C & S Insulation Services Pty Limited v John Clive Copley [1997] ACTSC 2 (10 January 1997)

SUPREME COURT OF THE ACT

C & S INSULATION SERVICES PTY LIMITED v. JOHN CLIVE COPLEY
No. SCA 36 of 1996
Number of pages - 12
Appeal - Contract - Jurisdiction

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Appeal - appeal against interlocutory decision of the Magistrates' Court to make an interim award to restore workers compensation payments - termination of compensation payments without an order of the Court.

Contract - Workers Compensation Act 1951 (ACT) - worker - sub- contractor.

Jurisdiction - jurisdiction of Magistrate to make an interim award - right of appeal from Magistrate's decision - court's discretion to extend time to file Notice of Appeal - power of Magistrates' Court to hear a matter referred for arbitration - whether an interim award may be made without the respondent to an application for a final award having the opportunity to cross-examine witnesses and tender evidence in response - difference between the conditions to be fulfilled by a court when granting interim or final relief.

Words & Phrases - "worker" - "award" - "decision" - "order".

Workers Compensation Act 1951 (ACT), ss6, 24, 26, 26E, Schedule 4 r6A Workers' Compensation Rules, Rules 12 and 13 Magistrates' Court (Civil Jurisdiction) Act 1982, ss282C(2), 387(2), 389, 421 ACT Workmen's Compensation Ordinance 1951 Williams, Supreme Court Practice Vol 2, 2nd Ed, Butterworths [50.6.40], 2199-2200

Moore & White Pty Ltd v Mitojevic (1980) 35 ACTR 39 David Jones (Aust) Pty Limited v Arauner (1980) 36 ACTR 8 David Jones (Canberra) Pty Ltd v Zapasnik (1982) 42 ACTR 6 Department of Social Security v Chaney [1980] FCA 87; (1980) 31 ALR 571 Daroczy v B & J Engineering Pty Ltd (in liq) & Anor (1986) 67 ACTR 1 Western Australian Coastal Shipping Commission v Wallner (1980) 30 ALR 415 Barbaro v Leighton Contractors Pty Ltd (1980) 30 ALR 123 Ferguson v University of New South Wales (1983) 49 ACTR 15 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Clements & Marshall Pty Ltd v Field Peas Marketing Board (Tasmania) [1947] HCA 61; (1947) 76 CLR 401 Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 A v Hayden (No. 1) (1984) 59 ALJR 1 Trade Practices Commission v Mobil Oil Australia Ltd [1984] FCA 363; [1985] 4 FCR 296 Geoffrey W Hill & Associates v King (1992) 27 NSWLR 228 R v Lewis [1988] HCA 24; (1988) 165 CLR 12

HEARING

CANBERRA, 30 October 1996 10:1:1997

Counsel for the Appellant: Mr G Lunney

Instructing solicitors: Allen Allen & Hemsley

Counsel for the Respondent: Mr C Erskine

Instructing solicitors: Clayton Utz

ORDER

THE COURT ORDERS THAT:
The appeal be dismissed.

DECISION

HIGGINS J
1. This is an appeal by the appellant against a decision of Magistrate Fryar, made on 15 May 1996, to make an interim award in favour of the respondent.

2. The proceedings relate to a claim by the respondent that, on 23 December 1992, he suffered personal injury arising out of or in the course of his employment with the appellant. The injury was a right heel pain aggravated by performance of his work as a plasterer.

3. He claimed to have become, as a result, totally incapacitated for work. In late February or early March 1993, following a claim lodged on 28 January 1993, the appellant's workers compensation insurer, C E Heath Casualty & General Insurance Ltd (Heath), accepted the respondent's claim and commenced weekly payments of compensation, also paying relevant medical expenses.

4. On 7 May 1993, Heath wrote to the respondent inviting him to agree that he was "no longer totally incapacitated for any form of work". In default of that agreement being advised within 14 days, Heath proposed "to take necessary legal steps to cease payment of compensation".

