Horace Augustus Sandry

Published in "The Sydney Morning Herald" of Wednesday 29 April 1936:

"LAW REPORT. HIGH COURT OF AUSTRALIA. (Before Mr. Justice Starke, Mr. Justice Dixon, Mr. Justice Evatt, Mr. Justice McTiernan.) RAILWAY-WORKER'S CLAIM. Commlssionear for Railways v Sandry. The New South Wales Commissioner for Railways appealed against a decision of the New South Wales Supreme Court, in an action by respondent for compensation for injuries re- ceived, as an employee of the Commissioner. Horace Augustus Sandry was employed as a blacksmith's striker at the Chullora railway workshops. On February 22, 1932, he sus- tained injuries which incapacitated him. He received compensation under the Workers Compensation Act, and returned to work on October 24, 1932, but, as he could not perform his former duties, was paid the award rates for the work he did. He claimed that from October 24, 1932, up to November 20, 1934 (the date of the writ), he was entitled to be paid the salary he was receiving at the date of the injury. The amount involved was £33/5/7. The Supreme Court gave judg- ment for the plaintiff for this amount, with costs, and against this judgment, the Com- missioner appealed. One of the grounds of appeal was that the Court was in error in holding that the plaintiff, having received benefits under the Workers Compensation Act, was not barred by Section 47 of the Act from receiving benefits under the Railways Act, provided that the payments were for different periods of time. The Court reserved judgment. Mr. J. Bowie Wilson (instructed by the Solicitor for Transport ,Mr. Fred W. Bretnall) appeared for the Commissioner, in support of the appeal; and Mr. Clive Evatt, K.C., and Mr. F. A. Dwyer (Instructed by Messrs. Abram Landa and Co.) for the respondent. (Before Mr. Justice Starke, Mr. Justice Dixon, Mr. Justice Evatt.)"

Also published prior, in "The Sydney Morning Herald" of Tuesday 12 November 1935:

"SUPREME COURT. FULL COURT. (Before the Chief Justice, Mr. Justice Jordan, Mr. Justice Halse Rogers, and Mr, Justice Stephen.) GOVERNMENT RAILWAYS ACT. McIllhatton v Commissioner for Railways; Sandry v Commissioner for Railways.

The Court heard together two cases stated on questions of law arising from actions brought by Edmund John McIllhatton and Horace Augustus Sandry against the Commis- sioner for Railways to recover under-payments of salary. In each case the questions were answered favourably to the plaintiff. Judg- ment was entered for Sandry for £33/5/7, and for Mclllhatton for £10/6/7, with costs on the highest scale in each case.

The Chief Justice, who gave a judgment with which his colleagues agreed, said the plaintiffs were employees of the defendant Commissioner, and were at all material times officers within the meaning of section 100B of the Government Railways Act 1912. They were injured in the performance of their duties, and were for some time unable to work. It had been decided by the Full Court, in the case of Maher v Railway Commissioner (31, S.R., page 371), that section 100B of the Gov- ernment Railways Act did not confer upon an officer who had been injured any right to receive salary during such time as he might not be able to work, but it operated merely to fix a minimum rate for any work which the officer might subsequently be able to do for his employer, the defendant Commissioner. Both these men, therefore, claimed and re- ceived from the defendant compensation under the provisions of the Workers' Compensation Act, as amended, for the period from the date of injury until their return to work. When they returned to work they were paid at a rate which was appropriate for the work they did, but was less than the rate of pay which they were respectively receiving at the date of their

injuries. Upon their claiming the difference, it was contended by the defendant Commis- sioner that, by reason of their having received benefits under the Workers' Compensation Act, they were precluded by section 47 of that Act from receivlng any benefits under section 100B of the Government Railways Act 1912. Section 47, as amended, in making the Workers' Com- pensation Act apply to workers employed by or under the Crown or under a Government department, provided that, with an exception which was not material in the present case, any such worker should not be entitled to re- ceive compensation or benefits under that Act as well as benefits under any other Act.

The Chief Justice said he believed the best way to reconcile section 100B of the Govern- ment Railways Act, as construed in Maher's case, with the provisions of the Workers' Com- pensation Act, was to consider section 47 as operating, for example, to prevent a worker from claiming to receive benefits under section 100B in respect of any period during which he had worked for the Commissioner for Rail- ways and had received benefits under section II. of the Workers' Compensation Act, but did not operate, for example, to prevent a worker from claiming benefits under section 100B in respect of work done in a particular period merely because he had received compensation during another period in which he was totally incapacitated.

By consent, amounts of £25, £30, and £33/9/ are to be paid in by the defendant Commissioner in the cases of Sandry and Mc- Illhatton respectively, the balances to be held pending the decision of the question of limi- tation in Benson's case by the Privy Council.

Mr. G. Lytton Wright (Instructed by Mr. Edward Beeby) appeared for McIllhatton; Mr. Clive Evatt and Mr. Frank Dwyer (Instructed by Messrs. Abram Landa and Co.) for Sandry; and Mr. Watt, K.C., and Mr. Bowie Wilson (in- structed by the Crown Solicitor, Mr. J, E. Clark) for the defendant Commissioner. (Before Mr. Justice Davidson, Mr. Justice Street, and Mr. Justice Maxwell.)"