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[2026] NSWSC 686
Supreme Court of NSW
2026-06-16
Sirtes J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Aryal v Waratah Private Hospital Pty Ltd [2026] NSWSC 686
Hearing dates: 3 June 2026
Date of orders: 16 June 2026
Decision date: 16 June 2026
Jurisdiction: Common Law
Before: Sirtes J
Decision: (1) The Further Amended Summons is dismissed.
(2) The Plaintiff is to pay the costs of the First Defendant.
Catchwords: ADMINISTRATIVE LAW – judicial review – plaintiff seeking orders in the nature of certiorari for two determinations and directions of the Personal Injury Commission – whether Commission fell into jurisdictional error – proceedings dismissed
Legislation Cited: Evidence Act 1995 (NSW), s 56
Personal Injury Commission Act 2020 (NSW), ss 21, 48, 54, 56, 57
Workers Compensation Act 1987 (NSW), ss 4, 11A, 33, 36, 37, 59, 60, 66
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 235A, 281, 282, 287A, 289, 321A, 322A, 350
Personal Injury Commission Rules 2021 (NSW), r 77
Uniform Civil Procedure Rules 2005 (NSW), r 59.10
Cases Cited: Bangura v Director of Public Prosecutions (NSW) [2020] NSWCA 138
Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd [2015] 1 Qd R 265; [2014] QSC 30
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
On Sunset Ltd v Shrestha [2024] NSWPIC 555
R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407; [1944] HCA 42
Samuel v Sebel Furniture Limited (2006) 5 DDCR 482; [2006] NSWWCCPD 141
Sleiman v Gadella Pty Ltd [2021] NSWCA 236
Thadsanamoorthy v Teys Australia Southern Pty Limited [2019] NSWWCCPD 61
Texts Cited: Personal Injury Commission Procedural Direction WC3
Personal Injury Commission Procedural Direction WC7
Category: Principal judgment
Parties: Yadav Aryal (Plaintiff)
Waratah Private Hospital Pty Ltd (First Defendant)
The President of the Personal Injury Commission of New South Wales (Second Defendant)
John Turner, Member of the Personal Injury Commission of New South Wales (Third Defendant)
Representation: Counsel:
I Griscti / A Cowley (First Defendant)
Solicitors:
Rankin Ellison Lawyers (First Defendant)
Crown Solicitor’s Office (Second and Third Defendants)
Plaintiff (self-represented)
File Number(s): 2026/00097318
By Further Amended Summons (FAS) filed on 14 April 2026, Mr Yadav Aryal, the Plaintiff, seeks judicial review of two determinations and a direction made by Member Turner of the Personal Injury Commission (PIC). The first determination dated 28 July 2025 dismissed the Plaintiff’s proceedings (in which he was the Applicant) (28 July Determination). On 16 December 2025, the Plaintiff’s application for reconsideration in respect of the 28 July Determination was dismissed (16 December Determination). The Plaintiff also seeks judicial review of directions made by the Member on 30 May 2025 (30 May Direction****s). The Plaintiff has represented himself in these proceedings.
The Defendants are as follows:
Waratah Private Hospital Pty Ltd (First Defendant);
The President of the Personal Injury Commission of New South Wales (Second Defendant); and
John Turner, Member of the Personal Injury Commission of New South Wales (Third Defendant).
Only the First Defendant is active in these proceedings. The Second and Third Defendants have filed submitting appearances.
The Plaintiff brought proceedings in the PIC. He alleged he suffered a primary psychological injury arising out of or in the course of his employment as a registered nurse at the First Defendant hospital.
The Plaintiff had been working at the First Defendant hospital since October 2021. In or around October 2022, the Plaintiff’s rostered days changed. He subsequently expressed his dissatisfaction with the change to management. The reason for that appears to be the Plaintiff’s role as a primary carer for his young children on those days.
The Plaintiff read and relied on his affidavit dated 11 March 2026. It discloses that, on 4 November 2022, he met with the Nurse Unit Manager (NUM) to discuss those proposed changes. He says at paragraph 8 that, during that meeting, the NUM became aggressive and acted in an intimidating manner by striking the table and throwing a roster document while stating “this roster is final”. The Plaintiff says he was subject to further workplace bullying and harassment thereafter.
The dispute between the Plaintiff and the First Defendant’s management subsequently escalated. On 13 December 2022, the Australian Nursing and Midwifery Federation NSW Branch sent the First Defendant a letter, requesting that the Plaintiff be provided with a flexible working arrangement due to his inability to work on Tuesday and Wednesday.
