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. Kesen v Luke Singer Pty Ltd (1989) 18 NSWLR 566 (CA) and Kraturn Pty Ltd v Quinn, Court of Appeal, unreported, 28 September 1990; (1990) NSWJB 133 applied. JUDGES - reasons - obligation to state grounds - compensation award - absence of evidence of wages - reliance upon untendered wages schedule - whether adequately explained by reasons - held: (by maj): It was not. Compensation Court Act 1984, s32. Compensation Court (Amendment) Act 1989, schedule 1 CLS. Workers Compensation Act 1987, s40(1). Kirby P This appeal from the Compensation Court of New South Wales (Burke CCJ)raises, essentially, three complaints. The first is that his Honour had no evidence before him to justify his conclusions about the amount which Mr Hua Dong Pan (the worker) would have earned with the appellant Admax Processing Pty Ltd (the employer) but for the 2 UNREPORTED JUDGMENTS injury. The second is that his Honour did not exercise the discretion reposed in him by the Workers Compensation Act 1987, s40(1) when calculating the amount to be awarded to the worker for his found partial incapacity for work resulting from an employment injury. The third, connected to the first and second, is that his Honour failed to give reasons for his award as required by law. An unsatisfactory case with complications and delay There are many unsatisfactory features of the case. Some of them are pointed out by Cripps JA in his reasons. Not the least of these is the absence of an agreed transcript of the argument placed before Burke CCJ upon the basis of which his Honour was invited to resolve the claim, or an agreed statement of facts or an affidavit to supplement the transcript to demonstrate the issues which were finally litigated at trial. A further, and more substantial, feature of the difficulty in this case is that it has taken nearly three years from the award of the Compensation Court to come to finality in this Court. The reason for that delay is completely unexplained. It cannot lie in the procedures of this Court. Normally, a compensation appeal will come on in a much shorter time if all steps are taken promptly by the parties. Where, as here, the award amount has continued to be paid and no stay may be provided in respect of weekly compensation, this Court will ordinarily grant expedition of the hearing so that the respective rights of the parties can be determined quickly. No such expedition was sought. The case meandered in a lazy motion down to its determination by us now. If the real complaint of the employer was that Burke CCJ acted upon a mistaken assumption that a schedule of wages was in evidence before him, when it was not, or that his award was grounded in simple factual error, there were other more urgent steps which could have been taken to reopen the case without such delay. Instead, we are now asked to fix the matter up nearly three years after the event. It is a task uncongenial in the extreme. There is a further complication. So old is it that the appeal is limited to a grievance in point of law or in relation to the wrongful admission or rejection of evidence. This is because the proceedings appealed from were commenced by application for determination filed in the Compensation Court on 27 October 1988. At that time, the Compensation Court Act 1984, s32, limited appeals to the two grounds which I have stated. Those grounds were strictly and stringently construed, as the decision of this Court in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (CA) demonstrates. It was, in part, in an endeavour to circumvent this strictness that a vogue emerged of complaining about the want of reasons on the part of Compensation Court judges. Occasionally, this would establish the foothold of an error of law that would attract relief from this Court. The Compensation Court Act, s32 was amended in 1989 to permit appeals on questions of fact as well as law. However, schedule 1, CL5 of the amending Act limited the operation of s32, in its new form, to cases in respect of "an award given in proceedings commenced before the commencement of the amendments made to s32 by the Compensation Court (Amendment) Act 1989". It thus excluded the present case. That conclusion was not altered by the filing of an amended application for determination during the course of the proceedings. Cf Mitchell v Harris Engineering Co Ltd [1967] 2 QB 703 (CA). In the end, senior counsel for the appellant conceded that the notice of appeal had anticipated that the appeal would be limited to a point of law only. I will approach the matter upon that basis. In the way the employer developed its argument, it really does not matter. Its three contentions each amounted to errors URJ ADMAX PROCESSING PTY LTD v HUA DONG PAN (Kirby P) 3 of law. They are either good or bad. If they are good, no threshold problem concerning the jurisdiction of this Court stands in the way of correction. Reliance on untendered and contested wages schedules A disinclination to find the first error alleged by the employer is natural enough. Burke CCJ is extremely