kea93009.J
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

No. SC 32 of 1992

IN THE MATTER OF the Work Health Act

AND IN THE MATTER OF an appeal from an interim determination of the Work Health Court

BETWEEN:
MANNING SERVICES AUSTRALIA
..PTY LTD
Appellant

AND:
PETER PULMAN
Respondent

CORAM:	KEARNEY J

REASONS FOR DECISION
(Delivered 2 April 1993)

This is an appeal from an interim determination of the Work Health Court in Darwin on 4 February 1992.
Background to the interim Determination
The respondent had worked on oil rigs for Maritech Ocean Services Ltd (herein "Maritech") over several years.
His services were made redundant by that company on 17 June 1991.	Late in June 1991 an advertisement was published by the appellant in a local newspaper, inviting persons interested in a variety of jobs clearly connect d with oil

drilling, to apply to the appellant at premises at Pruen Road Berrimah.	The respondent attended at these premises early in July.	He entered into the appellant's employment, and suffered injury on an oil rig on 25 August in the course of that employment.
The respondent came ashore the day after his accident, 26 August 1991, and shortly afterwards filed his claim for compensation.
The respondent was clearly - and in my opinion very understandably in the circumstances - confused as to whether he had been employed on this occasion by Maritech or by the appellant; he carried out his previous duties on the rig as head cook.	Indeed, the workers' compensation insurer clearly thought as at 30 September 1991 that he was employed by Maritech.	The accident report bore the logo of Maritech, and his time sheet in August 1991 (Exhibit 17) bore Maritech's name in the heading.	Clearly, there were very close links between Maritech and the appellant; one Michael Capelle deposed that he was a director and chief executive officer of both companies.
Although the-contract of employment is dated
3 July 1991 there was evidence before his Worship which tended to suggest that it may in fact have been signed later.	This appeared in the following way.	The respondent testified on 30 December 1991 at p45:-
"HIS WORSHIP:	Did you say you first heard of Manning Services after you signed on?---Yeah, because we were under the impression it was Maritech.

MR MORRIS:	When you say "sign on" what do you mean?---Well, we went into the office [in July 1991] that still had Maritech signs up, Maritech letterheads, paperwork was in the office and actually we didn't sign on until it was sent out to the rig on the second hitch.

When was the second  hitch?---In August.	All the paperwork for the first hitch and second hitch for signing on  and signing  off were sent out to the rig on the second hitch towards the end of the· second hitch."
Later (at p47) he specified this as about 19th or 20	August, which was some 5 or 6 days before his accident.
Mr Hiley QC of counsel for the respondent before me later submitted that this evidence raised an issue which could only be resolved at trial, but which suggested that the appellant was "carrying on business" in the Territory.
The respondent was injured in an accident on the oil rig on 25 August 1991.	About 13 September he signed a claim form at the offices of Manufacturers Mutual Insurance Ltd (herein "MMI").	It became clear only during the hearing of the appeal that MMI was in fact at the time the workers' compensation insurer for the appellant, as well as Maritech, at all material times; the fact that this was not made clear before his Worship accounts for what appears to be his erroneous finding that the appellant "did not have a Northern Territory workers' compensation insurance policy" (see p7).
On 23 October 1991 the respondent gave a statement to MMI's assessors, in which he gave details, inter alia, of the hardship he was suffering.	At that time he still believed his employer was Maritech.	He said:

11 14.	I have not been paid by Maritech since I have been off work; I have been receiving sickness benefits since not long after I came off the ship. My benefit is a single person's benefit of $296.90 per fortnight.

15.	I am quite destitute and would appreciate early attention to my claim.	I am behind in my rent, car and loan payments.	I have only a small amount of money left in the bank."
In his affidavit of 23 December 1991 in support of his application for an interim award the respondent amplified this aspect, viz:-
117.	I am a single person with no dependants.	I have outgoings of $260.00 per week and am surviving on a Social Security payment of $296.00 a fortnight.	I have used $8,000.00 worth of savings that I accumulated between July 1991 and the current time.

