Workers compensation - Application for interim order - Weekly payments of compensation - Whether the usual approach of the Tribunal should be followed - What are the interests of justice

Workers Rehabilitation and Compensation Act 1988

C & S Insulation Services Pty Limited v John Clive Copley [1997] ACTSC 2;

Virgin Enterprises Ltd v Virgin Star Pty Ltd [2005] FCA 1846;

C v Linx Cargo Care Group Holdings Pty Ltd T/As C3 Australia [2024] TASCAT 157;

Ritau v Commissioner of Police [2000] NSW ADT 168;

Jean Ross (a Pseudonym) v The Chief Commissioner of Police and the Chief Examiner [2014] VSCA 254;

Madafferi v The King [2023] VSCA 178;

Bi-Lo v Burns [2011] NSW WCCPD 49;

B v The State of Tasmania (Department of Education) [2009] TASWRCT 28;

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179;

Nevistic v Minister for Immigration and Ethnic Affairs [1981] FCA 41;

Intrapak Skennars Head Pty Ltd v Ballina Shire Council [2021] NSWLEC 1006;

Deputy Commissioner of Taxation v Shi [2021] HCA 22;

Walker v J & A Freeman Building Services [2006] TASSC 90;

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41;

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28;

Attorney-General (Tas) v CL [2018] TASFC 6;

Rodriguez v United States [987] USSC 36; [1987] USSC 36; 480 US 522 (1987);

Menzies v Hays Specialised Recruitment (Australia) Pty Ltd [2023] TASSC 30;

Australian Broadcasting Corporation v O'Neill [2006] HCA 46;

Douglas v Strata Corporation No 15944 [2024] TASSC 25;

Bullock v Federated Furnishing Trades Society of A/asia [No 2] [1985] FCA 19; (1985) 5 FCR 464;

Webster on behalf of Ngarigo Peoples v State of New South Wales [2024] FCA 615

The decision has been anonymised for the purpose of publication.

1. The worker suffered an injury to her left elbow in the course of her employment with the employer on 15 June 2024. The worker had been employed on a two week fixed-term contract for the duration of the Dark Mofo festival.
2. The worker made a workers compensation claim under the Workers Rehabilitation and Compensation Act 1988 (the Act), which was accepted. The compensation paid to the worker included weekly payments at the rate of $626.16.
3. From 6 - 9 February 2025 the worker was employed as a co-ordinator at the Party in the Paddock music festival. She was paid $1,273.23 for four days work.
4. As a consequence of her receiving that payment the employer terminated the worker's weekly payments of workers compensation as from 10 February 2025.
5. On 19 March 2025 the worker filed a referral pursuant to s 42 of the Act seeking reinstatement of the weekly payments of compensation.

1. The worker has filed a referral pursuant to s 60A of the Act. The referral seeks the same relief as the s 42 referral, but the matter proceeded on the basis that it was an application for an interim order for weekly payments of compensation. The order sought by the worker was that the employer pay to the worker weekly payments of compensation calculated in accordance with the Act for the period from 10 February 2025 to 31 December 2025 or until the determination of the s 42 referral or until the settlement of the worker's claim for compensation whichever occurs first.
2. The employer opposes the application.
3. Section 60A of the Act provides the following:

60A. Power of Tribunal to make interim determinations, &c. > > (1) The Tribunal may make an interim determination, ruling or direction in respect of a claim for compensation referred to it, whether or not liability for the claim has been accepted or disputed. > > (1A) The Tribunal may make an interim determination, ruling or direction in the following circumstances: > > (a) where a delay by one side of the proceedings substantially prejudices the other side; > > (b) where a party fails to comply with a direction of the Tribunal or a conciliator; > > (c) where the Tribunal is otherwise satisfied that the interests of justice require it. > > (2) Where the Tribunal makes an interim determination, ruling or direction it must make an order which gives effect to that interim determination, ruling or direction. > > (2A) The Tribunal is not to make an order under subsection (2) in respect of the provision of a medical service under Part VI unless it is satisfied that - > > (a) the service is reasonably necessary - > > (i) to prevent a deterioration in the worker's medical condition; or > > (ii) to promote an early return to work; or > > (iii) to relieve significant pain or discomfort; and > > (b) the total cost of the service will not exceed $5 000. > > (2B) It is not a requirement for the making of an interim order that the applicant might otherwise suffer serious or irreparable harm. > > (2C) In determining a rate of weekly payments for the purposes of an order under this section, the Tribunal may have regard to the basic salary if a rate cannot be reasonably determined by reference to section 69 . > > (3) An order made under subsection (2) is to specify the period for which the interim determination, ruling or direction applies.

