J R & E G Richards Pty Ltd (t/as J Richards & Sons v Thomsett & Ors [1999] NSWCA 279

New South Wales Court of Appeal CITATION : J R & E G Richards Pty Ltd (t/as J Richards & Sons v Thomsett & Ors [1999] NSWCA 279 FILE NUMBER(S) : CA 40494/98 HEARING DATE(S) : 6 July 1999 JUDGMENT DATE : 30 July 1999

J R & E G Richards Pty Ltd (T/as J Richards & Sons) - Appellant PARTIES : Graeme Stanley Thomsett - First Respondent WorkCover Authority of NSW - Fourth Respondent JUDGMENT OF : Beazley JA at 1; Giles JA at 2; Davies AJA at 34

LOWER COURT JURISDICTION : Compensation Court LOWER COURT FILE NUMBER(S) : CC 31073/95 LOWER COURT JUDICIAL OFFICER : Maguire CCJ

L King SC - Appellant COUNSEL : B J Gross QC - First Respondent S Crawshaw SC & J M Harris - Fourth Respondent Rankin & Nathan, Newcastle - Appellant SOLICITORS : Reid & Reid, Cardiff - First Respondent WorkCover Authority of NSW - Fourth Respondent CATCHWORDS : WORKERS COMPENSATION - appeal from Commissioner to judge of Compensation Court - finding of work being executed (s 20 of Act) - error of law - primary facts required different finding (Hope v Bathurst City Council (1980) 144 CLR 1) - finding of who employed worker - error of law - not obliged to find as did - judge correct to hold Commissioner erred in law - judge then found who employed worker - appeal to judge was only on point of law - finding not only possible result - should have remitted for further hearing. DECISION : Appeal upheld in part; orders of the Compensation Court other than the orders allowing the appeal to that court and setting aside the Commissioner's orders be set aside, and the matter be remitted to the Compensation Court to be dealt with according to law. No order as to the costs of the appeal and the costs of the proceedings below should be as ordered by the Compensation Court upon its dealing with the matter on remission.