1. Mr Size referred to the decision of this Tribunal in Howell v Return to Work Corporation of South Australia & Victoria Hotel Port MacDonell (Howell)[2]. He submitted that the Corporation is yet to make a decision as to whether or not charges should be laid against him for a contravention of s 196 of the RTW Act. It was submitted that if he were now required to provide his comprehensive affidavit of evidence then he would be required to address, in detail, any employment undertaken by him since the claimed first day of incapacity, and he may inadvertently incriminate himself. Reference was made to the privilege against self-incrimination. Pursuant to leave granted on 6 November 2025 for Mr Size to file and serve an affidavit, Mr Size expressly invoked a right to silence and the privilege against self-incrimination in an affidavit affirmed on 7 November 2025.

1. The Stamford Plaza submitted that Mr Size is already clearly on notice as to why it is contended that he has dishonestly made a claim for compensation. Firstly, reference was made to the claim for ongoing weekly payments from the claimed first day of incapacity. Secondly, Stamford Plaza has asserted that since the first day of incapacity Mr Size has presented certificates of incapacity which are inconsistent with work that he has undertaken at the Colley Hotel. Thirdly, Mr Size has already acknowledged in his Statement of Facts, Issues and Contentions that he has performed work at the Colley Hotel. Fourthly, that work is in conflict with histories recorded in medical reports and a statement made in an interview with an investigator that Mr Size would not be able to return to work in the industry.
2. The Stamford Plaza submitted that the circumstances are not such that the Tribunal should deviate from the obligation to hear and determine claims for compensation expeditiously. Mr Coppola, for the Stamford Plaza, submitted that the right to have a claim heard and determined expeditiously is a right of the employer as much as the worker in disputed proceedings before the Tribunal.
3. Whilst the Stamford Plaza submitted that Mr Size had not expressly invoked himself the right to silence or the privilege against self-incrimination, as noted in paragraph 10, that was addressed in Mr Size's subsequent affidavit affirmed on 7 November 2025.

1. The Corporation neither consented to nor opposed the application. It was clear enough from the Corporation's submissions that although it has provided a brief to the Crown Solicitor's Office, there remains the possibility of advice being provided that may involve further investigation. It remains unclear as to when the Corporation expects to inform Mr Size whether there will be a prosecution.

196 - Dishonesty

(1) A person who -

(a) obtains by dishonest means a payment or other benefit under this Act; or

(b) dishonestly claims to be entitled to a payment or other benefit under this Act; or

(c) dishonestly makes a statement about a claim under this Act knowing the statement is false or misleading; or

(d) dishonestly makes an application, or gives a return, under this Act knowing the application or return to be false or misleading,

is guilty of an offence.

Maximum penalty: $50 000 or imprisonment for 2 years.

(2) A person who -

(a) aids, abets, counsels or procures the commission of an offence against subsection (1); or

(b) solicits or incites the commission of any such offence,

is guilty of an offence.

Maximum penalty: $10 000 or imprisonment for 1 year.

(3) If a court convicts a person of an offence against this section, or finds a person guilty of such an offence without recording a conviction, the court must, on application by the Corporation or a self-insured employer, order the person who committed the offence -

(a) to make good any loss to the applicant resulting from the commission of the offence; and

(b) to reimburse costs incurred by the applicant in investigating and prosecuting the offence.