experienced in the application of the Act. It is by no means uncommon for the proof of "but for injury wages to be handled informally in compensation proceedings. Where they are not in dispute, it is by no means unusual (and certainly involves no error) for the judge to take into account informal documentation, by which such wages are proved. The matters in contest in a compensation case will normally be announced at the beginning of proceedings. However, they may also emerge during the hearing. Evidence may be addressed to the issues which counsel have agreed to be in dispute, it being understood that, during address or otherwise, other issues, not in dispute, will be the subject of concession or agreement. This informal procedure may horrify the purist. But it is the only way that, over the years, the Compensation Court and its predecessor have been able to get through their heavy workloads. It is a reason why this Court (particularly when limited to review for error of law) will generally ask itself what were the ultimate issues in contest between the parties before it finds an error of law on the part of a judge of the Compensation Court in the determination of the issues reflected in the award. To add to these preliminary difficulties, this Court has been informed that the practice of judges of the Compensation Court in respect of the tender of wages schedules now required by Pt9 R6 of the Compensation Court Rules (formerly by R29AD) is not uniform. Some judges require such schedules to be formally tendered and marked as exhibits, if the matter of wages is in contest. Other judges, so it is said, do not require that course but have regard to such schedules more informally and without their formal tender. It seems clear that, for whatever reason, the wages schedules which were in the Compensation Court file were not tendered in this case. But it seems equally clear that Burke CCJ had regard to them. His findings of probable weekly earnings on the part of the worker, coincide virtually exactly with the worker's schedule, viz $350 per week before 30 June 1989 and $378 per week thereafter. There was no oral or documentary evidence to establish these sums. Therefore, their only basis can be in the wages schedule filed by the worker but not tendered in evidence. The difficulty in relying upon this schedule in this case, it not being in evidence, is obvious. The employer's Answer did not, in terms, admit the claims in respect of wages set out in the application for determination. Moreover, there was a second document in the Compensation Court file, apparently produced by the employer. It asserted that the probable weekly earnings were $285 prior to 30 June 1989 and only $317 thereafter. Under the relevant Compensation Court rule, the only duty upon a party to file a schedule of wages in response to that filed by the other party arises where such party disputes the accuracy of any matter in the schedule [filed by the worker]". Thus the filing by the employer of its own schedule, had it been brought to the notice of Burke CCJ, would have indicated that there was a dispute about the "probable weekly earnings". It was a dispute upon which the employer would, in the ordinary event, have been in a better position to establish the relevant facts than the worker. The worker could rely upon a presumption of continuance and supposition, hearsay, rumour or gossip as to what workers in his former position enjoyed by way of wages. But the employer would normally have access to the actual wages records. At the least, its assertion of the amount "which the worker would probably have been 4 UNREPORTED JUDGMENTS earning... but for the injury" in the terms of 8 40 of the Act could not be dismissed without consideration or rejected without reasons. Unsatisfactory though it is, therefore, it seems to me that Burke CCJ erred in having regard to the contested schedule filed by the worker. The errors were: (a) Taking the schedule into account although it was not part of the evidence before him; (b) Taking it into account without resolving the conflict between the wages schedule supplied by the worker and that supplied by the employer; and (c) Failing by his reasons to indicate why he felt entitled: (i) to treat as evidence the filed wages schedule of the worker but not, apparently, of the employer; and (ii) to prefer the filed schedule of the worker to that of the employer. Judicial notice and its limits in contested issues With every respect to those of a different view, I do not believe that the error which occurred here can be overlooked by this Court simply because it is so irritating to be asked so belatedly to correct it. There either was evidence to support the award or there was not. There either were reasons to explain the preference for the non-evidence schedule of the worker or there were not. On the face of the transcript which was placed before this Court, as the official record of the Compensation Court, the answer to both of those questions must be adverse to the worker. It was suggested that the Court could sustain the award by