4. Section 60A(1A) sets out circumstances in which the Tribunal may make an interim determination. The worker does not contend that the circumstances fall within (1A)(a) or (b) and relies on (1A)(c), contending that the interests of justice require the making of an interim determination and the order sought by her.

1. The approach by the Tribunal and its predecessor, the Workers Rehabilitation and Compensation Tribunal, to s 60A applications has been consistent for more than 20 years. The worker has traced that approach back to H Watt & Co v E [2024] TASWRCT 27, but observes that it likely predates that case, noting that reporting of that Tribunal's cases on AustLII only commenced in 2004.
2. The conventional approach is to determine whether there is a serious question to be tried between the parties, and if so then to determine whether the balance of convenience favours the making of an interim order.
3. That approach is based on decisions in C & S Insulation Services Pty Limited v John Clive Copley [1997] ACTSC 2 and Virgin Enterprises Ltd v Virgin Star Pty Ltd [2005] FCA 1846 and was recently summarised by Senior Member Jack in C v Linx Cargo Care Group Holdings Pty Ltd T/As C3 Australia [2024] TASCAT 157 at [9]- [14]:

9. Further, or in the alternative, the worker seeks orders pursuant to s 60A(1A)(c), on the basis that he says it is otherwise in the interests of justice that the Tribunal make an interim determination as sought. > > 10. Where applications have been made for interim orders pursuant to s 60 A (1A)(c), the Tribunal has had regard to decisions in other jurisdictions, where relief has been sought on an interim basis, notably C & S Insulation Services Pty Ltd v Copley [1997] 136 FLR 317 (Copley), and Virgin Enterprises Ltd v Virgin Star Pty Ltd [2005] FCA 1846 (Virgin Enterprises). > > 11. Accordingly, the Tribunal has approached the issue of whether interim relief ought to be granted under s 60A(1A)(c) by considering whether "there is a serious question to be tried between the parties as to whether the applicant has a good case for final relief, [and whether] the balance of convenience favours the making of the interim order": Copley at [52]. > > 12. In seeking an interim order under s 60A(1A)(c), to establish that there is a serious question to be tried, the applicant needs to satisfy the Tribunal that there is, on the issues of fact and law raised by the applicant, a reasonable prospect that final relief would be granted if those issues were found in the applicant's favour: Copley at [55]. An alternative formulation was outlined by Tamberlin J in Virgin Enterprises, where his Honour observed that the applicant must show "there is a case which can be seriously argued and which has, on its face, some substance": at [12]. > > 13. In considering the 'balance of convenience', Tamberlin J further noted: > > The two relevant questions of whether there is a serious question to be tried and whether the balance of convenience favours the grant of relief are inter-related to the extent that the strength of the case established on the interlocutory application is a material matter to take into account on a consideration of the balance of convenience. It is not, of course, conclusive of itself, however, it is a relevant consideration for the court to take into account. > > The concept of the balance of convenience involves an examination of whether the inconvenience or injury which the applicants would be likely to suffer if the injunctions were refused, outweighs or is outweighed by the injury which the respondents would suffer if the injunctions were granted...: at [13]-[14]. > > 14. Accordingly, the Tribunal must first consider, under s 60A(1A)(c) of the Act, whether the worker has established that there is a serious question to be tried between the parties. If the Tribunal is satisfied that there is a serious question to be tried, the Tribunal must then consider the balance of convenience, as between the parties. The strength of the worker's case will be relevant, but not determinative, in weighing the balance of convenience.

1. Section 60A(1A) was inserted into the Act by the Workers Rehabilitation and Compensation Amendment (Miscellaneous) Act 2004 and took effect on 17 December 2004. The worker contends that since that amendment the appropriate test is a single question of whether the interests of justice require the making of a determination and order. Therefore, considering the application according to questions of whether the worker has established that she has a serious question to be tried and whether the balance of convenience favours the making of an order would lead me into error.
2. The worker acknowledged the weight of comity and referred to the decision in Ritau v Commissioner of Police [2000] NSW ADT 168 at [63] where the judicial member considered that previous decisions of that Tribunal should be followed unless clearly wrong. The worker contends that the Tribunal has slavishly followed Copley and Virgin Enterprises and that the conventional approach is clearly wrong.
3. The worker submitted that the meaning of the phrase 'the interests of justice' "must be derived from context, both statutory and otherwise, citing Jean Ross (a Pseudonym) v The Chief Commissioner of Police and the Chief Examiner [2014] VSCA 254 at [72]. The worker also referred to Madafferi v The King [2023] VSCA 178 at [46] which applied the decision in Jean Ross. Those cases dealt with applications for the release of restricted evidence to persons charged with serious criminal offences, a different context to the matter before me, but the Court in each made the general observation that the interests of justice are those that pertain in the particular case, and are inclusive of the interests of the parties, and may broadly extend to the public and its interest in the administration of justice.
4. The worker contends that consideration of what the interests of justice require is to be evaluated in the context of the Act, which is beneficial legislation. That consideration is informed by the objectives in s 2A of the Act which provides:

