Interlocutory proceeding - Application to stay decision of respondent - Refusal to stay the implementation of the reviewable decision

Administrative Appeals Tribunal Act 1975 s 41(2)

Safety, Rehabilitation and Compensation Act 1988 s 16, 19

Delkou v Repatriation Commission (1986) 69 ALR 406

Re Commonwealth Banking Corporation and Iannello [1988] AATA 173; (1988) 15 ALD 418

Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority [1993] AATA 274; (1993) 31 ALD 380

1. On 18 March 2013 the respondent rejected Mr Zoric's claim for ongoing medical treatment and incapacity under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) in respect of a right elbow sprain (the injury). On 6 May 2013 a review officer of the respondent made a reviewable decision affirming the earlier determination to cease payments of compensation to Mr Zoric on 1 July 2013. Mr Zoric applied to the Tribunal for review of that decision and now seeks an order staying the respondent's decision to cease compensation payments.
2. Section 41(2) of the Administrative Appeals Tribunal Act 1975 (The AAT Act) provides:

The Tribunal or a presidential member may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal or presidential member is of the opinion that is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation of implementation of the decision as the Tribunal or presidential member considers appropriate for the purposes of securing the effectiveness of the hearing and determination of the application for review.

1. There are there main factors to be considered when deciding whether to stay the operation of a decision under review (see Delkou v Repatriation Commission (1986) 69 ALR 406, Re Commonwealth Banking Corporation and Iannello [1988] AATA 173; (1988) 15 ALD 418):
   • Any hardship which a party to the review may suffer by reason of the grant or refusal to grant the stay;
   • The likelihood of recovery by the respondent of moneys to be paid if the decision under review is stayed; and
   • The prospect of success of the application for review.

1. Mr Zoric told the Tribunal that if the Tribunal refuses to stay the operation of the respondent's decision his complete and sustained recovery from his shoulder condition would be unlikely. He also expressed concern that since the reviewable decision he has felt pressure from the respondent for work restrictions, recommended by his treating medical practitioners, to be lifted or he would risk having his working hours reduced. Mr Zoric also claimed to be experiencing financial hardship due to his ongoing shoulder-related medical expenses, including physiotherapy and visits to his general practitioner.
2. The respondent told the Tribunal that it is aware of its occupational health and safety responsibility to ensure a safe place of work and a safe system of work and that the Mr Zoric is being managed under a non-work related medical restrictions policy.
3. As Mr Zoric is currently working full-time, medical expenses incurred from physiotherapy treatment and visits to his general practitioner visits are unlikely to cause him financial hardship. The respondent is obliged to provide a safe working environment for Mr Zoric. The Tribunal finds that it is unlikely Mr Zoric will face hardship if the decision remains operative, so this factor weighs against granting a stay.

1. The respondent submitted that if the decision is stayed, resulting in its continuing liability for Mr Zoric's condition, it will be prejudiced in the event that the decision under review is affirmed. Mr Zoric remains in full-time employment with the respondent, and therefore may have the means to repay any moneys if the Tribunal affirms the decision under review. The Tribunal finds that this weighs neither for nor against granting a stay.

1. Mr Zoric submitted that the respondent's decision to deny liability for ongoing medical treatment and his incapacity is wrong, unjust and unreasonable and that the decision be reversed to facilitate and enable a complete recovery. Mr Zoric told the Tribunal that in making its decision the respondent had failed to accept the views of his treating doctors (Dr J Lang, and Dr Br Fountain). He also expressed his frustration with the respondent's claim that he has never had any problems, injuries...pain, discomfort or limitations to his right elbow before the work incident.
2. In its decision dated 16 May 2013 the respondent rejected Mr Zoric's claim that the effects of a workplace incident continue to contribute to his right elbow condition. The respondent denies that Mr Zoric has provided enough supporting evidence to sustain his claim that his employment relates to his ongoing condition, and claims that medical reports by Dr Fountain and Dr Lang are not sufficient to establish liability for Mr Zoric's condition. In making its decision the respondent relied on the opinion of Dr D Barton who did not consider that Mr Zoric's shoulder condition and symptoms was caused his employment with Australia Post_._
3. Mr Zoric's application may have some prospects of success, but at this stage it can be put no higher than that. The Tribunal finds that this weighs neither for nor against granting a stay.

1. In Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority [1993] AATA 274; (1993) 31 ALD 380 the Tribunal said that the word desirable in s 41 of the AAT Act implies a positive aspiration and something more than merely advisable. Taking into account the absence of hardship to Mr Zoric should the stay be refused, the consequence of Mr Zoric having to repay moneys to the respondent and the prospects of success of the substantive application, the Tribunal does not consider a stay order is appropriate or necessary to ensure the effectiveness of the substantive hearing.

1. The Tribunal refuses to stay the implementation of the reviewable decision of the respondent dated 6 May 2013.

I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the interlocutory decision of G. D. Friedman, Senior Member.

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