inferring that, in this case as in so many others, the parties had somehow agreed that Burke CCJ should accept the worker's filed schedule although not in evidence and although in conflict with the employer's schedule. In my opinion, the Court should act upon the official record of the Compensation Court. Unless it is supplemented by material placed before this Court by agreement or proved in the normal way to resolve a conflict, we do well to restrain our speculation as to what might or might not have happened at the trial where this is suggested to be different from the record before us. Cf Builders Licensing Board v Mahoney (1986) 5 NSWLR 96 (CA), 98. Then it was suggested that a judge of the Compensation Court was entitled to rely upon "the fund of information as to conditions of employment and rates of pay which the Commission should be taken to possess". See Australian Iron and Steel Pty Ltd v Elliott (1966) 67 SR (NSW) 87 (CA), 94; cf J and H Timbers Pty Ltd v Nelson (1972) 126 CLR 625, 651. I appreciate the latitude which must be allowed to judges of the Compensation Court as a specialist body hearing evidence from a cross section of workers and receiving repeated testimony upon expert matters, such as quite complex medical issues. These are the kinds of matters upon which this Court will impute knowledge to the judges of the Compensation Court that might not otherwise be embraced by the ordinary doctrine of judicial notice. But these principles fall far short of justifying the acceptance, in a particular case, of a very precise level of earnings, obviously derived from an extra-evidentiary document filed but not tendered in evidence and disputed by one party. It is going too far to say that Burke CCJ knew exactly what this worker "would probably have been earning... but for the injury" and could estimate it down to the exact dollar. That is not a finding which relies upon general knowledge of the level of rates of pay in industry. It is not a finding which ought to be made upon the basis of judicial notice where there is a contest in the documents of the parties about the issue. URJ ADMAX PROCESSING PTY LTD v HUA DONG PAN (Kirby P) 5 In the result, I am of the opinion that Burke CCJ erred in basing his estimates of the "but for injury" earnings of the worker, as I believe he did, upon the wages schedule not tendered in evidence. This case is another reason for repeating the warning in Pacific Formwork Pty Ltd v Bignill, Court of Appeal, unreported, 5 August 1992; (1992) NSWJB 102. Unless earnings are clearly agreed, it is desirable, and in a particular case may be essential, that wages schedules should be formally tendered. If disputed, the original wages information can then be produced or oral evidence tendered to help resolve the difference between the schedules of the parties. What is impermissible is what occurred on this occasion. Other grounds of the appeal This conclusion requires that the award should be set aside. It is clearly inappropriate, even if it would be permissible, for this Court to substitute the award which should have been made. The matter must be sent back to the Compensation Court for the re-determination of the worker's entitlement to compensation for his partial incapacity. It is unnecessary in the circumstances to consider the further complaint that Burke CCJ failed to exercise the discretion contained in the closing words of s40(1) of the Act. It may be that his Honour did do so, although there is no indication in his reasons to that effect. Doubtless when the matter is returned to the Compensation Court, this issue will be specifically addressed to avoid further complaint. Nor is it necessary to consider, beyond the above, the complaint about the suggested failure of his Honour to give relevant reasons. The obligation has now been reviewed so many times in this Court, in relation to the Compensation Court and other courts and tribunals, that it would be otiose to say more about it. See esp Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (CA). It may be expected that, in the future, the provision now of a general appeal from the Compensation Court will reduce complaints of this kind. When parties, as here, were confined, relevantly, to complaints of errors of law, it was natural enough that they should insist that the reasons given should accurately indicate the grounds of the judge's decision so that they would not be effectively deprived of their right of appeal. In this case, the complaint about the want of reasons is no better than the substantive complaint brought to this Court. The want of reasons to explain where the figure adopted came from (in the absence of formal evidence) which sustained Burke CCJ's finding as to the "average weekly amount which the worker is earning, or is able to earn in some suitable employment within s40(1)(b) of the Act is simply the counterpart of the complaint that there were no such reasons because what occurred was the result of a mistake or oversight. Conclusion: the award is not sustained When the matter goes back to the Compensation Court, it will