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Peter v Department for Education and Child Development [2019] SAET 132 (4 July 2019)

Last Updated: 4 July 2019

Peter v Department for Education and Child Development [2019] SAET 132

SOUTH AUSTRALIAN EMPLOYMENT TRIBUNAL


PETER, Hamish

v

DEPARTMENT FOR EDUCATION AND CHILD DEVELOPMENT

JURISDICTION: South Australian Employment Court – Return to Work Act 2014 – Appeal – Stay Application

CASE NO: 1499 of 2019

HEARING DATE: 25 June 2019

REASONS FOR DECISION
AND ORDERS OF: Her Honour Deputy President Judge Kelly
His Honour Deputy President Judge Rossi
His Honour Auxiliary Judge Clayton

DELIVERED ON: 4 July 2019

CATCHWORDS:

Appeal to Full Bench – Application to set aside stay order – Stay of costs order – Respondent was ordered to pay appellant’s costs of and incidental to proceedings – Stay order represents a “decision” of the Tribunal - Application for appeal by the respondent did not expressly appeal the costs order – Order made for payment of costs does properly constitute a decision and is binding upon the parties – legal right to payment of costs - Discretion to grant stay application – onus on applicant to demonstrate and persuade court that a stay is justified – Evidence before the Tribunal of appellant having the capacity to pay a substantial sum and respondent did not put any evidence before Tribunal as to quantum of costs claimed when it was in a position to do so – No evidentiary basis for the exercise of discretion to stay costs order Held: Appeal allowed. Stay of costs order is set aside.

Section 67(1) of the Return to Work Act 2014
Section 106(7) of the Return to Work Act 2014

Peter v Department for Education [2018] SAET 222

Peter v Department of Education [2019] SAET 56

Emmett v Return to Work Corporation of South Australia [2015] SAET 1
Licul v Corney [1976] HCA 6; (1976) 180 CLR 213
Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246
Bienstein v Bienstein (2003) 195 ALR 225
Stanberg Pty Ltd v Tabibi [2012] SASC 187
Cellante & Ors v G Kallis Industries Pty Ltd [1991] No 2 VR 653
Tonkes v Giurassi [2018] SAET 100
Maughan Thiem Auto Sales Pty Ltd v Cooper [2013] FCAFC 145
Brennan-Lim v Return to Work SA (De Poi Consultancy Services Pty Ltd) (No 2) [2016] SAET 64

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
South Australian Fire and Emergency Services Commission v Workers Compensation Tribunal & Anor [2009] SASC 213
Dalton v The State of South Australia (in right of the Department for Families and Communities) [2010] SASC 45

On appeal from the decision of Deputy President Judge Hannon [2019] SAET 56

REPRESENTATION:

Counsel:
Appellant: Mr J Warren
Respondent: Mr B Ikonomopoulos

Solicitors:
Appellant: Palios Meegan and Nicholson
Respondent: Crown Solicitors Office

Kelly DPJ

1. I would allow the appeal and make the orders set out in paragraph 40 for the reasons given by Rossi DPJ.

Rossi DPJ

2. Since the delivery of reasons for decision by the learned Deputy President on 20 December 2018^[1] three separate applications to appeal have been filed.
3. These reasons for decision and orders concern the appellant’s Application to Appeal dated 12 April 2019 and which seeks the setting aside of a stay order made by the learned Deputy President on 1 April 2019. That stay order was subsequently confirmed, by way of administrative function of the Tribunal, in Presidential Orders dated 9 April 2019.
4. The stay order relates to order No. 5 of a series of orders made by the learned Deputy President on 22 January 2019 and which was expressed as follows:
   5. The respondent must pay the applicant’s costs of and incidental to the proceedings.

Jurisdiction

5. The first issue to be addressed is whether the stay order represents a “decision” for the purposes of s 67 of the South Australian Employment Tribunal Act 2014 (“the Act”). Section 67(1) of the Act provides as follows:
   • (1) Subject to this section and to any provision of a relevant Act as to the review of, or appeal against, a decision of the Tribunal, an appeal lies against a decision of the Tribunal, other than a decision of a Full Bench, to a Full Bench of the South Australian Employment Court.

