STATE RAIL AUTHORITY OF NEW SOUTH WALES v PAPWORTH SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL COLE JA, BEAZLEY JA and ABADEE AJA 27 November 1996 [1996] NSWCA 497 PART 9, rule 6, Workers Compensation Court Rules 1990 — operation and effect. Cole JA. Two grounds only were argued on appeal subsequent to the filing by consent of an amended notice of appeal. The first ground was that the trial judge's finding that pre-accident earnings of $300 per week was unsupported by evidence. The second contention was that because there was admitted into evidence a schedule of earnings which showed pre-injury award earnings and actual earnings but left blank the column for comparable earnings and thus the net loss, the effect of Part 9, rule 6 Compensation Court Rules 1990 was to render the pre-injury employment award rates binding on the trial judge. In my judgment, each of those grounds fails. Part 9 rule 6 provides: In 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 twenty-one 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 seven 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. There are a number of difficulties with the second proposition advanced on appeal. First, the exhibit which was tendered, exhibit N, did not have any information in it concerning comparable earnings or the difference being the loss. Accordingly, there is nothing to which Part 9 rule 6 can properly apply in relation to comparable earnings. Second, the appellant would need to overcome the provisions of s 17(3). Third, the evidence in relation to the take-home pay or comparable earnings was tendered and admitted without objection and, fourth, it is implicit that the Court permitted that course to be adopted. Thus the trial was conducted upon the basis that exhibit N was not, in truth, binding upon the parties insofar as it had any application except in relation to the pre-injury employment award rates. For those reasons, the second point raised on appeal fails. Regarding the first point. It is true that there was a certain lack of clarity regarding pre-injury wages. Nonetheless, there was clear evidence that the worker worked considerable overtime and thus earned more than the award wage. The worker gave evidence that pre-injury he would, 'Take home $500, $600 or $700 per fortnight' after tax. Later he said that with overtime he would be happy to take home, 'Round about $500, $600 a fortnight' after tax with 2 UNREPORTED JUDGMENTS overtime. In those circumstances, the proposition that the trial judge was not entitled to take as the actual earnings pre-injury the sum of $300 perweek net fails. Judge Neilson's calculations thereafter were based on that sum appropriately escalated. Accordingly, in my judgment, the appeal should be dismissed with costs. Beazley JA. I agree. Abadee AJA. I agree. Cole JA. The orders will be as I have proposed. Orders accordingly. Counsel for the appellant: J Wynard Solicitors for the appellant: Gillis Delaney Brown Counsel for the respondent: C R R Hoeben SC Solicitors for the respondent: Wood Roberts