ATTARDS TRANSPORT SERVICES PTY LTD v APPLEBY [1994] NSWCA 9

ATTARDS TRANSPORT SERVICES PTY LTD v APPLEBY

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, POWELL and COLE JJA 2 September 1994, 2 September 1994

[1994] NSWCA 9

Priestley JA This is an appeal in which it does not seem necessary to go into any detail concerning the facts. It involves the way in which Judges in the Compensation Court should apply s40 of the Workers Compensation Act, 1987.

In the present case, which was decided by his Honour Judge Manser on 6 of August 1991, he took a view of the way in which the section should be interpreted which involved the proposition that when an injured worker is in employment and earning, that worker is entitled to have brought to account in the calculation required under s40(1) the amount the worker is earning without qualification and irrespective of the result of the alternative factual enquiry which is set out in para(b) of s40(1).

In the decision of this Court which was handed down in 1992 in J C Ludowici and Son Ltd v Cutri (1992) 26 NSWLR 580, this Court had to consider the construction of s40 and stated what was to be taken as the appropriate construction and the appropriate method of doing the calculations required by s40 in a way quite inconsistent with the construction adopted by Judge Manser in the present case.

The application of the appropriate test which appears at page 589 of Ludowici would bring about a different result in the present case. In theory, it is not even necessary to mention that because, unless the application of the two different constructions were to bring about precisely the same result, which is not this case, the later decision of this Court in Ludowici shows that his Honour Judge Manser in 1991 was not considering the facts before him by reference to the appropriate legal rules.

I repeat that they were only clearly established in regard to s40 by the Ludowici case, although I doubt whether very many people thought there was any real difference between the way s40 should be applied and the way its predecessors had been applied. Nevertheless, the situation is the simple one where the case below was decided by reference to the wrong rule.