(my emphasis)

6. The meaning of “decision” is defined in s 3(1) of the Act:

decision, of the Tribunal, includes a direction, determination or order of the Tribunal but, in prescribed circumstances, does not include an interlocutory direction, determination or order;.

7. In Emmett v Return to Work Corporation of South Australia^[2] Hannon DPJ addressed the term “decision” in the context of the distinction commonly drawn between an interlocutory and final judgment in a subsequent appeal process. Relevantly, the point of distinction as to whether a judgment is interlocutory or final is whether the judgment finally disposes of the rights of the parties in the action.^[3]
8. A stay order does not finally dispose of a right of the parties in the action and, accordingly, is interlocutory in nature.
9. In Emmett^[4] Hannon DPJ considered the extent of the limitation of appeals permitted with respect to an interlocutory direction, determination or order. After quoting from the definition of “decision” in s 3(1) of the Act, he observed:

The implication is that a decision of the Tribunal as defined will include “an interlocutory direction, determination or order” unless otherwise prescribed.

10. I agree that the implication does arise. I have considered the terms of reg 4 of the  South Australian Employment Tribunal Regulations 2015  (“the Regulations”) and the circumstances of this matter do not fall within the ambit of any of the classes of event set out in that regulation. Accordingly, a stay order may constitute a decision for the purpose of subsection 67(1) of the Act.

The events leading to this appeal

11. The issues at trial related to an assessment of whole person impairment pursuant to ss 43 and 43A of the Workers Rehabilitation and Compensation Act 1986 and having regard to reg 5 of the Return to Work (Transitional Arrangements) (General) Regulations 2015 and cl 1.21, 1.22 and 1.24 of the WorkCover Guidelines for the Evaluation of Permanent Impairment.
12. On 20 December 2018 the learned Deputy President delivered reasons for his conclusion as to the percentages of whole person impairment proven for the various injuries which were the subject of the claim by the appellant at trial.
13. On 22 January 2019 Orders were made by the learned Deputy President which included Order No. 5 as follows:

The respondent must pay the applicant’s costs of and incidental to the proceedings.

14. The respondent applied to his Honour for a stay of various orders including Order No. 5 relating to costs. I understand that application to have been made pursuant to s 69 of the Act which provides as follows:

69—Effect of appeal on decision
(1) The commencement of proceedings under this Part does not affect the operation of a decision to which the proceedings relate or prevent the taking of action to implement such a decision.
(2) However, the Tribunal or the relevant court may make an order staying the operation of a relevant decision (including a decision of a relevant decision-maker) until the proceedings are finally decided (on such conditions as may be specified in the order).
(3) The Tribunal or a court may act under subsection (2) on application or on its own initiative.
(4) The Tribunal's power to act under subsection (2) is exercisable only by a Presidential member.

15. The application for a stay order was in the context of the respondent’s application to appeal dated 4 February 2019. The respondent seeks to appeal aspects of what is referred to as the “decision” of the learned Deputy President dated 20 December 2018.

The reasons for decision relating to the stay order[5]

16. The learned Deputy President noted that there is no specific appeal in relation to the costs order made by him^[6] and that no evidence had been put before him to establish the extent of any risk of a subsequent adverse cost order against the appellant being rendered nugatory. His Honour’s reasoning for the granting of the stay order with respect to costs is set out in paragraph 27 as follows:

In my view a “relevant decision” which might be the subject of a stay order should be interpreted broadly so as to include an order such as that made for payment by the respondent of the applicant’s costs, even though that order is not specifically the subject of appeal. In the present circumstances, I am satisfied that a possible outcome of a successful appeal by the respondent, if the issue of the costs of the first instance hearing is then able to be ventilated, may be that the application of s 106(7) will deprive the applicant of any entitlement to costs. To decline to stay the order that such costs be paid would add to the total sum which the applicant might be required to repay if the respondent’s appeal is successful, and adds to the possibility, albeit unsupported by evidence, that a successful appeal by the respondent might be nugatory.