Two weeks ago I received a letter from the Lands & Housing Division threatening to evict me from my premises.	- - -

As a result of the matters referred to above my financial situation and ability to live in appropriate housing has become parless [sic, parlous] and I therefore seek an order from this Honourable Court that my employer pay me interim payments of compensation until such time as my entitlement for compensation can be determined."
The interim Determination of 4 February 1992
On 4 February 1992 the learned Magistrate ruled on the application by the-respondent for interim payment of workers' compensation under the Work Health Act (herein "the Act") pending the determination of his claim.	His Worship set out the various contentions put to him, succinctly:-
"The Worker states that he was injured on an offshore oil rig on the 25th August 1991. The First Respondent [Maritech Ocean Services Ltd] denies that it was the employer of the Worker at the relevant time, the Second Respondent [the appellant] admits that it was.	Both Respondents deny incapacity [on the part of the worker] and liability for compensation payments".

His Worship identified 2 preliminary questions which required to be answered.	The first was: which entity was the respondent's employer on 25 August 1991, Maritech or the appellant, within the meaning of the Act?	As to this his Worship found as follows:-
"The [appellant] admits that it was the employer. The Worker asserts that both Respondents were employers by virtue of the operation of section 3(4) and section 127 of the Work Health Act.

For reasons which I will shortly set out in brief I find that the [appellant] at least, was an employer of the Worker."
The appellant had admitted in parl of its Answer of
14 January 1992 that.it was the +espondent's employer, at all material times.	His Worship continued:-
"The question whether [the appellant] was the only employer or a joint employer by virtue of the operation of sections 3(4) and 127 of the Act is a question for the substantive hearing.	On the evidence before me at this stage I am not prepared to find that the First Respondent was in fact an employer of the Worker as at 25 August 1991.	It is clearly a triable issue - - -.

I find that the [appellant] was an/the employer of the Worker for the following reasons:

The Worker had been employed by the First Respondent.	The contract of employment with the First Respondent appears to have come to an end in mid-June 1991 (Exhibit 4).
The (appellant] placed an advertisement in a Northern Territory newspaper on the 29th June 1991 to which the Worker responded (Exhibit 18).
The Worker made an application to the [appellant] for employment on the 3rd July 1991.	The form of that application was headed "Manning Services Australia Pty Ltd" (Exhibit 10).

On the 8th July 1991 the Worker signed a "Offer/Acceptance of employment" with the [appellant] (Exhibit 11).

On the 8th July 1991 the Worker signed an "Engagement Notice" headed "Manning Services Australia Pty Ltd".

The Worker's Australian tax office employment declaration, signed and dated by him, bears the employer's business name and postal address as Manning Services Pty Ltd, PO Box 276, Belmont WA 6104.
The payslip for the period 15 July to
28 July, unlike the earlier payslip (Exhibit
13) is not headed "Maritech Ocean Services Pty Ltd".

The Worker was provided with a "Manning Services Australia Pty Ltd" identification card which he signed and which was dated the 8th July 1991.11
The appellant did not seek to controvert the finding that it was the respondent's employer, a fact it had already admitted (p5).
The second preliminary question which his Worship identified was whether the appellant was "carrying on business in the Territory", for the purposes of s57(2) of the Act.	Section 57(2) deals with circumstances in which compensation is not payable, viz:-
11(2) Compensation is not payable under this Part[V] unless any 2 of the following apply:

the worker to or in relation to whom it is payable was a resident of the Territory at the time the relevant incident occurred;

his employer was a resident of or carrying on business in the Territory at the time the relevant incident occurred;

the relevant incident occurred in the Territory."