The Plaintiff stated, in a document styled “Worker’s injury claim form”, that the date of injury was 13 March 2023. The stated injury/condition was “mental and psychological injury”. In response to the question “What happened and how were you injured?”, the Plaintiff responded, “workplace harassment, being discriminated harassed, torture mentality, abused, coercion, bullied, by ward [NUM] and 3 associates…since October to 3/20 [sic]”.
On 5 April 2023, Insurance and Care NSW (icare) sent a letter to the Plaintiff which stated it was delaying payments to the Plaintiff because it did not have enough medical evidence to establish whether the Plaintiff had a DSM-5 diagnosis and because it lacked sufficient factual information to assess its liability. That letter stated the date of injury was 28 March 2023, more than two weeks later than that claimed by the Plaintiff in the claim form. This is merely an observation.
On 1 December 2023, Employers Mutual Ltd (EML), the insurer of the First Defendant, by way of letter to the Plaintiff, said it did not believe it was liable to the Plaintiff for his workplace injury. EML determined, in accordance with ss 4 and 11A(1) of the Workers Compensation Act 1987 (NSW) (1987 Act), it had no liability for:
compensation for costs incurred in relation to the treatment for his workplace injury pursuant to s 60(2A) of the 1987 Act; and
weekly benefit payments or medical costs in relation to the Plaintiff’s injury pursuant to ss 33, 59 and 60 of the 1987 Act.
Section 4 of the 1987 A**ct provides:
In this Act—
injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease…
(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.
…
(3) A psychological injury is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.
In its reasons for the decision, EML referenced an “Independent Medical Examination” of the Plaintiff that was conducted by Dr Lee Ingram. The letter states that Dr Ingram, after his review, believed the “main contributing factor was performance management and provision of employment” and therefore not a “compensable psychological injury”. That statement was the basis for the s 11A(1) defence advanced by EML.
It is important to note that EML’s decision, informed by Dr Ingram’s independent assessment, was made only in respect of these two claims. At that time, the Plaintiff had not yet made a claim for compensation pursuant to s 66 of the 1987 Act for permanent impairment and, as such, no form of impairment was considered.
In or around June 2024, the Plaintiff was referred to Dr Hong by his then lawyers, NewLaw, for assessment. In his affidavit evidence, the Plaintiff says he was assisted by a Nepali interpreter in this assessment. In his report, sent to NewLaw on 4 June 2024, Dr Hong diagnosed the Plaintiff with major depressive disorder. He noted that the Plaintiff had previously suffered from anxiety and depressive symptoms, for which he had taken antidepressants, but these symptoms had stabilised before the workplace incident. Dr Hong expressed the view that the “predominant cause of his psychological injury, is due to the behaviour and perceived aggression by the manager [sic]”.
On 4 June 2024, Dr Hong also furnished a “Permanent Impairment Assessment” for the Plaintiff. He calculated the Plaintiff’s final whole person impairment (WPI) at 22%.
On 24 July 2024, Ms Jacqueline Bates of NewLaw sent an email to the relevant case manager at EML (the Bates Email). In that email, a link was provided for a letter of demand seeking compensation in respect of:
medical expenses;
weekly payments; and
a lump sum payment in consequence of Dr Hong’s assessment of the Plaintiff’s WPI at 22%.
On 28 August 2024, Rankin Ellison Lawyers responded to the Bates Email. The letter from Rankin Ellison Lawyers stated they acted for the First Defendant “in the interests of EML”. They noted that the letter of demand and supporting documents were only received by EML on 28 August 2024.
The letter noted the Bates Email’s letter of demand and supporting documentation were sent via a link to a cloud-based server. EML was unable to access that link and, in accordance with the decision in Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd [2015] 1 Qd R 265; [2014] QSC 30, service “was not effected until 28 August 2024”. The letter went on to state that, in circumstances where service was not effected until 28 August 2024, and particulars had been requested on the same day, EML did not have to determine the lump sum payment claim until two months after those particulars were provided pursuant to s 282 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (1998 Act). They stated the Plaintiff was required to attend an independent medical examination in order to respond to the WPI claim and arranged for the Plaintiff to be re-assessed by Dr Ingram on 6 December 2024.
The Plaintiff places great reliance on the proposition that service of the letter of demand occurred on 24 July 2024 and rejects the opposing contention that it was only received on 28 August 2024. For reasons I will come to shortly, I do not believe this controversy has any purchase on the issue before me.