1. The position of the Stamford Plaza is that Mr Size has claimed weekly payments, on the basis of being unfit for work in the hospitality industry during a period that he has worked at the Colley Hotel and he has been remunerated for that work. On that basis, it is asserted that Mr Size has acted fraudulently. It seems likely the Corporation has been investigating possible contraventions of s 196(1)(a), (b), and (c) of the RTW Act.
2. There are currently no charges laid against Mr Size, but he has expressed a concern, through his counsel, that charges may be laid.
3. The relevant legal principles to be applied have been addressed in decisions of this Tribunal in Skidmore v Return to Work Corporation of South Australia (Skidmore),[3] and Howell.
4. The principles may be summarised as follows:
   1. At common law, no one is bound to answer any question or to produce any document if the answer or the document would have a tendency to expose that person either to the imposition of a civil penalty or liable to a conviction for a crime.[4]
   2. The privilege against self-incrimination, where it would otherwise have application, will be applied by a court unless the court is addressing a statute which has abrogated the privilege.[5]
   3. The privilege against self-incrimination is a fundamental right which will not be abrogated by statute unless such legislative intent clearly emerges by express words or necessary implication.[6]
   4. Whether a stay of civil proceedings or a lengthy adjournment should be ordered involves an exercise of discretion.[7]
   5. The exercise of discretion will involve a consideration of eight factors identified by Stanley J in Eunice Daphne Washington (by her litigation guardian Edward Mitchell Byrt) v Titan Fan Products Australia Ltd & Ors.) (Washington)[8].
5. The submissions of the parties had regard to the eight factors identified by Stanley J in Washington:
   1. Courts have the power to control their proceedings and to order a stay in an appropriate case. It will be appropriate to do so where the interests of justice require such an order.
   2. A plaintiff is prima facie entitled to have civil proceedings tried in the ordinary course. Accordingly, a stay requires justification on proper grounds.
   3. The burden of demonstrating the existence of proper grounds for a stay is on the applicant.
   4. A court will not grant a stay of a civil proceeding merely because related charges have been brought against an accused and criminal proceedings are pending. A stay of proceedings may be warranted if it is apparent that the accused is at risk of prejudice in the conduct of his or her defence in a criminal trial.
   5. The risk of prejudice must be real, and in considering what the interests of justice require, that risk is to be weighed against the prejudice that a stay of the civil proceedings would occasion.
   6. Prejudice to the accused's right to silence or privilege against self-incrimination is a relevant and important factor in the exercise of the discretion. Some cases place this as the paramount consideration in the assessment of whether to grant a stay.
   7. It may not be necessary for the applicant seeking the stay to state the specific matters of prejudice before a stay could be contemplated. As the High Court said in Zhao:

To require the second respondent to do so would be to make the risk of prejudice a reality by requiring him to reveal information about his defence, the very situation which an order for a stay seeks to avoid.

1. It is not necessary for the applicant for the stay to have been charged with a criminal offence. The real risk of prejudice or injustice can relate to an actual or potential criminal proceeding. It is sufficient that a criminal charge or charges is or are 'on the cards'. The expression 'on the cards' has been interpreted to mean reasonably possible or a reasonable possibility. Where allegations in a civil proceeding are of a serious nature and magnitude, the pleading alone may be sufficient to establish that there is a real risk of criminal prosecution should the matters alleged be proven. [citations and authorities referred to omitted][9]

1. Factor 2 was emphasised by the Stamford Plaza as also having application to other parties and it submitted that factor 3 is also relevant. I accept that where there are proceedings in the Tribunal, each party to the proceedings may expect that the Tribunal will act in accordance with the main objectives set out in s 8 of the South Australian Employment Tribunal Act 2014. Sub-section 8(c) provides that the Tribunal is to ensure that applications are processed and resolved as quickly as possible while achieving a just outcome. These factors are not absolute. Stanley J referred to factor 2 being the prima facie position. Sub-section 8(c) requires the Tribunal to achieve a just outcome between the parties.
2. The burden remains upon Mr Size to persuade the Court that the order sought should be made. I am satisfied that the risk of prejudice in this case is real. The certifications of incapacity varied between doctors and over time. The detail of the work activity undertaken by Mr Size at the Colley Hotel is referred to in a general way in his Statement of Facts, Issues and Contentions. Paragraph 15 states:

The applicant made limited attempts at casual work elsewhere (Colley Hotel) which were short-lived and consistent with partial capacity as certified.