As to these prerequisites to liability, his Worship noted that it was common ground that the "relevant incident" had not occurred in the Territory, so (c) did not apply.	He

accepted the worker's evidence that he was a resident of the Territory on 25 August 1991, so (b) applied.	This meant that unless it was established in terms of (a) that his employer was then "carrying on business in the Territory", compensation under Partv was not payable, a result which would mean no interim payment should be made.		On this aspect his Worship found:-
"There is substantial evidence that the First Respondent was "carrying on business" in the Northern Territory.	There is less evidence that the [appellant] was doing so but there is some evidence to that effect.	It is:

The application form (Exhibit 10) is headed: "Manning $e:i;-vices Australia Pty Ltd, Office:·Lot 1865 ·Pruen Road,
Berrimah Darwin 0828, PO Box 1955
Berrimah Darwin 082811  •	(my underlining)

The advertisement (Exhibit 18) which I accept the Worker saw and cut out, states inter alia: "Application forms are available at the office: (my underlining).	At the bottom of the advertisement it states "Lot 1865 Pruen Road Berrimah NT 0828".

The Worker's uncontradicted evidence as to the following:

that after the accident on 25 August 1991 he took medical certificates (from Dr Welsh) to an office in Pruen Road Berrimah;
that he signed the Office [sic, Offer]
/Acceptance (Exhibit 12) and the Engagement Notice either at, or having received them from, the office at Berrimah on the 8th July 1991.11
His Worship concluded, as to s57(2)(c):-

"On all of the evidence, particularly that referring to the office at 1865 Pruen Road Berrimah, it is in my opinion open to conclude that Manning Services Australia Pty Ltd was carrying on business in the Northern Territory as of the 25th August 1991 for the purposes of section 57 of the Act.

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I note the evidence from which inferences to the contrary might reasonably be drawn - principally the fact that Manning did not have a Northern Territory workers' compensation insurance policy. However, I am satisfied that there is, at the very least, a triable issue on this point. (emphasis mine)	·
Mr Tippett of counsel for the appellant focussed his attack upon the finding underlined.		He conceded that the appellant in fact held at all material times a Northern Territory workers' compensation insurance policy, and that there was no evidence other than his Warship's (erroneous) conclusion in that respect, to support a positive conclusion that it was not carrying on business in the Territory.	The thrust of his submission was that the evidence adduced-did not support the finding it was open to conclude that the appellant was "carrying on business".	It was common ground that the onus lay on the respondent to prove that the appellant was "carrying on business".
His Worship then turned to the question of the incapacity of the worker, referred briefly to the medical evidence, and held:-
"I find that the Worker is incapacitated for the purposes of return to the work undertaken by him prior to the·25th August 1991."
The question of incapacity is not in issue before me. Having accepted the worker's evidence that he was in financial need, his Worship concluded:-
"I make no specific findings either for or against the First Respondent at this stage.	As I have already said, all issues in relation to it remain open, triable and for the substantive hearing.
I will allow the Worker to amend his application as against the (appellant) to conform to section 104.

I note that the Respondents dispute the Court's power to make interim orders pursuant to section
104 other than by way of section 107. 11
As to this, it appears that the specific question now raised
- whether the Court had power to make an interim order with retrospective effect - was not agitated before his Worship; he continued:-
"I express no view at this stage on the correctness or otherwise of that submission but I note that the Respondents do not argue that section 107 should not apply in this case.

I order the [appellant] to pay weekly worker's compensation payments to the applicant from the date of injury and continuing." (emphasis mine)
The appellant's submissions
Mr Tippett of counsel for the appellant did not seek to argue that the worker was not incapacitated from working by injury.	He conceded that the appellant had employed the respondent at all material times and that the court had power to make an interim award, pursuant to ss94(1)(a), 104(1) and 107(2)(c) of the Act.	He said that the various grounds of appeal in the Notice of Appeal in effect gave rise to only 2 issues:-
Whether there was evidence before his Worship to warrant the finding that there was a serious case to be tried, and that the balance of convenience favoured the making of an interim award; and

whether the interim award could take effect from a date prior to the making of the order.
I deal with these 2 issues in turn.