5. It appears that no such steps were taken. Payments of compensation continued.

6. It also appears that responsibility for the claim then became transferred to H I H Winterarthur Insurance (Winterarthur). That company wrote to the respondent on 29 March 1996. However, it made no reference to any change in the respondent's physical capacity for work. It said, Information now in our possession indicates that you were not in fact an employee at [23 December 1992], rather a sub- contractor. The initial payment of workers compensation was made to you under a mistake of fact and should not have been made. If you disagree that you were not a sub-contractor at the date of the injury, please advise within 7 days.

7. Winterarthur advised that payments would cease, apparently in any event, after 14 days.

8. The last sentence quoted is greatly confused by a double negative. The "information" referred to is not particularised. Even if the respondent had, in truth, been a sub-contractor, he would, nevertheless, be entitled to be regarded as a "worker" for the purposes of the Workers Compensation Act 1951 (ACT) (the Act) if he was a sub-contractor of the class referred to in s6(3) of the Act. That sub-section provides, Where a contract to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor's own name), or to perform any work as an outworker, is made with the contractor, who neither sublets the contract, nor employs workers, the contractor shall, for the purposes of this Act, be deemed to be a worker employed by the person who made such contract with the contractor.

9. In fact, payments were terminated on or shortly after 3 May 1996. On 9 May 1996, as a consequence of this, the respondent applied by Notice of Motion to the Magistrates' Court for orders that weekly payments of compensation be resumed and that his costs be paid on an indemnity basis.

10. In paragraph 9 of the affidavit in support of that application, the respondent deposed to facts which would, if accepted, clearly bring him within s6(3) of the Act as a "worker".

11. On 13 May 1996, an affidavit was sworn on behalf of the appellant. The deponent asserted that the respondent, when engaged to do work for the appellant was so engaged otherwise than as an employee. He was free to work for other persons who wished to engage his services. He was required only when work was available. Payment was weekly and tax was deducted on the prescribed Payment Scheme basis at a flat rate of 20%.

12. It is clear to me that the deponent did not address the question whether the respondent, though a sub-contractor, was deemed to be a worker by virtue of s6(3) of the Act.

13. The motion came before Magistrate Fryar on 14 May 1996. Both the appellant and the respondent were represented by counsel.

14. Mr Lunney, for the appellant, took exception to the absence of any initiating process seeking an arbitration to settle the matter at issue between the parties. He referred to s24 of the Act which provides, All matters and questions (other than prosecution for offences) arising under this Act shall, where no other provision is made in this Act, in the absence of agreement, be settled by arbitration in accordance with Schedule 4.

15. The unilateral termination of compensation payments to a "worker" is unlawful. Such termination may only be lawfully effected by an order of the Magistrates' Court made pursuant to s26E of the Act. No such order was or has been made.

16. Mr Erskine, for the respondent, submitted that the proper course was for an interim award to be made followed by an application by the appellant to terminate payments in due course if it considered it had cause so to do. It was unnecessary, in his submission, for there to be a formal application for arbitration filed and served but he indicated that the respondent would do so if it was considered necessary.

17. In fact, on that day an application by the respondent seeking the resolution of certain questions and a consequential award of compensation was filed in the Magistrates' Court. It accorded with Form 1 in the First Schedule to the Workers' Compensation Rules. Those Rules are made (or adopted), not pursuant to the Act, but pursuant to the Magistrates' Court (Civil Jurisdiction) Act 1982, s421.

18. Such Rules must not be inconsistent with the Act (see s421(1)). Thus, if the Rules conflict with a provision in Schedule 4 of the Act, the latter must prevail to the extent of any inconsistency.

19. Having heard that argument, the matter was adjourned by Magistrate Fryar to the following day. Her Worship intended, as she stated, to decide the application of the respondent for an interim award restoring his weekly payments pending resolution of the substantive application which his counsel had indicated would be filed later the same day.