On 14 November 2024, Rankin Ellison Lawyers wrote to the Plaintiff’s solicitors, stating that, due to his ill health, Dr Ingram was not available for the assessment on 6 December 2024. They advised that Dr Nagesh was available for the consult on 24 December 2024 via Telehealth and requested NewLaw to confirm the Plaintiff’s attendance.
On 4 December 2024, NewLaw informed the Plaintiff that Dr Ingram, while assessing the Plaintiff’s functioning previously, had not provided a WPI assessment. The letter noted that EML was entitled to have Dr Ingram (or another doctor appointed by the insurer), in his capacity as an independent medical examiner, complete a WPI assessment. NewLaw noted that they would not proceed to the PIC until the Plaintiff attended an independent examination by the insurer.
Very shortly thereafter, the Plaintiff changed legal representation to Walker Law Group. On 17 December 2024, Walker Law Group wrote to the icare review team to request a review of EML’s decision to deny liability pursuant to s 287A of the 1998 Act. It is difficult to resist the conclusion that the Plaintiff terminated his former solicitors’ retainer because he did not wish to be told that he was required to attend an independent medical examination.
Because of the change in legal representation, the assessment by Dr Nagesh was cancelled and rescheduled for 29 March 2025. The Plaintiff did not attend the 29 March 2025 appointment.
On 31 December 2024, EML wrote to the Plaintiff, notifying that its 1 December 2023 decision to deny compensation was “maintained and amended”. That letter then reiterated the insurer’s defence pursuant to s 11A(1) of the 1987 Ac**t but acknowledged the Plaintiff had suffered an injury in the course of his employment. In doing so EML amended its decision by withdrawing its s 4 contention. EML stated the Plaintiff had no entitlement to weekly payments or medical and related treatment expenses under ss 33, 59 and 60 of the 1987 Act (and, although not stated, no entitlement pursuant to s 60(2A) of the 1987 Act). Further, EML outlined that it did not consider the Plaintiff to be incapacitated. EML had evidently not determined the Plaintiff’s WPI claim because no independent assessment had yet been undertaken.
On 28 March 2025, the Plaintiff’s second law firm, Walker Law Group, filed an application to resolve a dispute in the PIC. That application sought the same compensation sought in the letter of demand, that being weekly payments, medical expenses, and lump sum compensation.
On 12 May 2025, the PIC listed the matter for conciliation conference/arbitration at 10 am on 30 May 2025 via Microsoft Teams. On 26 May 2025, four days before the conciliation conference/arbitration, the Plaintiff wrote to the PIC and said he was unable to attend on 30 May 2025 and participate in the proceedings further due to a decline in his mental health. He requested the matter be determined on the papers. Upon receipt of this correspondence, the PIC contacted the Plaintiff’s solicitors. The Plaintiff’s solicitors said that the Plaintiff requested to be excused from being present at the conciliation conference/arbitration and wished for his barrister to have the opportunity to make submissions. Member Turner excused the Plaintiff from attending, provided he was available to give instructions to his legal representatives via telephone. At the conciliation conference/arbitration hearing the Plaintiff’s legal representatives had issues contacting the Plaintiff.
During the conciliation conference/arbitration hearing, counsel for each of the parties canvassed the “jurisdiction issue” arising from the Plaintiff’s failure to attend an assessment of his WPI claim with a doctor nominated by the insurer. The insurer submitted before the PIC that, in those circumstances, pursuant to s 289(3) of the 1998 Act, the Commission lacked jurisdiction to determine the WPI claim. No determination was made in respect of the jurisdiction issue. However, a direction was made on the same day—the 30 May Directions—which listed the matter for a further conciliation conference/arbitration on 23 July 2025. The Member also made a direction for the Plaintiff to be examined by Dr Morgans on 1 July 2025, presumably for the purpose of assessing his WPI claim.
On 23 June 2025, the Plaintiff’s solicitors filed with the PIC a Notice of Ceasing to Act. On 7 July 2025, the Plaintiff wrote to the PIC. He reiterated his objections to attending an independent medical examination and sought for the matter to be determined (again) on the papers.
Pausing at this point, by early July 2025 the position was as follows:
the Plaintiff’s former solicitors had informed the Plaintiff of the need to attend an independent medical examination. Shortly thereafter their retainer ceased;
on 30 May 2025, Member Turner made a direction requiring the Plaintiff to attend an independent medical examination; and
shortly thereafter, the second set of solicitors retained by the Plaintiff also ceased to act.
