Government Transport, Commissioner for v Kesby [1972] HCA 64

High Court of Australia Barwick C.J. Menzies, Walsh, Gibbs and Mason JJ. Government Transport, Commissioner for v Kesby [1972] HCA 64

ORDER Appeal allowed. Order of the Supreme Court of New South Wales, Court of Appeal Division, set aside and in lieu thereof order that the appeal to that Court be dismissed with costs. The appellant to pay the respondent's costs of the appeal to this Court pursuant to the undertaking given at the hearing of the motion for special leave to appeal.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 7 Barwick C.J.

The respondent, an officer in the employ of the appellant, formerly working as a bus driver, became unable to perform duties of that classification by reason of injury received in his employment. He was not totally incapacitated. During the period to which this appeal relates he worked for the appellant performing the duties of another classification for which the remuneration was less than that to which he would have been entitled working in the classification of a bus driver. He sued the appellant in the District Court of the Metropolitan District of Sydney for the sum of $576 which he claimed was due to him on the proper application of s. 124 (1) of the Transport Act, 1930 N.S.W. (as amended) (the Act). The appellant resisted the respondent's claim and in the result the District Court returned a verdict for the respondent for $198, the amount which the appellant claimed was due to the respondent by reason of the said section. On appeal, the Court of Appeal Division of the Supreme Court of New South Wales set this judgment aside and directed that judgment be entered for the sum of $576 [1] . This appeal, brought by this Court's special leave, challenges by way of a test case the construction and the application of s. 124 (1) of the Act which found favour with the Court of Appeal. That section is in the following terms: