AARDVARK SECURITY SERVICES PTY LTD v RUSZKOWSKI SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P 13 July 1192, 13 July 1992 [1992] NSWCA 1 WORKERS COMPENSATION — stay — death claim — lump sum paid to WorkCover Authority — stay on payment out — weekly payment to child — no stay under Act. WORDS AND PHRASES — "weekly payments of compensation". WORKERS' COMPENSATION — appeal to Court of Appeal — death claim — award of lump sum in favour of widow and weekly payment to child — application for stay pending outcome of appeal — desire to protect utility of appeal — lump sum paid to WorkCover Authority — Compensation Judge (Thompson CCJ) recommends that lump sum be paid out to widow — held: (1) A stay should be provided in respect of the recommendation and liberty should be reserved, if need be, to restore the motion to the list with notice to the WorkCover Authority; (2) Pursuant to Compensation Court Act 1984, s38(3) no stay could be granted in respect of the weekly payments to the child of the deceased worker as these were made pursuant to "an award of weekly payments of compensation". APPEAL — practice — stay — award of Compensation Court — weekly payments to child of deceased worker — challenge to entitlement to award whether stay could or should be granted to protect utility of award Lovett Building Company v Burns (1991) 26 NSWLR 37 (CA) applied. Held: No stay of such payments could be granted because of s38(3) Compensation Court Act 1984 - hearing of appeal expedited. Compensation Court Act 1984, s38. Workers Compensation Act 1987, s3(1), s10(1), s25. ORDERS 1. Stay para3 of the award of Thompson CCJ dated 29 May 1992, to the intent that the sum of $158,750 should remain with the WorkCover Authority pending the outcome of this appeal to abide any further or other order of this Court; 2. Application for a stay of the execution of the order in para2 of Thompson CCIJ's award in respect of weekly amounts to be paid to the opponent, Bronwyn Jane Ruszkowski in respect of her child, Katarzyna Helena Ruszkowski, refused; 3. Order that the costs of the motion, having partly succeeded and partly failed, be costs in the appeal to abide its outcome; 4. Order expedition of the hearing of the appeal, category C, to the intent that the appeal will be heard in or about September 1992; and 5. Liberty is reserved to either party upon notice to the other, to relist the motion for any further or other orders which may become necessary by reason of later circumstances. Kirby P In what is otherwise a perfectly ordinary motion, an issue has arisen which takes the law beyond that stated in Lovett Building Company v Burns (1991) 26 NSWLR 37 (CA). MOTION FOR STAY OF COMPENSATION TO WIDOW AND CHILD OF DECEASED WORKER Aardvark Security Services Pty Ltd (the claimant) has sought provision from this Court that orders made by Thompson CCJ in the Compensation Court oh 29 May 1992 should be stayed pending determination of an appeal to this Court from those orders, or until further order. 2 UNREPORTED JUDGMENTS The details of the case are not before the Court. However, from the award of Thompson CCJ, it emerges that the claim for compensation in the Compensation Court arose out of the death of one Jasec Ruszkowski (the worker) on 16 July 1992. The claim was made that the worker's death was the result of a compensable injury received by him on that day. The claim to the Compensation Court was brought by the widow of the worker, who is the present respondent. She brought the claim on her own behalf and on behalf of the child of the marriage,' Katarzyna Helena Ruszkowski. The child was born, as appears on the face of Thompson CCJ's award, on 13 December 1989. It was alleged that she was totally dependent for support upon the deceased worker at the time of his death. Thompson CCJ determined that no other person was dependent for support on the deceased at the time of his death. He found that compensation was payable. He ordered inter alia that an amount of $68.60 be paid in respect of the child from 1 April 1992, such weekly payments to continue in accordance with the provisions of the Workers Compensation Act 1987. By s25 of that Act provision is made for payment of compensation in respect of the death of a worker in circumstances attracting the right to compensation. By s25(1)(b) provision is made for an amount to be paid each week, in addition to the lump sum payable, in respect of each dependent child of the worker under the age of 16 years. It is that provision to which that part of the award of Thompson CCJ which relates to the child refers. His Honour ordered that the statutory amount of compensation be paid to the WorkCover Authority forthwith following his award, that the employer pay the widow the weekly payments referred to in respect of the child, that liberty be granted to apply in respect of an award of interest, and that widow's costs be paid. He recommended that, upon payment of the aggregate of the foregoing amounts to the WorkCover Authority, the Authority should pay the sum out to the widow forthwith. It is this part of the award which is the subject of the challenge in this motion. The challenge in the appeal, as set out in a notice of appeal which is before me, contests, amongst other things, that the worker was killed on a "journey" within the meaning of s10(1) of the Workers Compensation Act having regard also to sl0(1A). If this ground of appeal succeeds, the widow (and hence her dependent child) would not be entitled to recovery of any compensation. In these circumstances, the employer's motion for a stay is designed to protect the employer against the risk that the appeal may be successful but its success rendered futile by the payment out to the widow of the amount of compensation which later proves difficult