Evidence to raise a triable issue that the appellant was "carrying on business" in the Territory

Mr Tippett conceded that his Worship's acceptance of the respondent's evidence of his financial need clearly meant there was evidence relevant to where the balance of convenience lay.	In practice, he submitted, issue (a) came down to this: whether there was evidence on which
his Worship could have found that there was "at the very least, a triable issue" as to whether the appellant was "carrying on business in the Territory" at the relevant time.
Mr Tippett took me to various authorities on the
meaning of "carrying on business".	In Luckins v Highway Motel (Carnavon) Pty Ltd (1975) 133 CLR 164 a tourist passenger bus was seized in Western Australia, by way of execution.	It was owned by a Victorian company which conducted interstate bus tours.	The company had no office or place of business in Western Australia but it had incurred debts there for food and accommodation for its passengers in the course of its tours.	The High Court held that as a foreign company it was "carrying on business" in Western Australia.	At ppl78-9 Gibbs J said:-
"The expression "carrying on business" may have different meanings in different contexts.	It
would usually connote, at least, the doing of a succession of acts designed to advance some enterprise of the company pursued with a view to pecuniary gain.	[His Honour then referred to the relevant statutory definition in s344 of the Companies Act 1961 (W.A.) and continued:] Obviously this definition is not exhaustive; for example, there could be little doubt that a company that dealt with property situated in the State for itself and not as an agent would be carrying on business within that state if the dealings were not merely isolated transactions and were done in the course of the business of the company.	- - - Subject to the limits indicated by

[the statutory] provisions, the question whether a company is carrying on business within the State is simply one of fact and must be decided by having regard to all the circumstances of the case. - - - The evidence thus supports the conclusion that for the purposes of its busin ss Trailways despatched busloads of passengers through Western Australia and in the course of so doing entered into commercial transactions with various people in various parts of the State an that it did so not merely on isolated occasions but from time to time during 1973 and the early part of 1974".	(emphasis mine)
It is pertinent to note that the reference to "isolated occasions" stems from the statutory definition.	Mr Tippett submitted that in applying the tests indicated in Luckins the evidence in this case showed that the appellant had not engaged in a sufficient frequency of transactions, or in any transaction at all, such that it could be found that it was "carrying on business" in the Territory.	He referred to the evidence of the respondent attending the premises at Pruen Road Berrimah about 3 July 1991, the premises then bearing the name "Maritech Ocean Services Ltd"; and to the evidence that he had attended those premises after being injured on
25 August 1991, his evidence being that it then appeared to him that the office was being closed down.	He submitted that his Worship had misinterpreted the evidence relevant to the question of the appellant "carrying on business".
I note that his Worship referred at finding no.2 on p7 to the advertisement (Exhibit 18) calling for applications from persons seeking certain specified types of work.	Mr Tippett conceded that the advertisement had been inserted in the newspaper by the appellant.	He submitted, however, that the evidence showed that the appellant had

carried out a single isolated business transaction, and on the basis of what was said in Luckins this did not mean that it was "carrying on business".
I should say that I accept, despite Mr Riley's submissions to the contrary, that to carry out an isolated transaction would not amount to "carrying on business" for the purposes of s57(2)(b) of the Act.	Those words connote activities undertaken as a commercial enterprise in the nature of a going concern; that is, they connote activities engaged in for the purpose of profit on a continuous and repetitive basis.	See generally Hope v Bathurst City Council (1980) 29 ALR 577 at 582, per Mason J.
Mr Tippett submitted that the various matters - the respondent seeing the advertisement, calling at the office premises about 3 July, signing the offer/acceptance notice about 8 July, and taking his medical certificate to the premises after 28 August 1991 - all pertained to one isolated transaction, the employment of the respondent.
Mr Tippett took me to the evidence of the respondent on 30 December 1991.	At that time only the respondent and Maritech were parties to the claim before the court.	In January 1992 further evidence was taken after the appellant had joined in those proceedings; it was common ground that all of the evidence taken in the court prior to that time was to be treated as evidence in relation to all three parties.
Against that evidential background, Mr Tippett submitted that the principles applicable in Australia in