The Plaintiff defied the direction and did not attend such an independent medical examination.
On 23 July 2025, the conciliation conference/arbitration hearing took place. The Plaintiff did not attend nor did a legal representative for the Plaintiff. Member Turner, in his reasons, stated that he waited for 15 minutes in the Microsoft Teams meeting for the Plaintiff. This was to no avail. He subsequently dismissed the proceedings and delivered written reasons on 28 July 2025 (i.e. the 28 July Determination). In those reasons, Member Turner addressed the Plaintiff’s request for the claims to be decided on the papers. Member Turner concluded “that neither the initial jurisdictional and procedural matters or the substantive matters are suitable for determination on the papers” (28 July Determination at [25]).
On 26 August 2025, the Plaintiff sought to appeal the 28 July Determination. A letter from the PIC dated 28 August 2025 discloses the appeal was rejected for reasons including that it was lodged out of time and that it did not comply with the procedural requirements of the 1998 Act and Procedural Direction WC3 (which related to appeals in the PIC).
On 19 September 2025, the Plaintiff filed an application for reconsideration pursuant to s 57 of the Personal Injury Commission Act 2020 (NSW) (PIC Act). Member Turner determined the application on the papers and dismissed it on 16 December 2025. Member Turner provided written reasons.
I shall address the determinations in further detail below but, in substance, the Member’s reason for dismissing the reconsideration application was that the application was not one for reconsideration, but one for “summary determination of all issues in his favour without the parties being heard which would be procedurally unfair and a denial of natural justice” (16 December Determination at [16]).
The Plaintiff seeks judicial review of the decisions of Member Turner dated 28 July 2025 and 16 December 2025. He also seeks judicial review of the 30 May Directions which, inter alia, required he attend an independent medical assessment. He seeks an order in the nature of certiorari quashing the directions and two determinations.
The Plaintiff advances 16 grounds of review. Many of those grounds overlap, repeat, or attempt to frame a purported error differently. The pleading of those grounds also appears to contain the Plaintiff’s submissions. Those grounds of review are as follows:
The service date of the WPI claim was a jurisdictional fact upon which the Commission’s power depended. The PIC misidentified the service date as being 28 August 2024 and, therefore, fell into jurisdictional error.
The Commission applied the wrong statutory test under s 281 of the 1998 Act based on an incorrect lodgement date and misapprehended the limits of its jurisdiction.
The PIC fell into jurisdictional error by relying upon irrelevant, false or misleading material which asserted the WPI claim lodgement date was 28 August 2024.
The Commission erred in law by assuming the existence of a dispute under s 11A of the 1987 Act despite the absence of any verbal warning, written warning, or disciplinary action against the Plaintiff while employed at the First Defendant hospital.
The PIC failed to give genuine, proper and realistic consideration to mandatory relevant material, rising to the level of a denial of procedural fairness to the Plaintiff.
The Plaintiff was denied procedural fairness when the PIC relied upon an incorrect WPI lodgement date and failed to determine the correct jurisdictional fact.
The Commission erred in law by failing to apply s 48(7) of the PIC Act and by disregarding probative evidence and submissions that contained the correct WPI claim lodgement date.
The PIC “constructively” failed to exercise jurisdiction by failing to determine the Plaintiff’s application in accordance with ss 322A(1A) and 322A(3)(b) of the 1998 Act in circumstances where the insurer had failed to determine the Plaintiff’s WPI claim lodged on 24 July 2024.
The PIC exceeded its jurisdiction and improperly exercised its discretion by facilitating independent medical assessment referrals at the hearing on 30 May 2025 without first “determining the correct jurisdictional facts, including the correct lodgement date”.
The PIC fell into error by misapplying ss 322A(1A), 322A(3)(b), and 321A(2) of the 1998 Act through the directions dated 30 May 2025. The Commission acted ultra vires by facilitating an independent medical assessment referral and attempted to create a “medical dispute”.
The PIC erred by dismissing the proceedings under s 54(c) of the PIC Act in circumstances where:
(a) the Plaintiff had notified the PIC of fraudulent conduct by the insurer, including unlawful requests for an independent medical examination, in circumstances where the Commission lacked power owing to its reliance on an incorrect date of lodgement of the WPI claim; (b) the Plaintiff had provided medical evidence of his (un)fitness to attend both the arbitration proceedings and any independent medical examination; and (c) the Plaintiff had lodged written submissions on 23 July 2025 addressing issues before the PIC and seeking determination on the papers.
Pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 59.10(1), proceedings for judicial review of a decision must be commenced within three months of the date of the decision.
The initial Summons, filed on 9 March 2026 (and later amended), was filed beyond this limitation period for the 30 May Directions and the 28 July Determination. The application for review of the 16 December Determination is, however, in time.
Paragraph 8 of the First Defendant’s Response to Summons takes issue with any review being undertaken in respect of the 28 July Determination pursuant to r 59.10(1) of the UCPR, because the Summons seeking review of that decision was filed beyond three months of the date of the decision.
While the Plaintiff did seek to appeal the 28 July Determination in the PIC itself, he was notified by the PIC on 28 August 2025 that his appeal was rejected, such that even if this date were considered the “material date”, it would still be out of time pursuant to UCPR r 59.10(1).
The FAS lists the material date as 16 December 2025. The only way the material date could be 16 December 2025 is if the decision in respect of the reconsideration application was the “decision” within the meaning of UCPR r 59.10.
Reconsideration applications are governed by s 57 of the PIC Act. It provides as follows:
(1) The Commission may reconsider any matter that has been dealt with by the Commission in the Workers Compensation Division or Police Officer Support Scheme Division and rescind, alter or amend any decision previously made or given by the Commission in that Division.
(2) If after the making of a decision by the Commission (and without limiting subsection (1)), the President is satisfied that the decision contains an obvious error, the President may—
(a) alter the decision to correct the error, or
(b) direct a registrar to alter the decision to correct the error.
(3) Without limiting subsection (2), if the decision is contained in a certificate, the President may—
(a) issue a replacement certificate with the error corrected, or
(b) direct a registrar to issue a replacement certificate with the error corrected.
(4) If a decision is altered, the altered decision is taken to be the decision and notice of the alteration is to be given to the parties in the proceedings in the manner directed by the President.
(5) If a replacement certificate is issued, the certificate prevails over any previous certificate.
(6) Examples of obvious errors in a decision are where—
(a) there is an obvious clerical or typographical error in the text of the notice or statement, or
(b) there is an error arising from an accidental slip or omission, or
(c) there is a defect of form, or
(d) there is an inconsistency between the stated decision and the stated reasons.
A reading of subs (4) yields the conclusion that an “altered decision” made after a reconsideration application replaces the original decision. For the purposes of UCPR r 59.10, the date that the altered decision is handed down would be the date of the “decision”. That is not the case here. Member Turner dismissed the reconsideration application. Therefore, the material date of the determination remained 28 July 2025, when written reasons were given.
The Plaintiff did not seek leave to extend the three-month period to have the 28 July Determination subject to judicial review. The Plaintiff also did not seek judicial review of the 30 May Directions within three months. In any event, my reasons below outline the FAS’s deficiencies in respect of the relief sought in the nature of certiorari for the 28 July Determination.
That leaves only the 16 December Determination in time for judicial review. For the Plaintiff to establish that jurisdictional error occurred in respect of the 16 December Determination would require him to demonstrate that Member Turner erred in his application of s 57 of the PIC Act.
The only grounds which directly impugn the application of s 57 in the FAS are Grounds 12 and 13.
The primary ground upon which the Plaintiff seeks his relief is the purported jurisdictional error arising from the Member’s reliance on 28 August 2024 as the date on which the WPI claim was served on the First Defendant’s insurer. The Plaintiff contends the correct date of service was 24 July 2024. Many of the grounds in the FAS assert that this was a “jurisdictional fact” that was, the Plaintiff contends, incorrect and thereby caused the Member to act outside of his jurisdiction. This contention appears to inform a majority of the Plaintiff’s grounds of review and his belief he should receive the relief sought in this Court.
This argument evidently does not relate to jurisdictional error in the Member’s application of s 57 of the PIC Act (set out in [43] above), which would be the only viable ground of review in light of my above reasoning.
Given the Plaintiff’s reliance on this fact for the majority of his grounds of review, I shall nonetheless endeavour to address the argument. However, I do not consider this argument to have any bearing upon my determination.