be open to that court, upon a proper evidentiary footing, to come to the same conclusion as is reflected in the present award. On the other hand, if a simple oversight has occurred it will be open to that court to correct it, to accept a different weekly "but for injury" earning level and, as well, in the exercise of the discretion provided by the section, to award a lesser sum. Judges should not be reticent in admitting error where it has occurred. That is the only intellectually honest path of integrity for a judge to tread. It is the path which this Court took in Winrobe Pty Ltd and Anor v Sundin's Building Company Pty Ltd [No 2], Court of Appeal, unreported, 24 December 1992, when, before its orders were entered, an error in the assumptions underlying its opinion was drawn to its notice. It is easy enough 6 UNREPORTED JUDGMENTS to make mistakes. The judicial robe is no armour against occasional error, however painstaking and dutiful the judge may be. Least of all is it surprising in the Compensation Court operating without strict pleadings, under the pressure of extremely heavy lists and in a context of multiple litigation, often conducted with an appropriately high level of informality sometimes without even an adequate identification of the issues in contest. The worker is clearly entitled, under Burke CCJ's finding, uncontested these past three years, to receive a continuing payment of weekly compensation. The question is whether the amount awarded is that which conforms to his rights under the Act. By setting aside the award, this Court will merely ensure that the amount ultimately ordered in the worker s favour is based upon evidence and complies with the Act. That is every party's right in a court of law in this State - whether a worker, an employer or its insurer. I gave some thought to whether, in all of the circumstances (particularly of gross delay) the employer should be deprived of its costs of the appeal. But I think not. The worker has sought to maintain the award although there was no evidence to support it on an essential limb of the calculation. Had the worker acknowledged a simple error it would doubtless have been possible to take the matter back before Burke CCJ and to correct the error by consent. The award could then have been adjusted and recalculated as proper evidence required. Because this was not done, it is appropriate that the ordinary order for costs should follow. Orders The orders which I favour are therefore: 1. Appeal allowed; 2. Set aside the award of Burke CCJ dated 6 April 1990; 3. Order that the proceedings be remitted to the Compensation Court of New South Wales for re-determination in accordance with law of the entitlement of the respondent, Mr Hua Dong Pan to weekly compensation under s40 of the Workers Compensation Act 1987; 4. The Compensation Court's award in respect of medical expenses and costs confirmed; 5. The respondent to pay the appellant's costs of the appeal but to have, in respect thereof, a certificate under the Suitors' Fund Act 1951. Sheller JA I have had the benefit of reading the judgments of the President and Cripps JA. Burke CCJ found the respondent's probable earnings to 30 June 1989 to be $350; from 1 July 1989, $378. His ability to earn in the same periods was found to be $290 and $310. Accordingly he awarded the respondent $60 per week from 16 November 1988 to 30 June 1989 and $68 per week from 1 July 1989 "to date and continuing". His Honour's judgment does not indicate the material upon which the finding of probable earnings is based. There is no record of any exhibit or other evidence to support it. There were filed in Court, apparently pursuant to R29 AD of the Compensation Court Rules by the respondent a "Wages Schedule" and by the appellant a document setting out probable weekly earnings. The amounts of the respondent's probable earnings found by Burke CCJ correspond to the amounts shown in the Wages Schedule filed by the respondent. It may be inferred from this that his Honour accepted that the respondent's probable earnings would be those in the respondent's Wages Schedule and not those in the document filed by the appellant. The amounts were in dispute. No reason was given for preferring one to the other. The choice may be explained if there was URJ ADMAX PROCESSING PTY LTD v HUA DONG PAN (Cripps JA) 7 a record or evidence of the discourse between the judge and the representatives of the parties at the trial. There is no such record or evidence and no such explanation in the judgment. The parties are entitled to have their dispute determined according to law. The record shows that the case was decided on the material not in evidence and no justification for this course, such as the consent of the parties, is demonstrated. It seems to me inevitable that this appeal on a point of law must succeed. The errors were, in my opinion, those that the learned President has pointed out. I agree with the orders he proposes and the reasons he has given for them. Cripps JA This is an appeal from a decision of Judge Burke in the CompensationCourt published on 