relation to the grant of interlocutory injunctions are now as originally laid down in American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504: that the court must first be
satisfied that there is a serious question to be tried, and then must consider and weigh the factors relevant to deciding where the balance of convenience lies.	Mr Hiley concurs in that proposition, and I accept it; see Castlemaine Tooheys Ltd v South Australia (1986) 660 ALJR 679 at 681.	Mr Tippett submitted that these principles should also be applied when considering whether an interim award should be made under the Act; again Mr Hiley concurs,
and I accept that proposition.	See Mermaid Marine Management v Hall, (unreported, Kearney J, 12 January 1993) at p29.
Mr Tippett stressed the following words from
American ·cyanamid at p510:-
"- - - unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought." (emphasis mine)
He submitted that bearing in mind that the evidence showed that the appellant had engaged in only one isolated transaction, the employment of the respondent, and that the appellant had told the respondent in its Answer in January 1992 that it was his employer and that it carried on business in Western Australia, this was a case where the evidence "fails to disclose that the [respondent] has any

real prospect of succeeding in his claim".	In other words, the evidence adduced before his Worship was such that it could not establish that the appellant was "carrying on business" in the Territory at the material time; that therefore the respondent had no real prospect of success in his claim for workers' compensation because of s57 of the Act; and therefore there was accordingly no serious question to be tried, and an interim award could not be made.
Whether the interim order could be made so as to take effect from a date prior to the order
It will be noted that his Worship had ordered that the appellant pay the respondent interim weekly payments from 25 August 1991, the date of injury, to 3 February 1992. Mr Tippett submitted first that there was no evidence to warrant that order; and, alternatively, there was no power under the Act to make such an order.	This was Ground 4 in the Notice of Appeal.
He conceded that there was power in an application such as this under sl04, to make an interim award under s107(2)(c) which provides:-
11(2)	The	Court or magistrate, at the holding of a preliminary conference, may -

make, vary or revoke an interim determination of a party's entitlement to compensation on such information, evidence and material as is placed before it or him and, except as provided by subsection (4), with or without evidence on oath; - - -" (emphasis mine)

He also ultimately conceded that the respondent had adduced evidence of need and hardship as at the date of his application for an interim payment, 23 December 1991.
His argument proceeded as follows.	First, by analogy with the approach to the grant of an interlocutory injunction, the rights of the parties should not be interfered with further than those necessarily affected by the making of an interim award.	To make an interim award with retrospective operation to the date of the injury disturbs the status quo and is contrary to the basic object of an interim award, namely, to effect justice between the
parties before a determination of liability.	Mr Tippett laid stress by analogy on what was said by Lord Diplock in American Cyanamid at p511:-
"Where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status qua.	If the defendant is enjoined temporarily from doing something that he has not done before, the only effect of the interlocutory injunction in the event of his succeeding at the trial is to postpone the date at which he is able to embark on a course of action which he has not previously found it necessary to undertake; whereas to interrupt him in the conduct of an established enterprise would cause much greater inconvenience to him since he would have to start again to establish it in the event of his succeeding at the trial."
Mr Tippett submitted that the concept of an interim award does not embrace the awarding of compensation prior to the date of the award.	Before an interim award can be made there must first be a finding that there is a serious question to be tried in the claim for compensation, and it must then be determined that the balance of convenience