2A. Objects of Act > > The objects of this Act are to establish a rehabilitation and compensation scheme for workplace injuries that - > > (a) provides for the prompt and effective management of workplace injuries in a manner that promotes and assists the return to work of injured workers as soon as possible; and > > (b) provides fair and appropriate compensation to workers and their dependants for workplace injuries; and > > (c) assists in securing the health, safety and welfare of workers and in reducing the incidence of workplace injuries; and > > (d) provides an effective and economical mechanism for resolving disputes relating to the treatment and management of, and compensation in relation to, workplace injuries; and > > (e) is efficiently and effectively administered; and > > (f) is fair, affordable, efficient and effective.

5. The worker contends that the strength of her case is relevant to the interests of justice, and that the relative merits of the case favour her. She cites Steggles Pty Ltd v Aguirre (1988) 12 SWLR 693 and Bi-Lo v Burns [2011] NSW WCCPD 49 as authority for the proposition that work undertaken for the purposes of rehabilitation should not be treated as earnings reflecting retained capacity to earn or ability to earn in the open labour market. The worker relies on a statement by the worker's physiotherapist, Megan Willing, who has expertise in pain management and rehabilitation, explaining that the worker's employment at Party in the Paddock was an aspect of her rehabilitation and graded return to work rather than employment in the job market reflecting true retained capacity. Correspondence from the worker's treating clinical psychologist, Dr Brad Mertens, to her general practitioner supports this. The worker also relied on a report by a consultant physician specialising in pain and rehabilitation medicine, A/Prof Michael Vagg, who made a diagnosis of complex regional pain syndrome of the worker's left upper limb which has partially remitted, arising from the work injury. A/Prof Vagg reported that the worker has frequent unpredictable days when her pain can be highly disabling for hours at a time.
6. The worker contends that the strength of her case, the objects of the Act, the beneficial nature of the Act, and the nature of the discrete instance of employment for rehabilitative purposes that resulted in the relevant earnings, together mean that the interests of justice favour the making of an interim order.
7. The employer contends that the conventional approach of the Tribunal, reflecting the general law in respect to the making of interim orders, is the correct approach and reflects the interests of justice.
8. The employer does not accept that the merits of the case are strongly in favour of the worker. It relies on a medico-legal report from a consultant orthopaedic surgeon, Dr Charles Allen, prepared following an independent medical examination of the worker. Dr Allen expresses an opinion that the work injury has healed and that the worker's claimed incapacity is not supported by objective clinical findings or examination. Dr Allen concludes that she has the capacity for her usual employment.
9. The employer also contends that the strength of the worker's case does not, in any event, overwhelm a consideration of balance of convenience. The employer referred to B v The State of Tasmania (Department of Education) [2009] TASWRCT 28 at [60] where the then Chief Commissioner of the Workers Rehabilitation and Compensation Tribunal observed that the existence of a serious issue to be tried is common in matters before the Tribunal, and had regard to issues of prejudice and said:

60. The making of interim awards under s60A is designed to apply to those circumstances which fall outside the ordinary nature of a contested claim before the Tribunal. Although finding the worker has established, in this case, there is a serious issue to be tried, this is not an unusual situation in a contested claim for compensation which the Tribunal deals with on a daily basis. ... The issue of prejudice to the worker in this case is not significant given her financial resources. The possible prejudice, however, to the employer may not be capable of being addressed if the worker was successful on this application but unsuccessful on her s42and/or s_87_ referral. I say this because I know of no mechanism by which the employer could recover any interim compensation paid in circumstances where the worker is ultimately found not to have an ongoing entitlement to weekly payments. I have therefore come to the view that in all the circumstances the interests of justice are best served by this matter proceeding to conciliation as soon as reasonably possible and the Tribunal providing a hearing date at the conclusion of the conciliation conference should the worker's referral not resolve which will have the effect of minimising the prejudice to all parties. ... It follows the worker's application pursuant to s60A is dismissed.