or impossible to recover. Experience in such cases teaches that it is usually desirable to protect a litigant against the risk that it will succeed in its case but find the success an empty one because the fruits of victory have been expended or are not readily available to be recouped. For these reasons I would ordinarily be minded to provide protection to the employer against the risk that this might occur in the present case. STATUTORY PROVISIONS LIMITING THE GRANT OF A STAY However, two problems arise. Each of them derives from the language of s38 of the Compensation Court Act 1984. It was that section which was earlier explored in the Lovett Building Company case. It is clear that the policy behind that section was to ensure that, in the event (relevantly) of an appeal to this Court from an award of the Compensation Court, a worker in receipt of weekly compensation should not be left destitute by an order for a stay until the appeal could be heard. Doubtless those who prepared the URJ | AARDVARK SECURITY SERVICES PTY LTD v RUSZKOWSKI (Kirby P) 3 Bill for Parliament weighed up the considerations of protecting employers, and insurers who stand behind them, from futile appeals, against the grave disadvantage which would arise for working people and their families if they were left without compensation during the sometimes long interval between the lodging of an appeal and its determination. S38 of the Compensation Court Act provides: "38(1) The Compensation Court may, subject to any order of the Supreme Court, order a stay of proceedings (on such terms as the Compensation Court thinks fit) in respect of any award the subject of an appeal, a review, a stated case or a request for a stated case under this Part. (2) In the absence of a stay of proceedings ordered by the Supreme Court or by the Compensation Court, a notice of appeal, review, stated case or request for a stated case does not operate as a stay of proceedings. (3) If a stay of proceedings is ordered by the Supreme Court or the Compensation Court in respect of an appeal against or review of an award of weekly payments of compensation, the stay of proceedings does not operate to affect the liability to make those payments under the award." STAY OF PAYMENT OUT OF LUMP SUM GRANTED The first problem is that the lump sum payable to the widow is not, within the meaning of the Act, a "weekly payment of compensation". It is instead a payment which is constituted by a lump sum as provided by s25 of the Workers Compensation Act. Counsel for the widow asked that the extent of this Court's stay, in the exercise of its discretion, should be confined to an order which controlled the payment out to the opponent of the sum awarded. Such a confined order would, so it was argued, adequately protect the interest which the employer has in seeking a stay because the lump sum, would, in such circumstances, remain with the WorkCover Authority. Within the funds of the Authority the employer would be entirely protected. No risk would be run that an appeal would be rendered futile by the unavailability of the funds after the orders of this Court were made. Counsel for the widow suggested that the order which should be made by this Court should be confined to protecting the employer's interest against the loss of its moneys in the event of the success of the appeal. This could be done, so it was said, by simply staying execution upon so much of Thompson CCJ,s award as provided for the recommendation concerning the payment out by the WorkCover Authority to the widow. It would leave the actual compensation amount with the WorkCover Authority where, it was suggested, the rate of interest payable to the widow if it held her award would be greater than she would secure under other provisions as to interest both in the Supreme Court Act and the Compensation Court Act. The source of the power of Thompson CCJ to make the recommendation which is part of para3 of his award is not clear. However, I am told it is common practice for such a recommendation to be made, presumably upon the basis it is for the WorkCover Authority, under its statute, to determine what payments should be made, and when and to whom they should be made. It is not ordinarily the practice of this Court to make recommendations. However, conformably with the principle that orders for a stay should be confined to minimal interference with the orders of the court or tribunal under appeal or review, it does seem appropriate to confine the stay order in this case to the recommendation concerning the payment out of the sum held by the WorkCover Authority. 4 UNREPORTED JUDGMENTS The WorkCover Authority is not before this Court. It has not been heard to resist any order directed to it. Accordingly, I do not consider that it would be appropriate for the Court to make any such order against the Authority until it has had an opportunity to be heard. However, it is appropriate to stay execution upon para3 of Thompson CCJ's order. That will have the effect of holding action upon the recommendation which his Honour made. I would expect that the Authority, conformably with the purpose of these reasons, would not pay the amount which it holds out to the widow. That amount should remain with the Authority until the Court has determined the appeal. I will reserve to the parties liberty to apply to the Court on short notice so that, in the event of payment being made or received, the matter can be brought back f or such orders as then appear appropriate. At that time it might be necessary to bring the Authority before the Court so that it could be heard on any orders directed to it. STAY OF WEEKLY PAYMENT FOR CHILD SHOULD BE REFUSED However, a second difficulty arises from the fact that, pursuant to the order of 'Thompson CCJ, weekly amounts continue to be paid to the child of the deceased worker. The difficulty arises from the language of s38 of the Compensation Court Act. The provision limiting the grant of a stay by this Court is found in subs(3). I remind myself that subsection states: "(3) If a stay of proceedings is ordered by the Supreme Court... in respect of an appeal against... an award of WEEKLY PAYMENTS OF COMPENSATION, the stay of proceedings does not operate to affect the liability to make those payments under the award."