The appellant’s argument on appeal

17. Mr Warren, who appeared for the appellant, advanced two main grounds asserted to arise from errors of law. Firstly, properly construed, the Application for Appeal of the respondent dated 4 February 2019 does not appeal the costs order and a ‘relevant decision’ for the purpose of s 67(1) in this matter must include an appeal against the costs order in favour of the applicant relating to the trial. As an alternative to this ground it was submitted that a stay order was premature as there had been no adjudication of the applicant’s costs of the trial. Secondly, if the costs order was amenable to a stay, the discretion to grant the stay could not be exercised on the basis of the limited material that was before him.

The respondent’s argument on appeal

18. It was only when pressed by the Tribunal that Mr Ikonomopoulos, who appeared for the respondent, asserted that the respondent’s Application Appeal is intended to appeal the costs order. In relation to the second ground relied upon by the appellant, Mr Ikonomopoulos maintained that for the reasons expressed by the learned Deputy President, there was sufficient material for the exercise of discretion to make the stay order.

Consideration

19. In relation the first ground relied upon by the appellant, the respondent’s application to appeal identifies the date of decision as being 20 December 2018. That is the date of the reasons for decision. Further, no costs order was made at that time. The relevant costs order was made on 22 January 2019. It followed final orders, made at the same time, with respect to the appellant’s entitlement to a lump sum payment for non-economic loss. The respondent’s Application to Appeal, as noted above, is dated 4 February 2019. The respondent was aware of the costs order at that time. I note that one of the orders sought by the respondent in that Application of Appeal is expressed as follows:
    1. That the orders by the learned Deputy President dated 22 January 2019 be stayed, pending the outcome of the appeal in this matter.
20. In this jurisdiction, not infrequently, there are documents referring to a ‘judgment’ of a Presidential Member subsequently followed by a document entitled ‘orders’ of the Tribunal. Care must be taken by a party contemplating an appeal to identify whether the ‘judgment’ document is a decision for the purpose of an appeal or not.
21. In Tonkes v Giurassi^[7] President Justice Dolphin referred to the important distinction between the reasons for a decision and the finalisation of the task of delivering the decision by way of orders. It is the orders that are the subject of appeal.^[8]
22. In the present case, in the reasons for decision dated 20 December 2018, after reaching conclusions and providing the reasons for those conclusions, his Honour stated:
    111. The application for a declaration that the applicant be taken to be a seriously injured worker is adjourned for further consideration if necessary.
    112. I will hear from the parties as to the form of orders to be made to give effect to this decision.
23. It would have been more accurate for his Honour to have referred to “these reasons for decision” in paragraph 112.
24. Although at paragraph 109 a conclusion is reached that individual percentages of whole person impairment are to be combined for the purposes of s 43(6) of the repealed Act, it was not until the orders were made on 22 January 2019 that the overall percentage of whole person impairment was fixed at 58%. The orders also proceed to set out the amount of the entitlement to a lump sum payment for non-economic loss.
25. In my view the decision for the purpose of any appeal is the document incorporating the orders made on 22 January 2019.
26. This is to be contrasted to his Honour’s reasons for decision of 1 April 2019 relating to the stay order, where his Honour incorporates, at paragraphs 28 and 29, the orders made that day.
27. Unfortunately, parties contemplating an appeal from an interlocutory order are not assisted by the template form A96 Application to Appeal of the Tribunal. Just below the heading exists a series of bullet points which includes the following:
    • A Notice of Appeal should only be lodged against a decision of the Tribunal that finally determines the proceedings and where orders have been made to fix the rights of the parties.

