BABCOCK AUSTRALIA LIMITED v PROUDFOOT SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MAHONEY JA 17 May 1993 [1993] NSWCA 14 Mahoney JA. (On Notice of Motion) This is an application for a stay of an order of the Compensation Court. The only material placed before the court is the material contained or referred to in the affidavit of Andrew Gorman sworn on 5 May 1993. The court had before it a copy of the judgment of the judge of the Compensation Court dated May 1992. The affidavit discloses that the application for review or by way of appeal from the Commissioner came before Maroney J. The court has been informed the application for review or appeal was determined in favour of the worker. The order that was made by Mr Commissioner Cross provided for the payment of weekly compensation, for the payment pursuant to s 66, of $83,400, for the payment of interest by reference to the arrears of weekly payments and on s 66, for the payment of s 60 expenses (that is, hospital, medical and the like) and for the payment of costs. The court is asked to grant a stay which will effectively obviate the applicant (the employer) having to pay the s 66 amount and the interest payable on it. No stay is sought in relation to the payment of weekly compensation. A stay is also sought in relation to the medical expenses. So far as granting a stay is concerned this raises for consideration the question of whether this Court has the power to grant a stay of an order of the Commissioner in the ordinary way. Mr Poulos has submitted the order may be effectively made and that it is a stay of an order of the judge and not of Mr Cross. That may or may not be so. The court has not been referred to the relevant portions of the Act in that regard. No objection has been made to the stay on that ground and I shall assume the court has power, if it feels appropriate, to make orders for a stay accordingly. The application is, as I have said, not for a stay of weekly compensation payments and, therefore, the order continues to take effect in that regard. So far as the s 66 payments are concerned the amount involved is, as I have said, $83,400. Mr Poulos has informed the court that as a price for the stay of proceedings between the Commissioner and the Workers Compensation Court an amount of $50,000 was paid, on some account or other, by the employer to the worker. In the circumstances, so far as they are before me, there does not appear to be any need for a payment of $83,400 to be made to the worker pursuant to s 66. The right to such a payment is, I understand, the subject of contest in the appeal and it isappropriate that a stay of that part of the order will apply. That will apply also to the interest upon that order as it was ordered to be paid by Mr Cross and presumably by the judge. 2 UNREPORTED JUDGMENTS A more difficult question arises in relation to the s 60 payments. The parties informed the court that the worker is now a quadriplegic and is in the receipt of home care expenses and that expenses would have been incurred in that regard. Mr Poulos asked that there be a stay on the application to pay the s 60 expenses. However, it is not clear, at least it is not made clear to me on the evidence before the court, as to when any payment will be required to be made by the employer or how that payment is to be made. I am informed that at the moment all such payments are made by the Medicare authority and in due course, if the employer fails in the proceedings by way of appeal, the Medicare authority will recover these amounts, or some of them, from the employer. So far as the evidence before me shows, the employer is not presently the subject of an application by anybody to pay the expenses. If some application were made to the employer to force payments of the particular amounts, pending the determination of the appeal, then the matter would be considered upon the facts then placed before the court. However, I do not think I should make any order at the present time. It may be that the effect of the order might interfere with the care of the worker and the payment of the relevant amounts. It would be unfortunate if that occurred and the worker subsequently was found to have been entitled to the payment of s 60 expenses. I, therefore, am of the opinion that an order should be made effectively staying the payment of the s 66 amount and the interest on it. I make no order in respect of the weekly payments or in relation to the s 60 expenses. However, as I have said, if an occasion arises for reconsideration of the payment of s 60 expenses pending determination of the appeal, then the employer is free to make such further application as it may be advised. It may be that the parties will see fit to allow the present situation to remain pending the determination of the appeal. Then the parties will know their rights in that regard and proper adjustments can be made between the parties in relation to the s 60 payments which are finally determined to be payable. The parties have also sought expedition of the hearing of the appeal. I have nothing before me other than the fact that the worker is quadriplegic. I would normally not be disposed, simply on that ground alone, to order expedition. Mr Poulos pointed out that if the worker is not entitled to compensation payments, then the weekly compensation payments, which are being made, will be, in a practical sense, irrecoverable and that to safeguard against that the application for expedition is made. It is not opposed. I will direct that the matter be referred to the Registrar to fix a date for the hearing of the appeal upon an expedited basis. I shall not make any special orders in relation to the settling of appeal papers and the other incidental matters, such as the filing of written submissionsand the like. No doubt if the parties desire the matter to be heard urgently they will attend to those matters as soon as possible. If either party is in default the other party may make an application for removal of its stay or otherwise as he may be advised. In relation to costs: it would appear the proper order, in relation to the present application, is that the costs of the application be costs in the appeal. Counsel may address on that, if they see fit. Orders accordingly.