favours the making of an interim award.		He submitted that there is no authority to support the proposition that an interim award may be made with retrospective effect; that is to say, to take effect from the date of injury instead of the date of making the interim award.	He submitted that any such arrears are properly payable only after the worker has
established liability; ex hypothesi, that has not occurred at the time when an interim award is made.	The "balance of convenience" aspect has to be considered as at the time of
the making of the interim award.	The power to make an interim award is a special power, because it provides for the making of payments before liability to make any such payments is established, and in circumstances where that liability is denied; accordingly, it is to be narrowly circumscribed.
I note that the evidence from the respondent's statement of 31 October 1991 annexed to his affidavit of
23 December 1991 is to the effect that he had been receiving sickness benefit "since not long after I came off the ship"; He was destitute and in (unspecified) arrears with his rent, car and loan repayment .	Mr Tippett submitted that there was no evidence that the respondent had suffered hardship before 23 December 1991; in this respect I note that his statement was made on 31 October 1991 and he had been hospitalized for 3 days from 9 to 12 December 1991.
The respondent's submissions
Mr Hiley QC noted that this was an appeal against an determination in the nature of an interlocutory order.

He submitted that it was more difficult for an appellant to succeed in an appeal against such an order, as opposed to a final determination, because the respondent had borne a lower standard of proof in obtaining it.
He submitted that as the appeal to this court lay under sl16 of the Act and was limited to "a question of law", as long as there was some evidence to support
his Worship's findings, they could not be attacked on
appeal.	He submitted that the appellant had not shown that there was no evidence to support the findings made, and submissions directed to establishing "no sufficient evidence" did not raise a question of law, and could not be entertained. ·It was beyond the power of this court on appeal to reassess the evidence before his Worship.
I noted earlier (p8) Mr Riley's submission that while on its face the respondent's employment document appeared to have been signed early in July 1991, there was evidence that it had been signed about 19 or 20 August 1991. While this raised an issue which could only be determined at the trial, its present significance, in his submission, was that it tended to show that the appellant was "carrying on business" in the Territory.
Mr Hiley took me in detail through the documentary exhibits relating to the respondent's employment and his accident, from which it was clear that there was a close relationship between the appellant and Maritech.	He submitted that taken as a whole there was considerable evidence that the appellant was "carrying on business" in

the Territory.	He also relied on the absence of evidence from Mr Capelle who in his affidavit had not stated that the appellant was not carrying on business; Mr Hiley submitted that his failure to do so meant that an adverse inference was open to be drawn against the appellant.
Mr Hiley submitted that justice required that in the circumstances of the case the interim award be given retrospective effect.
In terms of Luckins, he submitted that the
evidence did not point to the existence of an isolated transaction by the appellant.	In any event, he submitted,
the special definition of "carrying on business" in s344 of the Companies Act (W.A.), which was considered in Luckins, meant that the test of an "isolated transaction" was not appropriate when considering the meaning of "carrying on business" in s57(2)(b) of the Act.	I indicated at ppll-12 that I reject that submission.	If such a test was appropriate, he submitted, the evidence, including the
evidence of the appellant's printed forms, was not consistent with the respondent's employment involving an isolated transaction b¥ the appellant.	He noted that
Mr Southwood, who later appeared for both the appellant and Maritech, had on 30 December 1991 while appearing solely for Maritech, put the following questions to the respondent at transcript p44:-
"MR SOUTHWOOD:	The position is both with Maritech Ocean Services Pty Ltd and with Manning Services Pty Ltd, they operate out of the Territory from time to time, don't they?---Yes.