20. On 15 May 1996, her Worship made her decision. She noted that there was before her the application for arbitration in accordance with Form 1 of the Rules. She noted that the application to be immediately decided was for an interim award. Her Worship then proceeded as follows, The evidence that I have before me is the affidavit of John Copley which on face value quite clearly establishes on a prima facie level that he was receiving payments in the form of workers compensation payments and that those payments were terminated on the face of it illegally under the terms of the Act if the payments had been received for more than 12 months and it was not open to the insurer to unilaterally terminate payments without an award from the court. On that basis I think it is appropriate to grant the application and make an interim award in favour of the applicant with weekly payments to resume and continue until the determination of the arbitration ...

21. Counsel then appearing for the appellant raised no objection to her Worship embarking on the course which she then followed.

22. Her Worship made no reference to the affidavit of Mr Casson, which had been filed on behalf of the appellant. However, that affidavit, even if accepted in full, could not have altered the strength or cogency of the prima facie case for relief made out by the respondent. I will refer to this aspect of the matter in more detail later.

23. On 11 June 1996, the appellant filed Notice of Appeal against her Worship's decision to make the interim award.

24. A number of specific objections were raised to her Worship's decision. Broadly, it was submitted that her Worship lacked either substantive or procedural jurisdiction to support the course she took. Further, it was objected, she had proceeded beyond the preliminary issue of jurisdiction without adverting to the need to give the appellant an opportunity to contend that, even if she could make the order, she ought not do so and, as a result, had proceeded to make the interim award in defiance of the rules of natural justice.

25. There is a preliminary issue as to the competence of this appeal. Her Worship did not purport to do other than make an interim award. She made no final findings and pronounced no final orders. Her decision was, unarguably, an interlocutory one. The appellant is not precluded, on any substantive hearing, from inviting the court to reject each contention of fact or law relied on by the respondent as supporting his application for an interim award.

Competency of Appeal 26. A right of appeal is conferred by s26(1) of the Act. That provides, Where ... the Court gives a decision or makes an order or award with respect to any matter which may be or is required to be settled by arbitration under this Act, any party to the arbitration may appeal from the decision, order or award to the Supreme Court.

27. In Moore & White Pty Ltd v Mitojevic (1980) 35 ACTR 39, Kelly J held that the making of findings, whether as to facts or law did not amount to an "award" within the meaning of this sub-section.

28. His Honour accepted, however, that each of the findings which had been made was "a decision" in the sense of, at 43, ... expressing a firm finding on a matter in issue, a finding from which, as I understand the position, he could not be expected to resile.

29. His Honour considered that the term "order" connoted "matters which are ancillary to the hearing of the arbitration" (44). Even though no award was pronounced or made, there had, in that sense, been preliminary "decisions" and "orders" from which an appeal lay but the appellant was out of time so to do. Thus, to gain a right of appeal, the appellant had to await the making of an "award". That, his Honour held, was the formal and complete document finalising the issues between the parties. A filing of draft minutes thereof was commended as a means of facilitating the process, see also David Jones (Aust) Pty Limited v Arauner (1980) 36 ACTR 8. However, until the final document was duly signed by the arbitrator, there was no "award".

30. That decision was followed by Gallop J in David Jones (Canberra) Pty Ltd v Zapasnik (1982) 42 ACTR 6.

31. It follows that, so long as the orders made by Magistrate Fryar were made "with respect to any matter which may be or is required to be settled by arbitration", then it was open to the appellant to appeal against the orders within 21 days of them being made.

32. The appeal provided for under s26 of the Act is equated with an appeal of the kind specified in sub-section 282C(2) of the Magistrates Court (Civil Jurisdiction) Act 1982 (ACT) (MC(CJ) Act). In 1994 the number of that latter sub-section was altered to 387(2). That sub- section provides that this appeal, if instituted in accordance with s389, is as of right. No distinction is drawn between appeals from final orders or from interlocutory orders. Of course, no appeal lies merely from a finding unless it is also a "decision". There must be a "decision, order or award", see Department of Social Security v Chaney [1980] FCA 87; (1980) 31 ALR 571. However, whether the "decision, order or award" constitutes the final disposition of the proceedings or is interlocutory or ancillary thereto is, for present purposes, immaterial.

