Warnock and Comcare

[2009] AATA 20

Administrative Appeals Tribunal

ORDER AND REASONS FOR ORDER [2009] AATA 20

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3693

GENERAL ADMINISTRATIVE DIVISION		)
Re		SHAUN WARNOCK

Applicant

And COMCARE

Respondent

ORDER

Tribunal Senior Member Bernard J McCabe

Date13 January 2009

PlaceBrisbane

Order The Tribunal refuses to grant the application for stay.

.......................[Sgd].......................

Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – Application for stay of decision – Calculation of normal weekly earnings – Stay not appropriate for purpose of securing the effectiveness of the hearing and determination of application for review – Application for stay refused

Administrative Appeals Tribunal Act 1975 (Cth) ss 41(2), 42D

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14

Re Repatriation Commission and Delkou [1985] AATA 297; (1985) 8 ALD 454

Re Labrador Liquor Wholesale Pty Ltd and CEO of Customs [2006] AATA 485; (2006) 90 ALD 761

Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164

REASONS FOR ORDER

13 January 2009 Senior Member Bernard J McCabe         

1. Mr Shaun Warnock, the applicant, is a former employee of the Australian Federal Police (“the AFP”). Comcare, the respondent, accepted liability to pay compensation in respect of a health work-related condition pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 in August 2006. Comcare subsequently determined on 5 December 2006 that the amount of compensation for incapacity should be reduced because of its view of what Mr Warnock would have earned by way of overtime if he remained at work with the AFP. The amount of overtime is relevant to calculating the amount of his normal weekly earnings.

2.      The argument about what Mr Warnock would have earned by way of overtime appears to lie at the heart of these proceedings. It is essentially a question of fact. It will be necessary for me to hear from Mr Warnock and officers from the AFP so I can form a view as to what he would have earned if he remained. That task is properly undertaken at a hearing.

3. Mr Warnock has asked for a stay of the determination dated 5 December 2006 (affirmed in the reviewable decision of 14 December 2007) to reduce his incapacity payments. He says his financial circumstances are such that he can only survive in business if he receives the money Comcare would have paid but for the decision under review. I declined to make an order pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) prior to Christmas. In oral reasons given at the time, I indicated I was concerned that Comcare would not be able to recover the money if Mr Warnock were unsuccessful. I was also satisfied that the best way forward was to bring the matter on for hearing as soon as possible. I was told there would be no difficulty in doing so. But some of the witnesses are not available. The matter will now not be ready for a hearing until early February. Mr Warnock has renewed his application for an order under s 41(2) of the AAT Act.

4.      The principles governing the exercise of the stay power have been discussed in a number of cases, including Re Repatriation Commission and Delkou [1985] AATA 297; (1985) 8 ALD 454 and Re Labrador Liquor Wholesale Pty Ltd and CEO of Customs [2006] AATA 485; (2006) 90 ALD 761. Ultimately, though, the question can only be resolved with reference to the words of s 41(2): see Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164 at [34] per North and Downes JJ. That provision says the power to make an order staying the operation or implementation of a decision is available where the Tribunal:

is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, [to] make such order or orders staying or otherwise affecting the operation or implementation of the decision ... as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.

5.      It follows I must consider the interests of the parties and perhaps the larger public interest. I turn first to consider Mr Warnock’s interests. Mr Warnock took leave from the AFP in November 2005 and left the AFP altogether some 11 months later. He decided to become a macadamia farmer. To that end, he leased a farm. He acquired plant and equipment.  He has a number of commitments that he must meet each month in order to stay in business. He described those commitments in his statement dated 9 January 2009.

6.      I accept Mr Warnock is experiencing financial difficulty and may experience prejudice if his income from Comcare is not increased. He does not make enough money from his fledgling farming operation to meet all of his financial obligations. He says the money he receives from Comcare helps him to survive until the farm becomes a going concern. If the farm is a success, he adds, he will be able to end his reliance on compensation payments. He argues that keeping alive his hopes of making the farm a success is in everybody’s interests, including the interests of Comcare.

7.      Ms Dole, for Comcare, questioned whether Mr Warnock’s statement of 9 January 2009 established that his situation was as dire as he claimed. I am satisfied his statement makes it clear that he needs additional income in order to meet his obligations. If he can get money from Comcare in the short term, so much the better for him. If he cannot meet his obligations, including his lease and mortgage payments, he will presumably have difficulty remaining in business.

8.      Mr Warnock’s financial difficulties inevitably mean he will have problems repaying any lump sum amount that he receives from Comcare in the event he is unsuccessful in his substantive application. The risk of that outcome might be reduced if a stay order applied prospectively so that Comcare was not required to pay the applicant any arrears that would be payable but for the decision under review. 

9.      Both of the parties have made claims about the public interest. Comcare says the public interest is served by ensuring that compensation payments are directed to those who are entitled to them. Mr Warnock’s argument is essentially the same, albeit that the parties disagree about the amount of the entitlement in this case.

10.     The question of whether or not a stay order is appropriate depends in part on whether the applicant has reasonable prospects of success in his substantive application. It would not be appropriate to order a stay if the applicant has a hopeless case. I am not satisfied that is the situation here. There does appear to be a factual dispute that can only be resolved by weighing up the evidence at a hearing.

11. The obstacle to making an order in this case is the requirement that the stay power be exercised “for the purpose of securing the effectiveness of the hearing and determination of the application for review”: s 41(2) of the AAT Act. While I accept ordering a stay would relieve the applicant’s financial burden while the substantive application is before the Tribunal, Comcare has pointed out that the question of whether or not Mr Warnock remains in business as a macadamia farmer need not affect the outcome of the case. While I accept Mr Warnock’s claim that the application is motivated at first instance by a desire to sustain his farming enterprise and secure his financial future, the hearing will not be rendered pointless or even more difficult if the Tribunal declines to make a stay order.

12. I am conscious Mr Warnock is experiencing a good deal of stress. He is angry with Comcare and the AFP. He points out that he may have some difficulty paying a lawyer to represent him in the future, although the Tribunal is used to dealing with unrepresented applicants and would make allowance for that fact if it came to pass. I am required to apply the law set out in s 41(2) of the AAT Act. That provision does not contemplate a stay order being made purely to relieve hardship or distress. I cannot justify making an order under that provision in the circumstances of this case. I remain of the view that the best course is to bring the matter on for a hearing as quickly as possible.

13. Finally, Mr Warnock also asked the Tribunal for an order remitting the matter to the respondent for reconsideration pursuant to s 42D of the AAT Act. I have decided that is not the appropriate course in the circumstances. The Tribunal is ready and able to deal with the matter as soon as the parties are ready. I do not see any advantage in sending the matter back to Comcare at this point.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe

Signed:..................................[Sgd]............................................
  Michael Buckingham, Associate

Dates of Hearing  9 and 12 January 2009
Date of Order  13 January 2009
The applicant was self-represented
Solicitor for the respondent      Sparke Helmore Lawyers