(emphasis added) The question is thus the meaning of the phrase "weekly payments of compensation". It was submitted that, being expressed in the Compensation Court Act, that phrase should pick up the meaning of those words specially provided for in s3(1) of the Workers Compensation Act. In that latter Act "weekly payment" is defined to mean, in relation to compensation: a weekly payment of compensation under Division 2 of Pt3 in respect of a period of total or partial incapacity for work." Division 2 of Pt3 of the Workers Compensation Act is that part of the Act in which, relevantly, provision is made for "weekly payment" to injured workers. The provisions of s25, which relate to death claims, is not found in Division 2 of Pt3. Accordingly, it was argued that "weekly payments of compensation" in s38(3) of the Compensation Court Act do not include weekly payments made to a child of a deceased worker. Hence, it was said, there was no relevant limitation on the power to grant a stay of the weekly payments being made to the child, Katarzyna Ruszkowski. Accordingly, freed of any such limitation, this Court should provide the stay to protect the utility of the employer's appeal. This argument is persuasive. Wherever possible, courts should adopt an approach to statutory construction which ensures the integration of related legislation and avoids disharmonious construction of phrases in statutes which are intended to operate together. Cf Piper v Corrective Services Commission of New South Wales (1986) 6 NSWLR 352 (CA) at 361. Clearly the Workers Compensation Act 1987 is intended to operate in close harmony with the Compensation Court Act 1984. However, I must weigh that consideration against the obvious policy of Parliament which emerges from the provisions of s38 of the Compensation Court Act. It is an unusual section. It places a special statutory limitation upon what is, otherwise, the very large power URJ | AARDVARK SECURITY SERVICES PTY LTD v RUSZKOWSKI (Kirby P) 5 of this Court to grant a stay to preserve the subject matter of litigation, to protect the interests of parties and ensure the utility of their appeal or other application to this Court pending its outcome. The obvious purpose of s38 is that which I earlier stated in Lovett Building Company v Burns. Indeed, it has already been set out above. It is to ensure that parties, pending 'hearing relevantly of an appeal to the Court, should not be left without weekly payments necessary for their sustenance. That principle which applies to injured workers applies with even greater force, I should think, to the sustenance of a child of a deceased worker found by the primary judge to have died in circumstances giving rise to an entitlement to compensation. It would be undermining of the purpose and policy of s38 of the Compensation Court Act for a narrow construction of the phrase "weekly payments of compensation" to be adopted here. It is not necessary to adopt such a narrow construction. The special definition of the phrase "weekly payment" in the Workers Compensation Act is, by the terms of s3 of that Act and by its clear purpose, confined to the use of that phrase in the Workers Compensation Act. Where used in s38 of the Compensation Court Act I consider that the words are to be given their ordinary meaning. That is a meaning uncontrolled by a special statutory definition provided in another Act. Within the ordinary meaning of the words weekly payment of compensation is included the weekly payment of an amount provided by the Workers Compensation Act to be paid to, or in respect of, a child of a deceased worker. CONCLUSION AND ORDERS I have therefore concluded that the "weekly payment of compensation" referred to in s38(3) limits the power of this Court to stay the weekly payments to the child which are provided by para2(2) of Thompson CCJ's award in this case. Accordingly, in respect of that paragraph of the award, no stay may be granted on this motion. The weekly payments in respect of Katarzyna Ruszkowski should continue to be made to her mother until further order of this Court determining the outcome of the employer's appeal. The orders which follow from the foregoing are: 1. Stay para3 of the award of Thompson CCJ dated 29 May 1992, to the intent that the sum of $158,750 should remain with the WorkCover Authority pending the outcome of this appeal to abide any further or other order of this Court; 2. Application for a stay of the execution of the order in para2 of Thompson CCJ's award in respect of weekly amounts to be paid to the opponent, Bronwyn Jane Ruszkowski in respect of her child, Katarzyna Helena Ruszkowski, refused; 3. Order that the costs of the motion, having partly succeeded and partly failed, be costs in the appeal to abide its outcome; 4. Order expedition of the hearing of the appeal, category C, to the intent that the appeal will be heard in or about September 1992; and 5. Liberty is reserved to either party upon notice to the other, to relist the motion for any further or other orders which may become necessary by reason of later circumstances. Counsel for the claimant: P O'Connor Solicitors for the claimant: Vandervords 6 UNREPORTED JUDGMENTS Counsel for the opponent: R Hanrahan Solicitors for the opponent: Athena Touriki