WOOLWORTHS LTD v BLANDA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY, SHELLER and Cripps JJA 15 April 1992, 15 April 1992 [1992] NSWCA 282 AWARDS — suspension and termination of award made in respect of workers compensation — worker resuming full time employment and therefore not ready willing and able to continue work with original employer. ERROR OF LAW — appeal to determine whether the Judge at first instance erred in law in determining the correct date for termination of the award. CASES — Edwards (Inspector of Taxes) v Bairstow and Anor 1956 AC 14 at 36. LEGISLATION — Workers Compensation Act (1987) s58 Workers Compensation Act (1926) s11(2) Cripps JA This is an appeal against a decision of Judge Herkes in the Compensation Court given on 23 October 1990 terminating a continuing award for compensation as from 12 March 1990 and ordered the applicant employer to pay costs. The appeal is limited to a question of law. On 3 January 1986 the respondent worker was injured lifting a wooden pallet while employed by the applicant. He was paid compensation and later adjudged partially incapacitated by Commissioner Reynolds with the result that from 5 April 1987 he became entitled to compensation pursuant to s11(2) of the Act. On 16 January 1989, the employer applied to the Court for a termination of the award as from September 1988. Later I think the application was amended so as to seek termination from July 1989. The employer made application for a suspension of the award which was made on 12 March 1990 by the learned Judge for the reason then stated that the applicant worker for compensation was working full time for the Fairfield Community Resource Centre as a youth development officer. On 23 October 1990 the learned Judge terminated the award as from 12 March 1990, that being the date he had suspended the award. He found that the worker, as I read his judgment, had been employed as a youth development officer since 3 July 1989 and from that time onwards he found that the worker, by reason of his position with his then employer, was not ready willing and able to take suitable employment with the employer. Upon that finding it is submitted that the Judge, as a matter of law, should have terminated the continuing award from 3 July 1989 and not from 12 March 1990. The question is whether, in making the decision to terminate the award from 12 March 1990, the learned Judge erred in law. In Edwards (Inspector of Taxes) v Bairstow and Anor 1956 AC 14 at page 36, Lord Radcliffe said it was an error of law if no person, on the facts found: " A cting judicially and properly instructed as to the relevant law could have come to the determination under appeal." He said that such an error could arise where the true and only reasonable conclusion was contrary to the determination made. That principle has application in this case. The issue before the Court was whether since 3 July 1989 the worker was ready willing and able to take up employment. The learned Judge 2 UNREPORTED JUDGMENTS found he was not. On that finding there was only one conclusion open to him and that was that the award be terminated on 3 July 1989. A further question arose in the appeal: whether there was any utility in the upholding of this appeal, and attention was directed to s58 of the Workers Compensation Act (1987). In my opinion, there may be some utility in upholding the appeal and I would propose to do so and order that the matter be remitted to the learned Judge to be dealt with according to law. Handley JA For the reasons given by my brother Cripps, I conclude that the trial Judge erred in law in making an order setting aside the award as from 12 March 1990, and not from 3 July 1989. This Court therefore has no option but to remit the matter to the Compensation Court for determination by that Court in accordance with that decision. Accordingly, I agree with the orders proposed. Sheller JA I agree. Handley JA: The orders of the Court will be: 1. Appeal allowed. 2. Set aside the decision Judge Herkes of 23 October 1990. 3. Remit the matter to the Compensation Court for determination by that Court in accordance with the decision of this Court. 4. The respondent is to pay the appellant's costs of this appeal but is to have a certificate under the Suitor's Fund. Counsel for Appellant: W P KEARNS Instructed by: EBSWORTH and EBSWORTH Counsel for Respondent: N/A Instructed by: PARISI SCARCELLA PARTNERS