10. The employer contends that if the interests of justice are so broad as to reflect the objects of the Act, as contended by the worker, interim orders would be made in most cases.

1. I am not bound to follow the decision in C v Linx Cargo Care Group Holdings Pty Ltd T/As C3 and the preceding cases in the Tribunal and the Workers Rehabilitation and Compensation Tribunal. However, for reasons of comity a determination on a question of law made in a previous decision of the Tribunal, including interpretation of a provision of the Act, should be followed unless I am satisfied that the decision should be distinguished or is clearly wrong. As Brennan J, who was then president of the Administrative Appeals Tribunal, said in respect to an administrative review that did not involve proceedings of an adversarial nature in Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179:

Inconsistency is not merely inelegant: It brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice.

2. Deane J explained in Nevistic v Minister for Immigration and Ethnic Affairs [1981] FCA 41 that while consistency in decision making is desirable and a Tribunal is entitled to pay regard to its previous decisions, it is not bound to do so. His Honour observed that "the desire for consistency should not be permitted to submerge the ideal of justice in the individual case" and a moving party is entitled to have his or her matter decided on its own particular merits.
3. In Intrapak Skennars Head Pty Ltd v Ballina Shire Council [2021] NSWLEC 1006 at [106] the Court distinguished between an assessment of the merits of a case and a determination on a question of law, which it said should be followed by a later court or tribunal at the same level as a matter of comity unless it considers that the determination is plainly wrong.
4. The approach urged by the worker is cogent and has the merits of simplicity and of promoting the objects of the Act. However, for the reasons that follow I am not satisfied that the approach usually applied by the Tribunal is clearly or plainly wrong.
5. The worker is correct in contending that what might be required by the interests of justice will depend on the relevant legislation and context. In Deputy Commissioner of Taxation v Shi [2021] HCA 22 at [41] Gordon J observed that "what the interests of justice require in a particular case is to be weighed having regard to the proceeding in which the question arises".
6. The Act is, as submitted by the worker, beneficial legislation which ought as a general rule be given an interpretation favourable to workers: Walker v J & A Freeman Building Services [2006] TASSC 90 [71]. Section 8A of the Acts Interpretation Act 1931 requires that an interpretation that promotes the objects of the Act is to be preferred to one that does not promote those objects. However, a simple application of the Act's objectives in s 2A will not displace the usual rule that the meaning of s 60A(1A) is to be determined with regard to the text, context and purpose of the section read in the context of the surrounding provisions and the legislative scheme of the Act: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 [4] and [47] and Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 [69]. In Attorney-General (Tas) v CL [2018] TASFC 6 at [43] Porter AJ cited the decision of the Supreme Court of the United States in Rodriguez v United States [987] USSC 36; [1987] USSC 36; 480 US 522 (1987) at 525-526:

No legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice - and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute's primary objective must be the law.

If more than one meaning is reasonably open, or there is a sufficient degree of uncertainty, then the beneficial approach can be given effect to. The fact that the legislation is beneficial does not require a court to find ambiguity where there is none.

1. Section 60A gives no direct assistance in identifying how to determine the interests of justice for the purposes of the section. The second reading speech made to the House of Assembly on 19 May 2004 by the then minister in respect to the Workers Rehabilitation and Compensation Amendment Bill 2004 (No. 28), which introduced s 60(1A) and (2B) does not refer to s 60A and is of no assistance in interpreting the provision: Acts Interpretation Act 1931 s 8B(3)(f).
2. The only Supreme Court authority touching on the approach to s 60A(1A)(c) identified by the parties was Menzies v Hays Specialised Recruitment (Australia) Pty Ltd [2023] TASSC 30. In that case at [6] Blow CJ said:

6. The senior member, at [8], took the view that the tribunal was required to determine whether interim relief ought to be granted in the interests of justice by considering whether there was a serious question to be tried between the parties as to whether the worker had a good case for final relief, and whether the balance of convenience favoured the making of an interim order. She relied on two decisions relating to comparable provisions in other jurisdictions: C & S Insulation Services Pty Ltd v Copley (1997) 136 FLR 317; Virgin Enterprises Ltd v Virgin Star Pty Ltd [2005] FCA 1846, 67 IPR 557. It is common ground that her approach was correct.

