KAYELL PTY LIMITED v FAHEY [1995] NSWCA 234

KAYELL PTY LIMITED v FAHEY SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER JA 22 May 1995

[1995] NSWCA 234

Sheller JA. (On application for Stay)

The claimant, Kayell Pty Limited, appeals against an award made by his Honour Judge Burke in the Compensation Court on 23 June 1994 in favour of the worker, who is the respondent in this appeal and the opponent to this application, Peter Fahey.

The claimant seeks an order that the award of Burke CCJ pursuant to s 60 of the Workers Compensation Act 1987 be stayed pending determination of the appeal.

The application is supported by an affidavit of Thomas Kimpton Sprange which notes that on | August 1994 Priestley JA granted a stay in respect of Burke CCJ's award pursuant to ss 66 and 67 of the Act. It appears also from the affidavit that at this time the s 60 expenses amounted to approximately $150,000.

I am informed that the appeal has been set down for hearing on 16 June 1995 and is likely to take about two hours.

The appeal raises the question as to whether Burke CCJ was correct in finding that the respondent was injured at the time or in the manner that he claimed or whether the injury was work related. It follows that if the appeal is successful, the order under s 60 must be set aside.

There is evidence that if the amount is paid there would be no basis upon which the appellant, if successful, would recover it.

In this regard a contrast can be drawn with s 38 of the Compensation Court Act which prevents stay orders being made in respect of awards for weekly payments but sets up a mechanism whereby a successful appellant can recover the amount of weekly payments paid against a statutory authority.

Mr Sorby, who appears for the respondent, opposes the granting of a stay. He referred to Lovett Building Co Pty Ltd v Burns (1991) 26 NSWLR 37 at 39 and following where Kirby P discussed when a stay under s 38 will be granted. Mr Sorby pointed out that the present application is novel. There is no reported case which deals with the circumstances in which a stay of a s 60 award should be made.