FLIRT PTY LIMITED v UTE GALLAGHER [1991] NSWCA 95

FLIRT PTY LIMITED v UTE GALLAGHER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS J 11 February 1991

[1991] NSWCA 95

Samuels J This is an application for a stay of orders awarding worker's compensation to the opponent in proceedings in the Compensation Court in November last year. The worker, the opponent, obtained an award for continuing worker's compensation and has available to her a claim for lump sum compensation which has not yet been brought on or determined. The claimant seeks the order on the footing, of course, that if the appeal should succeed, there may be difficulty in recovering back from the opponent, who has not worked for some time, the amount of compensation paid to her.

There is no evidence before me from either side as to what the opponent's financial circumstances are save that which may be inferred from the judgment. From that I learn that she is married, and was apparently in employment until the disability which was found to be the basis of the incapacity for which she was compensated. However, that is not to say that she possesses no assets which might be charged or sold to satisfy any recovery of compensation. I would think, too, that it would be open to the Court, if a worker's spouse or partner had substantial assets, to consider the possibility of those being employed for the same purpose.

I take into account as well the fact that there is this claim for lump sum compensation which, if successful, would provide a fund from which compensation paid could be recovered.

All in all I do not think it is a case in which I ought to order a stay and cut off the payments of compensation to which, as matters stand, the opponent is entitled.

I add, by way of pedantic commentary, that the notice of motion is wrongly entitled.

I dismiss the notice of motion with costs.