Sometimes they're carrying on business here, other times they're not?---Yes, that's correct."
As to the power to make an interim award with retrospective effect, Mr Hiley noted that it was common ground that his Worship was exercising jurisdiction under s107(2)(c) of the Act, a provision expressed in broad terms and not in its terms limited to making an award with prospective effect only.	He submitted that there was no logical reason why an interim award with retrospective effect could not be made.		He noted that, when it came to a matter of authority, it appeared from the report of Western Australian Coastal Shipping Commission & Anr v Wallner (1979) 26 ALR 591, when the case was before the Full Court of the Federal Court, that an interim award had been made with retrospective effect in that case (see p593) after earlier payments had been discontinued, and the Full Court did not then suggest that such an award was beyond power.
Mr Hiley noted that when this appeal was lodged,
his Worship stayed that part of the interim award which provided for payments retrospective to August 1991; he submitted that the appeal should be dismissed and the stay should be revoked.
The appellant's submissions in reply
Mr Tippett submitted that the position in Wallner (supra) was distinguishable, since the worker in that case had been entitled to the earlier payments in question, and they had been wrongly discontinued.	He conceded that if matters reached the stage where the balance of convenience required to be considered, the balance favoured the worker.

Later, Mr Tippett referred me to Young v Salkeld (1985) 4 NSWLR 375.		That case involved an interim order sought by a widow.	Section 9(5) of the Family Provision Act 1982 (NSW) provided for the making of an interim order for provision under s7, under certain conditions.	Section 7 provided that the Court could make such provision for an. eligible person as it considered ought to be made, having regard to the circumstances at the time, provided it was satisfied as to certain matters.	Prior to these legislative provisions being introduced there had been differing views as to whether an interim order could be made under T.F.M. legislation.	Young J discussed the various types of interim orders which could be made.	His Honour said at p378:-
"In many areas of the law, the legislature gives courts power to make interim determinations. "Interim", of course, is Latin for "meanwhile", but the use of the word may cause ambiguity because one is not sure whether the "meanwhile" period only endures to the hearing, or whether it is to last from the final hearing until some other event, or whether the word is used as a synonym for provisional. - - - In American Smelting and Refining Co v Federal Power commission 494 F (2d)(1974) 925, the US Court of Appeals - - - observed [at p932]: "An interim order is one entered during the course of proceedings which resolves some of the issues while leaving others to be determined at a later time."	In City of Corpus Christi v Public Utility Corporation 572 SW (2d)(1978) 290 at 297, an interim order was equated with an interlocutory order, the Court saying that by definition it was "an order made pending the cause, before a final disposition on the merits."
In the United Kingdom, again one finds the words "interim order" used in this variety of senses.

In Australia, legislation from time to time authorises interim orders to be made, eg, the Maintenance Act 1964 s25.	Although there are no decided cases on this section so far as I am

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aware, it is notorious that the practice before magistrates in courts with extremely heavy lists is that interim orders are made for maintenance of wives and children without any consideration of the merits of the matter at all save for the statement of the solicitor for the wife of her needs and perhaps a statement by the solicitor for the husband in reply."
At p379 his Honour said:
"There is a question as to what material can be considered and what degree of satisfaction the Court must have with that material when making an interim order.	Of course, when an interim or	· interlocutory injunction is being considered under the general law, the Court may affect rights "often without having the means of forming any opinion as to such .rights": Great Western Railway Co v Birmingham and Oxford Junction Railway co (1848) 2 Ph 597 at 602; 41 ER 1964 at 1976; De
Mestre v AD Hunter Pty Ltd (1952) 77 WN (NSW) 143. Where .legislation is framed is as the Companies Acquisition of Shares Act 1980, s49(2A), the Court may well be able to do the same.	Some statutes, however, when conferring the power on a court to grant interim relief, make it clear that the Court is only to act "if it is satisfied" in which case the Court ordinarily cannot act on anything less than the tested evidentiary material that is only available to it after a hearing on the merits: see eg, Woollahra Municipal Council v Jeffries [1981]
1 NSWLR 377 and cf Re Heathstar Properties Ltd'
[1966] 1 WLR 993 at 998.	With this background, I should turn to s9(5) itself.	It will be noted that the subsection empowers the Court to make an interim order before full consideration.	It thus envisages that the Court will have evidentiary material before it, indeed, evidentiary material which would give the Court some indication as to whether it would make an order at all, and what order it would make.	However, it does not make it clear what sort of interim orders the Court can make, or what is the standard of proof that the Court must act on, or indeed, at what date jurisdiction is to be considered."
As to this aspect, I note the terms of s107(2)(c) of the Act, enabling the Court to make an interim determination "on such information, evidence and material as is placed before it - - - If	Dealing with the proper interpretation of s9(5) his Honour said at pp380-1:-