6 April 1990 ordering that the appellant ("employer") pay to the respondent ("worker") weekly compensation based on the worker's partial incapacity for work in the sum of $60 per week from 16 November 1988 to 30 June 1989 and $68 per week from 1 July 1989 and continuing. The appeal is limited to questions of law. The first ground of appeal is whether, upon the finding that the worker was partially incapacitated for work, Burke CCJ was entitled, as a matter of law, to award him $60 per week and $68 per week for the respective periods referred to above. The second ground is whether, upon the assumption that such a conclusion was open, Burke CCJ's decision must be set aside because of insufficient reasons. The worker was injured at work on 8 September 1987. He was paid compensation until 15 November 1988. After compensation payments ceased, he commenced proceedings in the Compensation Court claiming a continuing award of compensation based on total incapacity for work from 16 November 1988 and continuing. The employer's response was that the worker had not been as seriously injured as he claimed and that any incapacity he may have suffered had ceased long before the cessation of compensation payments on 15 November 1988. It was not disputed that the worker suffered an injury on 8 September 1987. However, Burke CCJ rejected the claims of both the worker and the employer. He rejected the worker's claim that he remained totally incapacitated and he rejected the employer's claim that no incapacity existed. He found that the worker was partially incapacitated for work as a result of the injury. The worker had complained of pains in the left leg, neck, left shoulder and left arm. Burke CCJ said he accepted the opinion of Dr Segelov in the report dated 23 February 1990 in which he said: "IT have seen some x-rays which show degenerative changes in the cervical region and in the acromioclavicular joint. I think that this patient does have some continuing problems in the neck and shoulder and that these could have arisen from the injury in 1987. However I find it hard to believe that he is totally unfit for all forms of work and I would expect him to be able to manage lighter forms of work if it were available. I would be satisfied that with that symptomatology he would be impeded in doing the type of work that he was doing. Certainly, at the time of injury he was manipulating some fairly substantial weights, and it would appear the respondent is in the scrap business and a labourer there is doing genuine physical work. I can understand that even with a modicum of symptoms Mr Pan is impeded in the free exercise of his capacity in that sort of labour market. 8 UNREPORTED JUDGMENTS However, I think he does have a fairly wide capacity to do the less strenuous forms of work. I would be prepared to accept that there may be occasions on which he might have difficulty in fronting up for work on a continuous basis, but, by and large, I think he has a reasonably substantial capacity to work. I find on 8 September 1987 the applicant received injury to his left leg, neck, left shoulder and arm. The applicant incapacitated thereby and paid compensation to 15 November 1988. The applicant partially incapacitated thereby [from] 16 November 1988 and continuing. [The] Applicant's probable earnings to 30 June 1989, $350; from 1 July 1989, $378. His ability to earn in the same periods $290, $310. Award for the applicant $60 a week from 16 November 1988 to 30 June 1989; $68 a week from 1 July 1989 to date and continuing. Medical, s60; costs, PtIV; two qualifying fees, certify a fee for advice on evidence." Having determined that the worker was partially incapacitated, Burke CCJ determined his claim for monetary payment in accordance with s40 of the Workers Compensation Act 1987. S40 relevantly provides: "(1) The weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work shall be an amount not exceeding the difference between: (a) the weekly amount which the worker would probably have been earning as a worker but for the injury and had the worker continued to be employed in the same or some comparable employment (...); and (b) the average weekly amount which the worker is earning, or is able to earn in some suitable employment, from time to time after the injury (), but shall bear such relation to the amount of that difference as may appear proper in the circumstances of the case. (1A)... (2) In any case where a calculation is made under subs(1) on the basis of the average weekly amount that a worker is able to earn in some suitable employment: (a) that amount shall, subject to the regulations, be determined by reference to the current weekly wage rate for some suitable employment (...); and (b) the amount which the worker would probably have been earning but for the injury shall, subject to the regulations, be determined by reference to the worker's current weekly wage rate for the pre-injury employment". In The Smith Family v Dafinis (New South Wales Court of Appeal 17 December 1991 unreported), the Court of Appeal adopted the interpretation of s40 advanced