1. There is no detail of the amount of hours worked, when it was worked, whether remuneration was received, and, if so, what was received by way of remuneration, and which medical certificates are being referred to. There is a risk that if Mr Size provides a comprehensive affidavit of evidence which addresses in detail the work activity performed at the Colley Hotel and he then be required to be available for cross-examination as to the content of that affidavit, that he may disclose information that could be material to the decision as to whether there should be a criminal prosecution of him. There is a risk of either directly or indirectly incriminating himself or making a disclosure which may lead to incrimination.
2. As noted by Stanley J in Washington, an accused's right to silence or privilege against self-incrimination is a relevant and important factor in the exercise of the discretion.
3. The Stamford Plaza has confidently asserted that Mr Size has engaged in fraudulent conduct. The Corporation has completed a brief and has forwarded it to the Crown Solicitor's Office. I am persuaded that, relevantly, there are potential criminal proceedings and that a criminal charge or charges is or are "on the cards". That is, there is a reasonable possibility of such charges being laid against Mr Size.
4. I accept that there is some prejudice to the Stamford Plaza presenting its case at trial if there is to be a stay of proceeding order or otherwise a lengthy adjournment before further directions are made to have the matter ready for trial. There are a number of topics that will need to be addressed by witnesses at trial where there is significant disputation as to what occurred. Memory fades with time, and delay is likely to affect the ability of witnesses to recall events that happened many months earlier. Whilst that would also apply to Mr Size, the prejudice may be greater for the Stamford Plaza for at least two reasons. Firstly, it is likely to call multiple witnesses, and, secondly, the proceeding provides a reason for Mr Size to regularly reflect upon and recall the relevant events in dispute. That is less likely to be so in relation to the witnesses to be relied upon by the Stamford Plaza.
5. Having considered the factors for and against the making of the orders sought by Mr Size, I have concluded that an order should be made for a longer than usual adjournment to a directions hearing and to then review whether there should be a further significant adjournment, before Mr Size is required to file and serve his affidavit of evidence.
6. As a party to the proceedings, the Corporation is under an obligation to act in accordance with r 4(1) and (3), r 5(1)(f), (g), and (j), and r 5(2) of the South Australian Employment Tribunal Rules 2024. They provide:

4. Overriding purpose and application of the Rules and identification of interest

(1) The overriding purpose of the Rules, as they apply to proceedings in the Tribunal, is to facilitate the objectives of the Tribunal, and, in particular, to achieve the just, quick and cost-effective resolution of the real issues in proceedings.

(3) A party to a proceeding is under a duty to assist the Tribunal to achieve the overriding purpose of the Rules, to participate in the processes of the Tribunal in a constructive manner and to comply with directions and orders of the Tribunal.

1. Overarching obligations, cost effectiveness and proportionality

(1) A party or a person appearing before the Tribunal must, in relation to a proceeding:

(f) cooperate with the other parties and with the Tribunal in relation to the conduct of the proceeding;

(g) use reasonable endeavours to resolve or narrow the scope of a disputed issue in the proceeding by agreement;

(j) use reasonable endeavours to act promptly and minimise delay.

(2) Tribunal proceedings must be conducted efficiently, cost-effectively and by having regard to proportionality as defined in rule 6.

1. It follows that the Corporation, as a party to the proceeding, is under an obligation to determine and advise Mr Size whether there will be a prosecution as soon as is possible. This is accentuated by the Corporation not being an ordinary party to a proceeding. It is also the regulator of the scheme and discharges statutory functions so that it cannot determine matters, either in time or in substance, solely by reference to what may be in its own interests.[10]
2. The substantive proceeding will be adjourned to a directions hearing on 30 January 2026 at 9:30am.

[2] [2025] SAET 62

[3] [2021] SAET 74.

[8] [2020] SASC 230.

[10] See, for example, Robbins v Harbord and General Motors - Holden's Automotive Pty Ltd [1994] SASC 5095; (1994) 62 SASR 229, 236-237.