33. Section 389, whilst requiring filing of a notice of appeal within 21 days after the date on which "the judgment or order appealed from took effect", permits that time to be extended by this Court. That may be done nunc pro tunc.

34. The interim award is clearly the result of a "decision" and is an "order" even if it is not an "award". The decision and consequential order or award of the learned Magistrate, the subject of this appeal, were each made on 15 May 1996. It follows that the notice of appeal was required to be filed on or before 5 June 1996. It was not filed until 11 June 1996. However, on 11 June 1996, the appellant gave notice of its intention to seek an extension of time as contemplated by s389 of the MC(CJ) Act.

35. That delay was not caused, so the evidence suggests, by a late decision to appeal. Rather, it was due to late receipt of a settled Notice of Appeal from counsel. That is not a circumstance which compels a favourable exercise of the discretion to extend time. Neither does it compel a refusal, even if it might be concluded that the party disadvantaged by a lack of prompt action from his, her or its legal advisers could sue those advisers for loss arising from such lack of prompt action.

36. The relevant considerations are those adverted to by Kelly J in Daroczy v B & J Engineering Pty Ltd (in liq) & Anor (1986) 67 ACTR 1.

37. The most important considerations are the length of, and explanation for the delay and the prejudice to the other party as a result. In this case, whilst the delay is not extreme, a failure to appeal would have implied acceptance of the interim award leaving it to the arbitrator to resolve the issue raised by the insurer in due course. The insurer would then be subject to the considerable spur to expedition created by s26E of the Act.

38. I am satisfied, therefore, that a question as to whether the appellant was entitled to terminate weekly payments to the respondent, is a matter or question arising under the Act. It is, therefore, required to be "settled by arbitration" pursuant to s24 of the Act. So also is a "question" as to whether an interim award or order should be made. Therefore, s26 of the Act applies so as to confer a right of appeal against the making of an interim award or order as well as to a final award or order.

39. Thus, subject to leave being granted to extend time for appeal, this appeal is competent.

Power to make an Interim Award. 40. That the learned Magistrate had power to make an interim award is beyond doubt. The High Court found such a power to be implicit in the terms of the similarly worded Northern Territory provisions, see Western Australian Coastal Shipping Commission v Wallner (1980) 30 ALR 415.

41. The Full Federal Court in Barbaro v Leighton Contractors Pty Ltd (1980) 30 ALR 123, had already so decided in relation to the ACT Workmen's Compensation Ordinance 1951. That legislation, though since amended, remains similarly worded and in all respects presently relevant.

42. It should be noted that in each case the provisions of the legislation were construed so that an employer (or deemed employer) who had voluntarily made payments apparently under the legislation, although no award had been made, was not entitled to cease such payments without an agreement or award being made. So to do was to act unlawfully. It was then open to the worker to apply for an interim award, see Ferguson v University of New South Wales (1983) 49 ACTR 15.

43. Section 26E of the Act now makes that right express. If there is a question raised as to whether the respondent was a "worker", once the "employer" had paid compensation apparently under the Act, s26E would disentitle the "employer" to discontinue those payments without an agreement or award authorising that discontinuance, the "worker" was entitled to apply for, and the Court was entitled to make, an interim award to restore those payments until a contrary agreement or award was made.

The appellant complains of a lack of "arbitration" preceding the making of the interim award 44. The appellant submits that even if there was jurisdiction to make an interim award, the procedure her Worship adopted to make this interim award was fatally flawed. This is partly based on a lack of formality in the filing after the hearing rather than before of an application form and also on the manner in which evidence was received at the hearing. The appellant also relied in part on an alleged lack of opportunity to tender evidence in reply and to cross-examine the respondent whose affidavit had been filed in support of the application for an interim award.

45. Insofar as the submission relies on the absence of an application in the form required by the Rules, in my view it must fail. There was a primary application for substantive relief filed before her Worship made her interim orders. It would have been otiose for the parties to have been required thereafter to repeat their submissions which had assumed that the application would be filed. Further, if the respondent was a person whose payments under the Act had been unilaterally terminated, he was not required to make any application. He had an existing legal entitlement to the continuance of weekly payments. The onus was on the employer, or deemed employer, to obtain an agreement or award terminating such payments.