3. It is apparent from that passage that the parties accepted that the traditional approach was correct. Honour did not interrogate that, or the meaning of the interests of justice, as the appeal in that case focussed largely on the appropriate rate of weekly payments. The worker contends that his Honour's observation is an obiter statement that I am not bound to follow. I accept that it is not binding, but it has some persuasive effect as the case applied s 60A(1A)(c), and his Honour was clearly alive to the provision.
4. The relief available under s 60A is in the nature of an interim order or mandatory injunction. The test described in Copley reflects the established general law principles relevant to the making of interim orders and injunctions. In Australian Broadcasting Corporation v O'Neill [2006] HCA 46 at [44]- [45] Kirby J, albeit in the minority on the ultimate question to be determined in that case, observed that the Court had established a framework of general principles for the grant of interlocutory injunctions and said:

That approach is already expressed in principles of broad application, adaptable to particular needs and circumstances. It accommodates a great variety of cases invoking vastly differing legal rules and values. In matters of basic approach, it is ordinarily undesirable to fashion "stand alone" principles.

1. In Douglas v Strata Corporation No 15944 [2024] TASSC 25 at [13] Porter AJ summarised the principles relevant to the making of interim orders and injunctions:

13. The principles to be applied in determining this application for relief are well established and understood. See Australian Broadcasting Corporation v O'Neill [2006] HCA 46, 227 CLR 57 at [19], [65]-[72], Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156, 217 FCR 238 at [52]- [74] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 at [87] and Powell v Business Expansion Capital Pty Ltd [2008] TASSC 26 at [12]- [15]. In basic summary, those principles are as follows:

• The plaintiff must establish a prima facie case (a 'serious question to be tried') in the underlying cause of action; that is, a sufficient likelihood of success at trial to justify in the circumstances the relief sought.
• Consideration of the requisite strength of the chance of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order.
• The second inquiry is whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs, or is outweighed by, the injury which the defendant would suffer if an injunction was granted. The plaintiff must be likely to suffer injury for which damages will not be an adequate remedy.
• The assessment of harm to the plaintiff if there is no injunction and the assessment of prejudice or harm to the defendant are at the heart of the discretionary considerations; the interaction between the assessment of likely harm to the plaintiff and the assessment of the adequacy of damages as a remedy will always be an important factor in the Court's determination of where the balance of convenience and justice lie.
• The question of whether there is a serious question to be tried should not be considered in isolation from the balance of convenience; they are related, not independent questions.

1. The test described in Copley includes a third element, being that serious or irreparable harm might occur to the moving party. At [52] Higgins J said:

A grant of interim relief merely affirms that there is a serious question to be tried between the parties as to whether the applicant has a good case for final relief; that the balance of convenience favours the making of the interim order; that if the interim order was not made serious or irreparable harm might be occasioned to the applicant, see Clements & Marshall Pty Ltd v Field Peas Marketing Board (Tasmania) [1947] HCA 61; (1947) 76 CLR 401; Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618; A v Hayden (No. 1) (1984) 59 ALJR 1.

1. Section 60A(2B) provides that "it is not a requirement for the making of an interim order that the applicant might otherwise suffer serious or irreparable harm". It directly addresses that third element of the test described in Copley. It may therefore be inferred that Parliament was aware of the general law in respect to the making of interim orders and the nature of the assessment applied to s 60A as it was before the introduction of (1A) and (2B) in 2004, and that it chose to remove the more stringent third element. The logical consequence of that inference is that the first two elements would continue to apply.
2. The introduction of (1A) is entirely consistent with the conventional approach if (a) and (b) are taken as specific circumstances permitting the making of an interim order and (c) encompasses the residual general power to do so that existed prior to the amendments. Following this approach, the usual test applied in the Tribunal may be taken as reflecting what might be required by the interests of justice in a particular case. That is, the balance of convenience is the practical measure of the balance of justice. Therefore, I am not satisfied that the introduction of (1A)(c) displaced the general law approach to the making of interim determinations and orders.
3. It is not possible to predict every circumstance that might give rise to a s 60A application. It might be that in particular circumstances the interests of justice require that an interim determination be made regardless of the balance of convenience, perhaps where proceedings are being conducted in a manner that unreasonably causes disadvantage the other party in circumstances not covered by (a) and (b). However, I am not satisfied that the usual approach to s 60A is wrong in law.
4. Therefore, for reasons of comity, I will follow the conventional approach to s 60A(1A)(c).

