right.
12. I therefore consider it is not desirable or appropriate for the purpose of securing the effectiveness of the hearing and determination of the substantive application that the Tribunal ought exercise its discretion to grant a stay of the reviewable decision.

Is there demonstrable prejudice? Will the refusal of a stay occasion financial hardship to the Applicant? Will the grant of a stay prejudice the Respondent via an inability to recover overpayments?

1. I am not convinced that refusal of a stay would cause financial hardship for the Applicant. She is in receipt of similar compensatory payments for other conditions. It appears the Respondent has paid something in the order of $11,000 in the form of such compensatory payments to the Applicant. The Respondent has contended (validly, to my mind) that the Applicant has demonstrated a capacity to conduct a separate application in this jurisdiction - along substantially the same lines - without the grant of any stay of the reviewable decision in that matter.
2. As also mentioned earlier, the Applicant contends, in almost dismissive terms, that little or no prejudice would be occasioned to the Respondent by the grant of any stay simply because the Respondent has a statutory power to recover any overpayments and, on a worst case scenario, to subsequently write off and/or waive those debts pursuant to section 114 of the SRC Act.
3. The corollary of this contention - in circumstances where the Respondent refuses to write off or waive the debt - is surely that the Applicant must have the financial capacity to repay any such statutory debt. This submission, to my mind, is at odds with the Applicant's assertion of financial hardship in the event a stay is not granted.
4. My view is that any asserted prejudice to the Applicant in the form of financial hardship is to be equally weighed with the likely prejudice to be visited upon the Respondent were an overpayment realised and then sought to be recovered from the Applicant.
5. I have had regard to the Applicant's "Outline of Financial Evidence".[10] It speaks of the Applicant having a gross salary of almost $2,000 per fortnight with a net salary of $1,600 per fortnight. Her husband owns and operates a plumbing business but at the same time receives a veteran's pension in the sum of $485 per fortnight. As is the case with most family operated small businesses, the Applicant and her husband have invested money into the establishment of the business. She and her husband own their home unit, initially purchased for $278,000 but she contends that market conditions in Townsville have apparently caused its value to drop by almost a third to $200,000. She describes her domestic financial circumstances as "incredibly tight", also saying she must exercise due caution with the family budget with "little to no discretionary income." She asserts her "current financial and health situation is not sustainable".
6. On balance, I do not consider the Applicant's financial circumstances to be so straitened such as to render her immediately vulnerable to financial hardship were a stay to be refused. Economic conditions for small business are, no doubt, difficult. There is, however, persuasive authority to the effect that financial hardship alone is not sufficient for the grant of any stay. A stay order is not intended solely to relieve financial hardship or distress even in circumstances where the substantive application is not deemed by the Tribunal to be a "hopeless case".[11] Rather, the exercise requires a decision-maker to balance the interests of both parties, and to not singularly orientate the consideration behind the granting of a stay on the basis of the requesting party's financial circumstances.[12]
7. I therefore consider that the Applicant's asserted financial hardship does not constitute a sufficiently convincing reason to grant a stay. I agree with the Respondent's contention that prejudice would be occasioned to it in circumstances where the Applicant does not have a financial capacity to repay any overpayment or debt.

Merits / Prospects of success - substantive application

1. It seems to be common ground between the parties that the role of the Tribunal in exercising any discretion to grant a stay is not to conduct a preliminary hearing of the substantive matter.
2. The Applicant directed me to Avtex Air Services Pty Ltd and Civil Aviation Safety Authority [2010] AATA 716 where the Tribunal said "...the Tribunal's task is not to conduct a mini trial. It needs to examine the factual material before it and the relevant law, and arrive at a conclusion that the applicant could succeed if the stated facts were proved to the relevant level of satisfaction."[13] It is contended on behalf of the Applicant that she has "...good prospects of success."[14]
3. The Respondent directed me to Secretary, Department of Employment and Workplace Relations and Anastasiadis [2007] AATA 1065 where it was noted that it is not the function of the Tribunal to conduct a preliminary hearing of a substantive matter when determining whether a stay should be granted. Rather, the exercise involves an assessment of whether the Applicant can point to (1) facts and circumstances or (2) points of law which, if established at the substantive hearing, would provide a basis for the Applicant's success at that substantive hearing. The Respondent contends it has "...real prospects of successfully defending the reviewable decision in the substantive proceeding."[15]
4. In my view, on the state of the material before me, equal weight can be attributed to the respective prospects of the parties in the substantive application. I agree with the contention that the merits of the substantive application is a neutral factor in determining whether a stay order should be made.

1. I take note of the Tribunal's comments in Roy Frederick Griffiths, Grif-Air Helicopters Pty Ltd and Civil Aviation Authority [1993] AATA 274 that the word desirable in section 41 of the AAT Act implies a positive aspiration and something more than merely advisable.[16]
2. Taking into account my abovementioned comments (1) that I am not convinced the refusal of a stay order would render the substantive proceedings abortive or nugatory; (2) that I am not convinced refusal of a stay order would cause financial hardship for the Applicant and (3) that the merits / prospects of success of the parties in the substantive application is a neutral factor in any determination of the making of a stay order - I do not consider a stay order is appropriate for the purpose of securing the effectiveness of the hearing and determination of the substantive application.

1. The application to stay the implementation of the decision under review dated 19 September 2016 (affirming a determination dated 17 August 2016) is refused.

I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

[1] Secretary, Department of Social Services and McNamara [2016] AATA 189 per SM Walsh.

[2] Exhibit 7, Respondent's Outline of Submissions, pp 1-2, at [4].

[3] Exhibit 1, Applicant's Outline of Submissions, p 6, at [18].

[5] See Exhibit 1, Applicant's Outline of Submissions, p 9 at [29].

[6] Ibid, p 7, at [24], citing Davies J in Dart and Director-General of Social Services [1982] AATA 78.

[7] See Clement and Comcare [2006] AATA 705 at [14].

[8] Exhibit 7, Respondent's Outline of Submissions, p 5, at [14].

[9] Exhibit 7, Respondent's Outline of Submissions, p 5, at [16], citing cases of Australian Postal Corporation v Mowbray [2003] FCA 1258; (2003) 77 ALD 440; Australian Postal Corporation v Oudyn [2003] FCA 318; (2003) 73 ALD 659; Plumb v Comcare [1992] FCA 595; (1992) 39 FCR 236.

[10] Exhibit 2, Outline of Financial Evidence of Kym Blackwell dated 27 February 2017.

[11] Warnock and Comcare [2009] AATA 20 per Senior Member McCabe at [10].

[12] Clement and Comcare [2006] AATA 705 per Member Webb at [18].

[13] See Avtex Air Services Pty Ltd and Civil Aviation Safety Authority [2010] AATA 716 per Senior Member Fice at [24].

[14] Exhibit 1, Applicant's Outline of Submissions, para. 29.

[15] Exhibit 7, Respondent's Submissions, para 33.

[16] Cited in Zoric and Australian Postal Corporation [2013] AATA 594 at [11] (Senior Member Friedman).