46. Of course, that did not prevent, or render it inappropriate for him to apply for a declaration as to his entitlement and have it expressed as an award. As he had no existing award to enforce, it might well be desirable to adopt that course in order to gain access to the enforcement provisions of the Act rather than to actuate alternative remedies.

47. It is by no means clear that the Notice of Motion as filed was not an appropriate initiating process. It is, however, unnecessary to decide that question. The determination of a question submitted for decision is an "arbitration". Generally, the procedure for determining a "question" referred for arbitration is "within the discretion of the Court" (Schedule 4, r6A). The Court is enjoined to act "according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms" (Schedule 4, r6A(c)). Those provisions are expressed to be subject to the Rules. Rules 12 and 13 do require certain formalities for a request for the determination of a question by arbitration. Those formalities should, of course, be applied as a matter of substance not mere form.

48. A question arises as to whether an interim award may be made without a full opportunity for a respondent to an application for a final award having the opportunity to cross-examine witnesses and tender evidence in response.

49. That a respondent has such a right on the hearing of an application for a final order is undoubted, see Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321.

50. However, if one takes the example of proceedings for an injunction, it is clear that the integrity of the legal process and the concept of justice to a respondent to such a proceeding is not diminished by the availability of interim relief even on an ex parte basis. That latter option was not availed of in the present case. To proceed to grant relief on that basis would have been appropriate only if "irreparable or serious mischief" would result otherwise and then only on terms, protecting by undertaking as to damages or otherwise, the interests of any party adversely affected. Such a party must also be granted an early opportunity to set aside such an order, see Williams, Supreme Court Practice Vol 2, 2nd Ed, Butterworths [50.6.40], 2199-2200. The interim order in the present case was made on notice. Whether such an order should be made is an interlocutory matter.

51. "Equity, good conscience and the substantial merits of the case" in the context of an application for interim relief do not require the same conditions to be fulfilled as for the final disposition of the matter.

52. That is for the reason that the grant or refusal of interim relief does not determine whether final relief should be granted or refused. A grant of interim relief merely affirms that there is a serious question to be tried between the parties as to whether the applicant has a good case for final relief; that the balance of convenience favours the making of the interim order; that if the interim order was not made serious or irreparable harm might be occasioned to the applicant, see Clements & Marshall Pty Ltd v Field Peas Marketing Board (Tasmania) [1947] HCA 61; (1947) 76 CLR 401; Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618; A v Hayden (No. 1) (1984) 59 ALJR 1.

53. It is appropriate to grant interim relief where the conduct complained of is alleged to constitute an unlawful act, see Trade Practices Commission v Mobil Oil Australia Ltd [1984] FCA 363; [1985] 4 FCR 296. That is, of course, subject to the other conditions appropriate for the grant of interim relief.

54. Whether there is a serious question to be tried does not require proof by evidence sufficient to finally prove the claim. That there is such a question or prima facie evidence available to support the claim may appear from evidence which would be inadmissible on a final hearing, see Geoffrey W Hill & Associates v King (1992) 27 NSWLR 228.

55. It follows that it is not usually appropriate to permit a respondent to an application for interim relief to challenge the facts on which the applicant relies to establish a prima facie case raising a serious question to be tried. The fact that a respondent would dispute those facts merely supports the view that there is a serious question to be tried rather than the contrary. The making or continuance of the interim award in this case only determines that, on the issues of fact and law raised by the respondent, there is a reasonable prospect that final relief would be granted if those matters were found in his favour and the balance of convenience favours the grant or continuance of the interim relief sought.

56. It is on those issues, not whether final relief should be granted, that a respondent is entitled to a fair opportunity to be heard. It follows that, for example, it may be inappropriate to permit a respondent to use the occasion to explore issues as to credit. Cross- examination as to credit would, ordinarily, be irrelevant, as would evidence tending merely to dispute the facts on which the applicant relies to support a claim that there is a serious issue to be tried.