1. It was common ground that the worker has established a serious question to be tried. The issue for determination is whether the balance of convenience favours the making of an interim determination in favour of the worker.
2. The worker emphasised the strength of her case The only financial disadvantage to her disclosed on the evidence is that she was receiving $626.16 in weekly payments of compensation and is now receiving no weekly payments of compensation.
3. The strength of the worker's case may be relevant not only to the question of whether there is a serious question to be tried, but also the balance of convenience, particularly where the balance is fairly even: Douglas v Strata Corporation No 15944 at [13] and Bullock v Federated Furnishing Trades Society of A/asia [No 2] [1985] FCA 19; (1985) 5 FCR 464 per Woodward J at 472. In Webster on behalf of Ngarigo Peoples v State of New South Wales [2024] FCA 615 at [18] Raper J said:

18. The degree of the likelihood of success is a factor related to the balance of convenience: Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 at 153 per Mason ACJ. The apparent strength of the case "will often be an important consideration to be weighed in the balance": Samsung Electronics v Apple [2011] FCAFC 156; 217 FCR 238 at [67]. Accordingly, the stronger the prima facie case, the less that may be required to tip the balance of convenience and vice versa.

1. I accept that on the evidence before me and the submissions by her counsel the worker has presented an apparently strong claim, based on material from experts in pain management and rehabilitation, that her work at Party in the Paddock was part of her rehabilitation process and that it may not be treated as a true measure of her retained capacity to earn. However she did demonstrate the ability to earn, from a third party, substantially more than her normal weekly earnings, and Dr Allen's opinion is at odds with her having an entitlement to weekly payments. The evidence is untested and the outcome of the s 42 referral is not certain.
2. Applying the fourth principle identified by Porter AJ in Douglas v Strata Corporation No 15944, in assessing the harm to the worker if there is no order made and the prejudice or harm to the employer if one is made is at the heart of the issue, and the adequacy of the relief sought by the worker in the s 42 referral is an important factor in determining where the balance of convenience and justice lies. As the Chief Commissioner alluded to in B v The State of Tasmania (Department of Education) a relevant consideration is the risk of injustice to the employer in being unable to recover payments if an interim order is made in favour of a worker who fails to establish his or her right at the substantive hearing: see also Heydon J in Australian Broadcasting Corporation v O'Neill at [248]. If payments are made pursuant to an order of the Tribunal, the power to recover an overpayment under s 149 may not apply. If the worker is successful on the s 42 referral she may is likely to receive the payments that she seeks to have made pursuant to an interim order. I do note, however, that if the worker is successful in establishing her right to weekly payments and the payments are backdated to the date that they were terminated she will not be entitled to compensation for the loss of use of those payments in the interim.
3. The consideration most commonly raised in respect to balance of convenience is financial hardship to the worker. In C. v Linx Cargo Care Group Holdings Pty Ltd T/As C3 Australia Senior Member Jack said at [89]:

89. As I stated in H. v Glenhaven Family Care Inc [2022] TASCAT 107, where a worker seeks an order from the Tribunal for payments in circumstances where liability to pay compensation to the worker is disputed, the Tribunal would normally expect that the full extent of the worker's financial position is set out for the Tribunal, and that the worker has taken all possible steps that would be reasonably available to the worker to mitigate any potential financial hardship that the worker is experiencing, or is likely to experience in the immediately foreseeable future.

1. The material in evidence includes a statement by the worker. She did not give oral evidence and was not cross-examined. Her statement discloses that prior to her employment with the employer she held casual employment at two market stalls, earning approximately $600 per week, and that she supplemented her income with other casual work including festivals. She has been told that work with the two market stalls is no longer available. No explanation as to the reason for that was provided by her. She does not address her capacity to undertake that work. Her employment with the employer was for a fixed period of two weeks. She has unsuccessfully applied for two jobs in different fields. Dr Allen's report notes that she is married with one child. I have no evidence as to her financial resources other than from casual employment, or as to any financial obligations. I have no evidence as to the financial resources or obligations of her family unit. The worker has not alleged financial hardship. I have no means of assessing the worker's financial circumstances in the context of balancing convenience.

1. I am not satisfied that the strength of the worker's case and the bare loss of the weekly payments, which I observe are common circumstances in matters litigated in the Tribunal, are in the circumstances of this case, either individually or taken together sufficient to establish that the balance of convenience favours making the order sought by the worker.
2. I am therefore not satisfied that the interests of justice requires that an interim determination and order should be made in favour of the worker. Accordingly:
   1. The worker's referral made pursuant to s 60A of the Act is dismissed.