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. What the appellant seeks in the present case is that Judge Manser's order of 6 August 1991 be set aside. In the appellant's appeal as originally brought more points were raised than the one I have just dealt with. However, in written submissions for the appellant it was made clear that the only matter which the appellant wished to raise was the matter I have dealt with and, similarly, in the written submissions the remedy sought was confined to asking that the matter be remitted to the Compensation Court for determination in accordance with law. The result of this modification of the appellant's position is that only some of Judge Manser's orders need to be set aside. It is agreed by the appellant that those orders are O1 and O3(1) of the six orders made by his Honour as set out on page 67 of the appeal papers. In my view, therefore, the Court should set aside orders 1 and 3(1) and remit the matter to the Compensation Court there to be dealt with in accordance with this Court's decision. UNREPORTED JUDGMENTS The appellant should in my view have its costs of the appeal. Powell JA I agree. Cole JA I also agree. The Court grants a certificate under the Suitors' Fund Act to the respondent. Counsel for the Appellant: J Maconachie Solicitors for the Appellant: Hickson Lakeman & Holcombe Counsel for the Respondent: D E Grieve QC/ D M Coulton Solicitors for the Respondent: Buckworth & Keady, Broken Hill