Was the hearing conducted fairly to the appellant by the learned Magistrate? 57. The appellant's complaint is that on the hearing of the application, whilst it had notice of it and appeared by counsel, it had raised only a jurisdictional question for decision. Counsel submitted that the learned Magistrate, having decided that issue adversely to the appellant, then denied to the appellant a fair opportunity to contend that, nevertheless, an interim award should not have been made.

58. A perusal of the transcript of the proceedings before Magistrate Fryar indicates that Mr Lunney, for the appellant, submitted that as there had been no matter then submitted for arbitration, her Worship could not grant the relief sought. As I have noted, that omission, if omission it be, could have been remedied, as it was, by the appropriate form of application being filed. Thus, whether her Worship could have granted an interim award in the absence of the prior filing of an appropriate form of application does not fall for decision.

59. In reply to that submission, however, Mr Erskine, for the respondent, adverted to the provision of s26E of the Act. He submitted that, prima facie, the appellant had acted unlawfully in terminating unilaterally the payments then being made to the respondent. He referred to Ferguson's case (supra) as judicial recognition of the right, in those circumstances, there being no pre- existing award to enforce, to seek an interim award. He referred to the urgent need for such an award. That urgency was not spelled out but it could be inferred from the respondent's affidavit that he and his family would suffer serious financial hardship if payments were not resumed.

60. Mr Lunney responded to this, reiterating his objection on jurisdictional grounds. He did advert to the situation as it would be if proceedings for final relief were to be formally commenced. He said, In those proceedings it would be necessary for the applicant (the respondent) to establish that there were payments, that those payments had the character of payments of compensation, that the person to whom they were paid was a worker and was a person who was a worker employed by the person named as the respondent. So, there are at least in those matters that I have mentioned, four matters that would have to be matters submitted for arbitration and eventual determination between [sic "before"?] any final or interim award could be made.

61. If, by that submission, Mr Lunney intended to convey that each of those matters would need to be established on the balance of probabilities before an interim award could be made, that is plainly incorrect. It is only necessary that an applicant show that there is a serious question to be tried as to whether those matters should be determined favourably to such an applicant. The affidavit of the respondent clearly did establish that the respondent, prima facie, had evidence to support a conclusion in his favour on each of those issues.

62. Without conceding that he was obliged to do so, however, Mr Erskine, in further response, undertook to file a formal application for the final determination of those questions. He then addressed the substantive merits of the respondent's application as supported by the latter's affidavit. There is no doubt that, if accepted, the assertions of fact and law made by the respondent would found a claim to be entitled to continuance of weekly payments pursuant to s26E of the Act. The onus would then have been on the appellant to apply for and make out grounds for cessation or suspension of those payments.

63. In reply to Mr Erskine's submissions on the substance of the matter, Mr Lunney conceded that, Mr Copley's evidence contains evidence of a number of matters which, if they were established by arbitration, would perhaps entitle him to continuing payments.

64. However, he continued to submit that the matter should be referred to arbitration and be listed in the next bi-monthly list accordingly. He did not appear to acknowledge that her Worship might, as arbitrator, find that the grounds for making an interim order were established by the respondent's affidavit.

65. Her Worship then adjourned the matter for decision to the day following. In the course of her reasons delivered on that day, her Worship first acknowledged that a formal application had been filed on behalf of the respondent. She then rejected the view that the fact that she had entertained argument on the motion for an interim award before the formal filing of that application was a material obstacle to the making of an interim award. I entirely agree with that view.

66. She then adverted to Mr Copley's affidavit and found that it, ... on face value quite clearly establishes on a prima facie level that he was receiving payments in the form of workers compensation payments and that those payments were terminated on the face of it illegally under the terms of the Act if the payments had been received for more than 12 months and it was not open to the insurer to unilaterally terminate payments without an award from the court. Her Worship then granted the application with costs. The costs order was not opposed.