by Burke CCJ in Mangion v Visy Board Pty Ltd (Compensation Court, 6 May 1991). He was of the opinion that the words "be determined by reference to" where appearing in s40(2) did not mean "be determined by using" but rather "be determined by using as a reference figure in the process of arriving at a realistic amount". In Dafinis Judge Moroney adopted the Mangion construction and his view was upheld by Priestley JA in the Court of Appeal with whom Hope JA agreed. It was submitted by the employer that there was no evidence entitling Burke CCI to fix the probable earnings during the relevant periods (being $350 and $378 respectively) and no evidence entitling him to fix the amount the worker was able to earn during those periods (being $290 and $310 respectively). It was also submitted that Burke CCJ failed to exercise his discretion as to what was the appropriate amount not exceeding the difference between the worker's probable earnings and his ability to earn. That is, it was submitted that Burke CCJ failed URJ ADMAX PROCESSING PTY LTD v HUA DONG PAN (Cripps JA) 9 to take what was described as the fourth discretionary step required to be undertaken (see Kraturn Pty Ltd T/as Mac's Fruit Centre v Quinn (New South Wales Court of Appeal unreported 28 September 1990). As I have said, it was also submitted that upon the assumption that there was material entitling Burke CCJ to make the above mentioned findings, his reasons were legally inadequate. There is no reference in the transcript to any evidence being tendered with respect to the question of what the worker would probably have been earning but for the injury had he continued to be employed or what he was capable of earning at the relevant times. There were, however, two documents in the Court file which, clearly enough, referred to the first question. Both were headed "Wages Schedule". R29AD of the Compensation Court Rules (as in force at the relevant time) provided as follows: "Tn any application where the quantum of weekly compensation is or may be an issue and there is or may be a dispute in respect of the actual or probable earnings of a worker during any relevant period the following provisions shall, unless the court otherwise orders, have effect: (1) The applicant shall file and serve on each other party not later than 21 days before the hearing date, a schedule containing full particulars of such earnings during such period. (2) If any party disputes the accuracy of any matter in the schedule that party shall, not later than 7 days after service, file and serve a schedule containing its allegations of such earnings. (3) A matter not so disputed shall be deemed to be admitted". The first "Wages Schedule" in the file is dated 12 March 1990. It was filed by the employer and was served on 16 March 1990. Omitting formal parts, it read: "DATES ACTUAL EARNINGS PROBABLE P.W. 16/11/88 to 30/6/89 Nil $350.35 1/7/89 to date Nil $378.73 Dated this 12TH DAY OF MARCH 1990" The second document was undated but was served on 16 March 1990. It was filed by the worker. Omitting formal parts, it read: "DATES PROBABLE WEEKLY EARNINGS 16/11/88 to 30/6/89 $285-00 1/7/89 to date $317.00 DATED this day of March 1990" It is reasonable to infer that when fixing the probably earnings for the two periods, Burke CCJ accepted the information contained in the employer's Wages Schedule. His conclusion that the worker was entitled to weekly compensation in amount of $60 per week during the first period and $68 per week during the second period was a consequence of his determination that during those periods the worker was able to earn $290 and $310 respectively. The application before Burke CCJ was heard on 5 April 1990. It is common ground that the Wages Schedules were not tendered. There is, however, no transcript of the addresses in the appeal book. The judgment the subject of appeal was delivered by Burke CCJ on 6 April 1990. A curious feature of the case is that none of the lawyers involved in it have any recollection of any discussion before Burke CCJ concerning the amount of money the respondent worker would probably have been earning had he been uninjured and employed by the appellant. It seems to me, therefore, that this Court must proceed upon the basis 10 UNREPORTED JUDGMENTS that it cannot be shown that submissions were put to Burke CCJ to the effect that he should not have regard to the information in the Wages Schedule. We have been told that the practice of Judges of the Compensation Court with respect to the tendering of Wages Schedules if they are intended to be used is not uniform. If what we are told is correct, it appears that some Judges would have regard to the Wages Schedule even though the document is not tendered and marked as an exhibit. The worker submits that we should infer that is what happened in the present case or, at the very least, we should not do otherwise than assume that the parties accepted that the Wages Schedules were in evidence before the Court. In Pacific Formwork Pty Ltd v Bignill (New South Wales Court of Appeal, 5 August 1992 unreported), Clarke JA