Singh v TAJ (Sydney) Pty Limited [2006] NSWCA 330

New South Wales Court of Appeal

CITATION: Singh v TAJ (Sydney) Pty Limited [2006] NSWCA 330

HEARING DATE(S): 31 August 2006

JUDGMENT DATE: 27 November 2006

JUDGMENT OF: Beazley JA at 1; Santow JA at 50; Tobias JA at 60

DECISION: 1. Appeal allowed; 2. Set aside the decision of Acting Deputy President Moore of the Workers Compensation Commission; 3. Set aside the award for the respondent made by the Arbitrator; 4. Order that the matter be remitted to the Workers Compensation Commission for redetermination according to law; 5. Order that the respondent pay the appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act (NSW) 1951.

CATCHWORDS: WORKERS COMPENSATION – work related injuries – visa change after injury disentitled appellant to work – compensation claim dismissed by arbitrator – whether presidential member of Workers Compensation Commission erred in confirming arbitrator's dismissal – arbitrator erred in misconstruing Workers Compensation Act – determination of probable earnings but for injury in similar employment – visa status irrelevant for determining post-injury earning capacity

Migration Act 1958 (Cth) s 235 LEGISLATION CITED: Workers Compensation Act 1926 (NSW) s 11(1)(a) Workers Compensation Act 1987 (NSW) ss 24, 40, 43A, 66, 67 Workplace Injury Management and Workers Compensation Act 1998 (NSW) ss 353(1), 353(4)(c)

Australian Wire Industries Pty Limited v Nicholson (1985) 1 NSWCCR 50 Lee v McClellan (1995) 127 FLR 383 CASES CITED: Mitchell v Central West Health Service (1997) 14 NSWCCR 526 Nonferral (NSW) Pty Limited v Taufia (1998) 43 NSWLR 312; (1998) 16 NSWCCR 130 Smith's Newspapers Ltd v Becker (1932) 47 CLR 279 Viliami v National Springs, A Division of Hendersons Federal Spring Works Pty Limited (1993) 9 NSWCCR 453