ADMAX PROCESSING PTY LTD v HUA DONG PAN [1993] NSWCA 1

ADMAX PROCESSING PTY LTD v HUA DONG PAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SHELLER and CRIPPS JJA 14 December 1992, 24 March 1993

[1993] NSWCA 1

WORKERS' COMPENSATION — partial incapacity — but for injury earnings — reliance upon untendered wages schedule — whether permissible in circumstances — whether error of law — Pacific Formwork Pty Ltd v Bignill, Court of Appeal, unreported, 5 August 1992; (1992) NSWJB 102 applied — held (by maj): Judge erred.

WORKERS' COMPENSATION — partial incapacity — calculation of — failure to refer to exercise of discretion.

JUDGES — reasons — adequacy of statement of grounds of — failure to explain the use of extra-evidentiary wages schedule — held: Judge erred.

WORKERS' COMPENSATION — partial incapacity — but for injury earnings —

award entered by Burke CCJ — whether evidence to sustain calculation of compensation — reliance upon a wages schedule not tendered in evidence — no evidence that schedule was informally accepted during hearing — employer's

Answer contests worker's claim as to wages — employer's schedule of wages contests worker's claim — rejection of employer's schedule and preference for worker's schedule not explained by judge — held: (Kirby P and Sheller JA; Cripps JA dissenting): There was no evidence upon which Burke CCJ could proceed as he did or alternatively it should not be presumed by the Court of Appeal that he did otherwise than resolve the issues finally in contest between the parties.

Australian Iron and Steel Pty Ltd v Elliott (1966) 67 SR (NSW) 87 (CA) and J and H Timbers Pty Ltd v Nelson (1972) 126 CLR 625 applied.

WORKERS' COMPENSATION - partial incapacity - application of discretion - failure of judge to indicate specific consideration of discretion - whether error of law - whether failure to provide reasons as required by law - held: (Kirby P and Sheller JA; Cripps JA dissenting): No proper reasons for decision - appeal allowed.