made certain observations concerning the undesirability of the Compensation Court not paying some attention to matters of formal procedure and ensuring that appropriate rulings were recorded. In Pacific Clarke JA doubted the evidentiary value of a Wages Schedule bearing in mind it was a self-serving document. He doubted that it was legally admissible unless it was deemed to be so. However, in that case, the Court took the view that, bearing in mind that both parties had treated the Wages Schedules as evidence, it was too late to raise any alleged impropriety in the Court of Appeal (see Coulton v Holcombe (1986) 162 CLR 1). The present case is different. There is no record about the matter at all. It may have been clearer had the Court been given the transcript of the addresses. Mr Poulos QC has submitted that we should infer that Burke CCJ overlooked the employer's Wages Schedule. Although, of course, that is possible, it is not an inference I am prepared to draw. It is clear, as I have said, that Burke CCJ had regard to the worker's Wages Schedule. Had he indicated he was proposing to do that and had no objection been taken, the correctness of his action could not be raised on appeal (see Bignill). It appeared to be suggested by Mr Poulos QC in argument that Burke CCJ simply made a mistake. If that were so, it is difficult to understand why the employer did not make an application forthwith to Burke CCJ pursuant to s17(4) of the Act rather than wait almost two and a half years before bringing it to the attention of the Court of Appeal. I am not prepared to infer that the parties were unaware that Burke CCJ would have regard to the Wages Schedule. One cannot ignore the way the proceedings were conducted. The employer submitted the worker was not entitled to compensation at all. The worker maintained he was totally incapacitated. It must have been apparent to the parties during argument, bearing in mind the medical reports, that Burke CCJ might make a finding of partial incapacity. I am not prepared to assume that there was any submission (or even any intimation) to Burke CCJ that it would be wrong of him to have regard to the Wages Schedule as a matter of law. Although one must be careful not to pay too much attention to what passes for pleadings in the Compensation Court, it is not irrelevant to note that in his application the worker claimed that, at the date of his injury in 1987, he was earning $325 per week. The employer, in its answer, said that the worker's claim as to his Probable weekly earnings was "inaccurate or incomplete". It did not, however, dispute that the worker was earning $325 per week at the time of the accident. If Burke CCJ was entitled to rely (as I think he was) on the employer's answer as being in the nature of an admission, it would not be surprising that he would have rejected the employer's claim as set out in the Wages Schedule. The URJ ADMAX PROCESSING PTY LTD v HUA DONG PAN (Cripps JA) 11 employer in the Wages Schedule said that the worker's probable earnings in 1988 and 1989 had he not been injured were respectively $40 and $8 less than he was actually earning in 1987. It is true that there is no material before the Court that the Wages Schedules were formally tendered and marked as Exhibits. I am prepared to assume they were not. That, however, does not persuade me that Burke CCJ had regard to the Wages Schedules without the knowledge of the parties and contrary to a submission that he should not. I am of the opinion that it has not been demonstrated that he erred in law in adopting the weekly sums in the worker's Wages Schedule. Mr Poulos QC has also submitted that the worker's Wages Schedule was inadmissible for the reason that R29AD requires that the document be filed and served not later than 21 days before the hearing date and that, in fact, the worker's Wages Schedule was served within 20 days of the hearing date (it being agreed that it was not served until 16 March 1990). I did not understand his submission to be that the Wages Schedule was not admissible if it had been served in time and tendered. In my respectful opinion, the submission is utterly untenable. First, because there is no record of the point Mr Poulos QC now wishes to take ever being raised in the proceedings. The document was dated 12 March. That was 25 days before the hearing. Why should the Judge not have assumed it was not raised in time? Secondly, even if the Court were to assume that Burke CCJ became aware that the document had not been served until 16 March 1990, I would not be prepared to assume he did not abridge the time from 21 days to 20. Upon the assumption that Burke CCJ was entitled to fix probable weekly earnings in the sums of $350 and $378, did he err in fixing the amount the worker was able to earn during the relevant periods? I do not think it has been shown that he did. Judges of the Compensation Court are entitled to have regard to the collective wisdom of the Court with respect to such matters as conditions of employment, rates of pay etc. It appeared to be suggested having been found that the worker was partially incapacitated, Burke CCJ came under an obligation to relist the matter for further evidence and debate concerning the amount of weekly entitlements. There is no material in the appeal papers suggesting that Burke CCJ was asked to take this course much less that he agreed to it. It was a simple case. I am not prepared to assume that Burke CCJ's discretion miscarried. As I have said, I do not know what was discussed before Burke CCJ during addresses because they have not been put before us. It is also submitted that Burke CCJ failed to have regard to what was described as the fourth discretionary step in Kraturn. As I have indicated above, I am not persuaded that Burke CCJ erred in his findings with respect to the worker's probable earnings had he been injured and his earning capacity. His award was the difference between the two - a result that was clearly open. IT now turn to the submission that Burke CCJ's decision was flawed because his reasons were inadequate. I have already referred to Burke CCJ's findings and to the motion before the Court (or lack of it) concerning the way the case was conducted. As I have said, I am not persuaded that Burke CCJ was not entitled to have regard to the worker's Wages Schedule. The reason he awarded weekly sums of $350 and $378 for the respective periods is, although not expressed in the judgment, clear enough. He accepted the worker's Wages Schedule. Bearing in mind the findings he made in respect of the worker's physical capacities, I do not think he was required to enlarge upon why he fixed the sums of $290 and 12 UNREPORTED JUDGMENTS $310 per week as a measure of the worker's capacity to earn during the respective periods. He was, after all, making a value judgment. If I understand Mr Poulos' argument correctly, it is that because no mention was made by the Judge of the employer's Wages Schedule and, I suppose, no mention is made of the fourth discretionary step referred to in Kraturn his reasons were legally insufficient. It is submitted he was obliged to give reasons why he selected the worker's Wages Schedule and not the employer's. Central to Mr Poulos' submission is that Burke CCJ ought to have presumed that the employer's Wages Schedule would have been inherently more likely to be accurate than the worker's Wages Schedule and, therefore, if the employer's claim was not accepted, he should have explained why. I have some difficulty in understanding why there should be a presumption of accuracy in favour of an employer's Wages Schedule if it differs from a worker's Wages Schedule. It is not the employer's lawyers who conduct the litigation in the Compensation Court. It is the lawyers retained by the insurance companies. Why should it be assumed that the lawyers retained by the insurance companies are more likely to be competent than those employed by workers. In the present case, as I have already mentioned, it would appear from the documents prepared by the employer's lawyers that the worker was earning $40 more in 1987 than he would probably have been earning had he not been injured and remained employed a year later. That, of course, was a possibility. However, it is not hard to see why Burke CCJ may have viewed the worker's Wages Schedule as the more reliable. It is possible that the addresses were conducted in a way that required Burke CCJ to give more elaborate reasons. It is also possible that they were not. Why should this Court assume that he failed to discharge his judicial function properly? In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 and 281 McHugh JA said: "Tn a case where a right of appeal is given only in respect of a question of law, different considerations apply from the case where there is a full appeal. An ultimate finding of fact, which is not subject to appeal and which is in no way dependent upon the application of a legal standard, can be treated less elaborately than an issue involving a question of law or mixed fact and law. If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done." In the present case the appeal is limited a question of law and, in my view, it has not been demonstrated that Burke CCJ's decision breached the principle that justice must be seen to be done. Accordingly, I would dismiss the appeal and order the appellant to pay the costs. 1. Appeal allowed; 2. Set aside the award of Burke CCJ dated 6 April 1990; 3. Order that the proceedings be remitted to the Compensation Court of New South Wales for re-determination in accordance with law of the entitlement of the respondent, Mr Hua Dong Pan to weekly compensation under s40 of the Workers Compensation Act 1987; 4. The Compensation Court s award in respect of medical expenses and costs confirmed; 5. The respondent to pay the appellant's costs of the appeal but to have, in respect thereof, a certificate under the Suitors' Fund Act 1951. URJ ADMAX PROCESSING PTY LTD v HUA DONG PAN (Cripps JA) 13 Counsel: Appellant: J Poulos QC / G B Beauchamp Respondent: S G Campbell Solicitors: Appellant: Hickson Lakeman and Holcombe 10 Respondent: Goldrick Farrell Mullan