AINSWORTH NOMINEES PTY LTD (T/A ARISTOCRAT LEISURE INDUSTRIES) vy CROUCH SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL KIRBY P 13 December 1993 [1993] NSWCA 2 WORKERS' COMPENSATION — appeal to Court of Appeal — stay — award under ss 66 and 67 Workers Compensation Act 1987 — employer concedes amounts payable but disputes amount awarded — offers to pay amounts conceded — suggests fear of difficulty of recovery if appeal allowed — worker refrains from offering evidence as to financial means — held: (1) In the circumstances a stay should be granted upon condition that the conceded amount is paid; (2) The fact that the worker was sixty-five years of age did not warrant an inference that he would die and render recovery of the award under s 67 impossible; (3) Stay ordered on conditions. PRACTICE & PROCEDURE — Court of Appeal — stay — workers' compensation award — conditions of stay — payment of uncontested sum ordered. Workers Compensation Act 1987, ss 66 and 67. Kirby P. This is a contested application for the stay of execution of an award of Manser CCJ, entered in the Compensation Court. His Honour awarded a worker, Edward Lester Crouch, compensation under s 66 and s 67 of the Workers Compensation Act 1987. The dispute before the Court will be the extent of the worker's entitlement. The claimant, Ainsworth Nominees Pty Ltd, trading as Aristocrat Leisure Industries, is the worker's employer. It concedes that the worker is entitled to an amount equivalent to 30 per cent of the maximum amount payable for permanent impairment of the back and 30 per cent of the maximum amount payable under s 67. However, it contests any liability beyond those amounts. It asserts that it should not be put to the inconvenience, in the event that its appeal succeeds before this Court, of having to endeavour, for want of a stay, to recover the amount paid out pursuant to the award from the worker. Filed in support of the motion for the stay of execution of the award is an affidavit of Mr Brian Manning Dodd, solicitor. That affidavitdeposes to a fear concerning the difficulties of recovery. It was pointed out by counsel for the worker that this affidavit did not proceed to provide any substantive basis upon which the Court could infer that the fear stated was justified. On the other hand, no affidavit was filed by the worker. This sometimes occurs in cases of this kind deposing to the worker's ample unencumbered assets sufficient to cover the amount of the award in full in the event that the award were subsequently reversed. The knowledge of the worker's assets is fully, if not exclusively, in the possession of the worker. It will not typically be shared with the employer. In those circumstances it would seem to be a matter of forensic reality that the Court should look to the worker to prove the lack of substance in the stated fear of risk. In default of such proof, I believe that the Court is entitled to infer that the fear, if not justifiable, is at least understandable and possibly warranted. From 2 UNREPORTED JUDGMENTS the Court's own experience it can be said that very real difficulties present themselves in pursuing the recovery of amounts which are paid pursuant to awards and judgments which are then set aside by the Court. It is undesirable that the appeal process should run the risk of being rendered futile by such inconvenience. It was then suggested that a differential approach should be taken in respect of the award under s 67 and under s 66 of the Act. Reference was made to the terms of s 67(5) of the Act and to the decision of this Court in Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318. I do not consider the fact that the worker is aged sixty-five provides any evidence that there is any peril that he is about to die. No evidence to that effect was placed before the Court. I would therefore infer that the worker will survive to hear the outcome of this appeal. No special or differential order should be made in respect of the amount awarded under s 67. The employer concedes that an amount of $17,415 should be paid pursuant to s 66 and $14,520 pursuant to s 67. Those amounts should therefore be paid as a condition of the stay. However, upon their payment within twenty eight days of this date, the execution of the award should be stayed until the determination of the appeal or any further or other order of the Court or of a Judge of Appeal. Upon payment to the worker within 28 days of the sums of $17,415 conceded to be payable under s 66 of the Workers' Compensation Act 1987 and $14,520 conceded to be payable under s 67 of that Act order that execution of the award of Manser CCJ be stayed until the determination of the appeal or any further or other order of the Court of Appeal or of a Judge of Appeal. Counsel for the claimant: M W Young Solicitors for the claimant: Rishworth Dodd Menczel Counsel for the opponent: D A Baker Solicitors for the opponent: Bartier Perry Purcell