67. I entirely agree with her Worship's construction of the respondent's affidavit and her conclusion as to the consequences flowing from it. It will be observed that her Worship did not express herself in terms of making final determinations of fact or law. She, quite correctly in the context of an application for an interim award, expressed herself in terms of finding that prima facie evidence existed which warranted the making of an interim award.

68. It is true that the appellant was never, in terms, asked to address the consequences of a finding that her Worship had jurisdiction to make an interim award. However, her Worship could be forgiven for concluding that the only issue the appellant had to raise in opposition to the making of an interim award was the procedural objection that the court's jurisdiction had yet to be formally invoked.

69. Her Worship was justified in concluding on the material before her, that the only substantive issue the appellant had to raise was the status of the respondent as a "worker". If the respondent's description of his work history proved accurate, that status would inevitably follow as a matter of law. It was, at least, seriously arguable that it would not have availed the appellant to tender contrary evidence even if there was any. That evidence would not have been capable of challenging the view that there was a serious issue to be tried. The balance of convenience, again prima facie, clearly favoured the respondent.

70. It seems to me that the appellant clearly left her Worship with the impression that there was no other issue before her than her jurisdiction to make an interim award with a possible secondary submission that she should, as a matter of discretion, refrain from doing so until the application for final relief had been filed and the appellant could make a considered response to that application. That the appellant did not, in fact, seek to do. No doubt that was because that application raised no question that had not already been addressed. Her Worship was required to balance the hardship and inconvenience to the respondent and his family in having no income against the appellant's convenience in making a considered response to the substantive application free from the burden of an interim award.

71. If that was the thrust of Mr Lunney's submissions, it was entirely open to her Worship to reject them and make the interim award. The respondent, it seems to me, had made out a compelling case for such relief. It outweighed the possible injustice to the appellant in making payments to which the respondent might be found not entitled for a little longer than otherwise.

72. To deny the relief in question, it would have been necessary for the appellant to demonstrate that the respondent's prospects for a favourable outcome were such that he had no serious prospect for success or that he and his family would suffer no meaningful hardship contrary to his unchallenged assertion. Nothing submitted by Mr Lunney to her Worship gave the slightest hint that any such proposition could be made good.

73. More specifically, Mr Lunney submits before me that his client was denied the opportunity to cross-examine the respondent on his affidavit and to call evidence in reply. As to the latter, he pointed to the affidavit, filed but not formally tendered, of Mr Casson, a consultant to the appellant.

74. Even assuming that her Worship was in error in not formally extending to the appellant an opportunity to seek to cross-examine the respondent and to tender Mr Casson's affidavit, I am not persuaded that the denial of those opportunities could have altered the result, see, for example, R v Lewis [1988] HCA 24; (1988) 165 CLR 12.

75. It was by no means inevitable that her Worship would accede to an application to cross-examine the respondent. The respondent had only to point to the availability of evidence which, if accepted, would support the view that there was a serious issue to be tried. He bore the onus, it is true, of satisfying her Worship that the balance of convenience favoured the making of the interim award. However, there is nothing to indicate that the appellant had any challenge to make to that aspect of the matter. Thus the loss of opportunity to cross- examine the respondent and formally tender evidence seems to me to make no practical difference.

76. The affidavit of Mr Casson, even if it had been accepted, discloses no matter inconsistent with the prima facie case raised by the respondent. Even if it had contradicted the respondent's assertion that he had not, in fact, performed any sub-contract work for third parties, it would still leave a serious issue for trial. His freedom to do such work is not material. Mr Casson's affidavit is directed towards an issue as to whether the respondent was an employee or a sub-contractor. It did not address the issue whether, although a sub-contractor, he was deemed to be a worker by virtue of s6A of the Act.

77. In any event, if the appellant came into possession of evidence which would demonstrate, without a serious likelihood of challenge, that the respondent had never been a person to whom the Act applied, it could apply to discharge the interim award.

78. For the foregoing reasons, I am satisfied that this appeal must be dismissed. The interim award will stand. I will hear the parties as to costs. 1