"Counsel for the plaintiff says that the real message of Woollahra Municipal Council v Jeffries is that where there is no power of readjustment after an interim order, then the Court is shown that the legislature does not have in mind a temporary order, but a final or semi-final order. Counsel for the plaintiff submits that in using the word "opinion" in lieu of "satisfaction" which has been the draftsman's favourite phrase throughout the rest of the legislation, there is a clear.indication that the Court is to form its. opinion on evidentiary material less than all of the evidence, and make a prediction as to the outcome of the case.

In my view, the plaintiff's submissions do enable the scheme of the Act to operate and do not really do violence to the language used.

Thus the duty of the Court on an interim application is to examine what evidentiary material is placed before it, and to assess on that material the probable outcome of the proceedings." (emphasis mine)
It will be noted from what I have said earlier that I do not consider that it is necessary for the Court to go so far as to "assess - - the probable outcome".	At p381 his Honour discussed the types of order which could be made, viz:-
"However, in the normal case, although the Court has jurisdiction to make a wider order, it would seem to me that the proper order would be to give the eligible person only such a sum as would deal with real needs pending the hearing and then usually only on terms that the moneys could be recovered if the applicant were unsuccessful.
Again, this flavour is given by the provisions of s9(6) which require the Court in its final hearing to "confirm, revoke or alter" the interim order.
I do not say that the Court could not make an order for a penniless eligible person that she receive either a legacy or a weekly sum for living expenses knowing that all these moneys would be dissipated by the time of the hearing.	Indeed, I would consider that would be a perfectly proper order.	However, generally speaking, if there is the means of protecting the estate by securing the order in some way, then the interim order might be framed accordingly."

It will be noted that Young J did not consider the question whether there was power to make an interim order in retrospective terms; however I consider that the thrust of his judgment is that any such order should be prospective in operation.
Conclusions
I consider, as indicated earlier, that the
principles applicable when determining whether an interim award should be made are those applied when considering whether an interlocutory injunction should be granted.
Applying those principles, I consider that in this case it cannot be said that there was no evidence to warrant
his Warship's conclusion on the material before him that there was a triable issue as to whether the appellant was "carrying on business" in the Territory.	As the grounds of appeal are limited to questions of law, it is not open on appeal to examine questions of the sufficiency of that material; see generally the discussion in The Nominal Insurer v Kamarakis (unreported,·Kearney J 31 March 1993) at pp57-61.	Since I consider that there was a serious case to be tried on this point and it is not in issue that in that event the balance of convenience favours the respondent, it follows that I reject submission (a) at p9.
The question whether an interim award can be framed so as to operate retrospectively, that is, with effect prior to the date of the award, is one of some difficult.	On balance, I consider that it may be framed so as to operate from the date of lodging the application for

an interim award, in an appropriate case, but no further back.	I accept that the intention of the legislature, in providing for interim awards in s107(2)(c) of the Act, was  to ameliorate hardship pending the final determination of the claim for compensation.	Viewed in this light, I do not consider that the Court is empowered to go back beyond the date on which its jurisdiction was invoked by the lodging of an application for an interim award.	In the present case there was evidence of hardship as at that time.	I consider that the order set out on p9 should be varied; the words "the date of injury" should be deleted, and the words
11 23 December 199111 substituted.	Otherwise the order for interim payments is confirmed, and the stay is revoked.
Orders accordingly.
The question of costs was reserved at the- hearing;
'
I will hear the parties on that issue.

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