NEWCASTLE MATTER MISERICORDIAE HOSPITAL v MILICA JOSFOVSKI SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, SAMUELS and CLARKE JJA 7 December 1990, 7 December 1990 [1990] NSWCA 137 WORKERS' COMPENSATION — appeal — error of law — exercise of statutory discretion to award compensation for partial incapacity — challenge that there was no evidence to support the facts on which the award of the judge in the Compensation Court (Manser J) was based — worker concedes errors — held: The award must be set aside and the proceedings returned to the Compensation Court to be determined in accordance with law upon facts correctly found. House v The Kina (1936) SS CLR 499, 505 referred to. Compensation Court Act 1984, s32. Workers' Compensation Act 1926, s11(1). Kirby P Before the Court is an appeal from an award entered by Judge Manser inthe Compensation Court. The award was formally handed down by Judge Herkes on Judge Manser's behalf on 26 May 1989. The Court has before it the reasons which support the award, as stated by Judge Manser. Against the award the employer has appealed. The only remaining ground of appeal is that stated in the fifth ground of the notice of appeal. It contends that his Honour was in error in making the assumptions he made as to the overtime component of the respondent worker's pre- and post-injury earnings and hours of overtime worked, as there was no evidence to support such a finding. The case comes before this Court under s32 of the Compensation Court Act 1984 as it stood before the recent amendment. Accordingly, the appeal to this Court is limited to errors in point of law or errors in the admission or rejection of evidence. The point of law argued by the appellant is that there was no evidence to support Judge Manser's finding. Belatedly, the Court received the written submissions of the respondent. In those submissions it was conceded - that Judge Manser's calculations were incorrect, being based on an error of fact-finding. As all that followed depended upon the facts as found by his Honour and as a discretion has to be exercised by the Compensation Court in the award of partial compensation based upon facts as found, it was obviously essential that the facts be found correctly in order that the discretion should be correctly exercised according to law. Error on essential fact finding is a classic circumstance permitting an appellate court to disturb the exercise of a statutory discretion. Cf House v The King (1936) 55 CLR 499, 505. Having regard to the fact that it is now conceded that an error has occurred in the Compensation Court it is not appropriate for this Court, limited as it is in its jurisdiction of review, to embark upon fact-finding for itself and then to exercise the discretionary jurisdiction which is reserved by law to the Compensation Court. That discretion must be exercised in that Court according to law upon facts correctly found. 2 UNREPORTED JUDGMENTS It was conceded by counsel for the respondent, in response to the submission of counsel for the appellant, that the matter must go back to the Compensation Court to be redetermined on the correct facts. That is what should be ordered. The orders which I would therefore propose are: 1. Set aside the award of Judge Manser entered on his Honour's behalf by Judge Herkes on 26 May 1989; 2. Remit the proceedings to the Compensation Court to be determined according to law; 3. The respondent to pay the costs of the appeal but to have in respect thereof a certificate under the Suitors' Fund Act 1951; and 4. The costs in the Compensation Court to be determined by that Court. Meagher JA I agree. Clarke JA I agree. 1. Set aside the award of Judge Manser entered on his Honour's behalf by Judge Herkes on 26 May 1989; 2. Remit the proceedings to the Compensation Court to be determined according to law; 3. The respondent to pay the costs of the appeal but to have in respect thereof a certificate under the Suitors' Fund Act 1951; and 4. The costs in the Compensation Court to be determined by that Court. Counsel for the Appellant: AF Puckeridge QC/ MT Crimmins Counsel for the Respondent: J Keesing Solicitors for the Appellant: Shaw McDonald Solicitors for the Respondent: Radin and Associates