(my emphasis)

28. This could result in a party erroneously believing that the Tribunal’s jurisdiction on appeal to deal with a stay order may only arise if the stay order were treated as an ancillary or consequential order to an appeal pursuant to s 67(1) of the Act and relating to final orders made.
29. As the respondent has now made clear that it does wish to appeal the order of costs in favour of the applicant relating to the trial and having noted the uncertainty that could arise from the template Application to Appeal document, I would not be disposed to set aside the stay of the costs order, at this time, because of the deficiency associated with the pleading in the respondent’s Application to Appeal.
30. In relation to the alternative aspect of the first ground concerning the distinction between the order for costs and the fixing of the amount including, if necessary, a process of adjudication, I am satisfied that in the circumstances of the order made for the payment of costs, it did properly constitute a decision for the purpose of s 67(1) of the Act. The order constitutes a decision which is binding upon the parties and is determinative of the legal right to a payment of costs.
31. I now turn to the second ground advanced by the appellant, that there was no basis for the Deputy President exercising the discretion in the manner in which he did.
32. The principles relevant to the exercise of discretion concerning a stay application in circumstances such as the present are well settled. They may be summarised as follows:
    1. The filing of a Notice of Appeal does not, in itself, operate as a stay of orders made related to the subject of the appeal. That is the position generally and is also the effect of s 69(1) of the Act.
    2. The applicant for a stay bears the onus of demonstrating that a stay is justified.
    3. Whilst the test has been formulated in various ways it is clear that the applicant bears the onus of persuading the court that the circumstances take the case out of the general rule that an appeal does not operate as a stay. It is not necessary in this matter to address the various formulations of the test in other judgments.
    4. The discretion is wide and is not circumscribed by rigid rules. The court should take account of all of the circumstances of the case.
    5. Particularly relevant to the exercise of the discretion in this case by the learned Deputy President, circumstances might exist for the granting of a stay where a successful appellant would be deprived of the fruits of the appeal if a stay of execution of the orders was not granted. The reason is that, in such circumstances, the appeal might be rendered nugatory.
33. In relation to point 5, in Cellante & Ors v G Kallis Industries Pty Ltd^[9] Young CJ stated relevant circumstances would “exist where for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed”.
34. Ordinarily the costs at trial of the applicant worker, as a party to the proceedings, would not be in issue, regardless of the outcome of an appeal. In the present case however a possible outcome could be an entitlement to a lump sum payment less than 10% over and above an offer put by the respondent to the applicant to settle the matter prior to trial and which would then invoke the application of s 106(7) of the Return to Work Act 2014. That subsection provides as follows:

If the amount of permanent impairment compensation is disputed by a worker and the amount the Tribunal awards is less than, or the same as, or less than 10% above, an amount offered by the relevant compensating authority to settle the matter before the matter proceeds to a hearing before the Tribunal, the worker is not entitled to costs under this section (and evidence of an offer made in the course of a compulsory conference or mediation is admissible (without the consent of all parties) in subsequent proceedings for the purpose of applying this provision).

35. As previously noted, the learned Deputy President expressly had regard to this provision in the exercise of his discretion:^[10]

... In the present circumstances, I am satisfied that a possible outcome of a successful appeal by the respondent, if the issue of the costs of the first instance hearing is then able to be ventilated, may be that the application of s 106(7) will deprive the applicant of any entitlement to costs. ...

36. Immediately following that statement, which informs the exercise of the discretion, the following appears:

... To decline to stay the order that such costs be paid would add to the total sum which the applicant might be required to repay if the respondent’s appeal is successful, and adds to the possibility, albeit unsupported by evidence, that a successful appeal by the respondent might be nugatory.

37. I have previously noted that no evidence was presented by the respondent, to the learned Deputy President, in relation to its suggested concern of its appeal in relation to the costs order being rendered nugatory. In the course of the proceedings before us we were informed by Mr Warren that a letter dated 3 February 2019 was forwarded by the appellant’s solicitors to the respondent’s solicitors which made a claim for costs and specified an amount. This was followed by a detailed memorandum and a copy of work in progress entries on 4 March 2019. As the hearing before the learned Deputy President did not take place until 18 March 2019 the respondent was in a position, at the time of submissions to the learned Deputy President with respect to the proposed stay order, to quantify the maximum amount of costs of the applicant relevant to the application. It chose not to. This is of particular significance because his Honour, without opposition from the respondent, did not make a stay order with respect to a lump sum payment of $62,236.00.^[11] Accordingly, there was evidence before the learned Deputy President of the appellant having the capacity to pay such a sum and the respondent electing not to put any evidence before the Tribunal as to the quantum of the costs claimed. As previously referred to, no evidence was put before the learned Deputy President as to the appellant’s financial position generally. In these circumstances there was no evidentiary basis for a conclusion of a significant risk of the appellant not being in a position to repay his costs of the trial to the respondent. An error of law has been established.^[12]
38. Further, in exercising his discretion, his Honour suggests, at para 27, that the costs amount could ‘...add to the total sum which the applicant might be required to repay if the respondent’s appeal is successful and adds to the possibility, albeit unsupported by evidence, that a successful appeal by the respondent might be nugatory’. However, his Honour’s reasons do not disclose what other sum the appellant may be required to pay following the outcome of the appeal process. His Honour referred to the varying decisions of the Tribunal with respect to whole person impairment and I do not see any basis, on the available evidence, that would deprive the appellant of his reasonable costs related to the outstanding appeals.^[13] A stay order was made in relation to the other lump sum entitlement he found in favour of the appellant. Here too I am satisfied that there was no evidence to substantiate this part of the reasoning and that an error of law has been made.
39. The respondent had failed to discharge the onus of demonstrating a basis for a stay of the costs order.
40. The appropriate orders are:
    1. The appeal is allowed.
    2. Order No. 1 of the sealed Presidential Orders of his Honour Deputy President Judge Hannon dated 9 April 2019, insofar as it grants a stay of order No. 5 made by his Honour on 22 January 2019, relating to the appellant’s entitlement to the costs of proceedings at trial, is set aside.

I would hear from the respondent as to whether any submission is made against an order that the respondent pay the appellant’s costs of this appeal.

Clayton AuJ

41. I would allow the appeal and make the orders set out in paragraph 40 for the reasons given by Rossi DPJ.

^[1] Peter v Department for Education [2018] SAET 222.

^[2] [2015] SAET 1.
^[3] Licul v Corney [1976] HCA 6; (1976) 180 CLR 213; Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246; Bienstein v Bienstein (2003) 195 ALR 225 and Stanberg Pty Ltd v Tabibi [2012] SASC 187. The specified limited restriction in the ability to appeal an interlocutory order is against the background of decisions such as Mitsubishi Motors Australia Ltd v Andrew Warren JD 88/1999. This was a decision of the Full Bench of the Workers Compensation Tribunal which construed the comparable term ‘a decision’ in s86(1) of the Workers Rehabilitation and Compensation Act 1986 as extending to an interlocutory decision where such decision, if made erroneously, would result in a real injustice to the aggrieved party if allowed to stand.
^[4] Ibid at [15].

^[5] Peter v Department of Education [2019] SAET 56.

^[6] Ibid at [18].

^[7] [2018] SAET 100.

^[8] Maughan Thiem Auto Sales Pty Ltd v Cooper [2013] FCAFC 145 at [46] as to the distinction between conclusions (including the reasons for reaching those conclusions) and the making of an order constituting a “decision”; Dalton v The State of South Australia (in right of the Department for Families and Communities) [2010] SASC 45 from [38] that an appeal is brought against an order and not against the reasons that support the order. Further, the order takes effect from when it is announced.

^[9] [1991] No 2 VR 653, 657.

^[10] Peter v Department of Education [2019] SAET 56 at [27].

^[11]Peter v Department of Education [2019] SAET 56 at [19] & [22].

^[12] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155 per Glass JA; South Australian Fire and Emergency Services Commission v Workers Compensation Tribunal & Anor [2009] SASC 213 at [52] – [57].

^[13] Brennan-Lim v Return to Work SA (De Poi Consultancy Services Pty Ltd) (No 2) [2016] SAET 64.