In his affidavit filed on 11 March 2026, which contains many of the submissions he made during the hearing, the Plaintiff refers to s 282 of the 1998 Act. That section provides as follows:
282 Relevant particulars about a claim
(1) The relevant particulars about a claim are full details of the following, sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement on the claim—
(a) the injury received by the claimant,
(b) all impairments arising from the injury,
(c) any previous injury, or any pre-existing condition or abnormality, to which any proportion of an impairment is or may be due (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act),
(d) in the case of a claim for work injury damages, details of the economic losses that are being claimed as damages and details of the alleged negligence or other tort of the employer,
(e) information relevant to a determination as to whether or not the degree of permanent impairment resulting from the injury will change,
(f) in addition, in the case of a claim for lump sum compensation, details of all previous employment to the nature of which the injury is or may be due,
(g) such other matters as the Workers Compensation Guidelines may require.
(2) If the employer requires the claimant to submit himself or herself for examination by a medical practitioner provided and paid for by the employer, the claimant is not considered to have provided all relevant particulars about the claim until the worker has complied with that requirement.
(3) The insurer is not entitled to delay the determination of a claim under this Division on the ground that any particulars about the claim are insufficient unless the insurer requested further relevant particulars within 2 weeks after the claimant provided particulars.
(4) In this section, injury is not limited by the meaning given by section 4.
(Emphasis added.)
“I understand that Section 282(3) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) provides that the insurer is not entitled to delay the determination of a claim on the ground that particulars are insufficient, unless the insurer requested further relevant particulars within 2 weeks after the claimant provided particulars.”
The Plaintiff relied on this provision to resist attending a further independent medical examination for the purpose of assessing his WPI claim. As his case goes, the insurer could not delay its determination as those particulars were not requested within two weeks of 24 July 2024. Accordingly, the insurer was to make the determination on the available documents it had within two months. The relevant documents would include the WPI assessment of Dr Hong.
In Thadsanamoorthy v Teys Australia Southern Pty Limited [2019] NSWWCCPD 61 (Thadsanamoorthy), an employer required the appellant to attend an independent medical examination pursuant to s 282(2) of the 1998 Act for assessment of his WPI claim. The appellant, who entered Australia as an unauthorised maritime arrival, could not attend because he was deported to Sri Lanka and unable to obtain a visa to re-enter Australia.
The arbitrator determined on 27 March 2017 that, as a result of the appellant’s failure to attend an independent medical examination, when the employer required him to do so, he had not provided the respondent with all relevant particulars about the claim in accordance with s 281(2)(b) of the 1998 Act. For context, s 281 of the 1998 Act relevantly provides:
(1) The person on whom a claim for lump sum compensation or work injury damages is made must, within the time required by this section, determine the claim by—
(a) accepting liability and making a reasonable offer of settlement to the claimant, or
(b) disputing liability under Division 3 of Part 2 of Chapter 4.
(2) A claim must be so determined—
(a) within 1 month after the degree of permanent impairment first becomes fully ascertainable, as agreed by the parties or as determined by a medical assessor, or
(b) within 2 months after the claimant has provided to the insurer all relevant particulars about the claim,
whichever is the later.
“The language [of s 282(2)] reposes such discretion as may exist in the insurer in the sense that the option provided is for the insurer to have the claimant examined or not examined. There is no option for a claimant for lump sum compensation not to be examined if the employer requires the claimant to submit for examination.”
“Because the claimant could not attend in Australia for the proposed medical examination, the “relevant particulars” were not furnished. Therefore the time within which the insurer was required to determine the claim as specified in s 281(2)(b) did not commence to run.”
The case before me can be distinguished from Thadsanamoorthy because the Plaintiff asserts the request to attend a medical examination was made outside of the two-week period to request particulars. I do not consider that the two-week period specified in s 282(3) disentitles the employer from requesting that the claimant attend an independent medical examination. While the insurer must request further particulars within two weeks of the initial particulars being provided, s 282(2) does not specify a period within which the employer must require a claimant’s attendance at an independent examination. It certainly does not require the request within subs (2) to be made within the two-week timeframe provided in subs (3).
Moreover, I agree with Parker ADP’s observation that, until the claimant attends a medical examination requested by the employer, the claimant has not provided relevant particulars about a claim. Section 281(2)(b) of the 1998 Act requires the insurer to determine its liability within two months of all relevant particulars being provided to the insurer. In the event that the requirement of the claimant to attend a medical examination deems the claimant not to have provided all relevant particulars, the two-month period in which the insurer must determine its liability would not begin to run until the claimant has attended that examination.
Accordingly, attendance at such an appointment was required and, until such time, the insurer could not be furnished with the relevant particulars of his claim. What follows from this is that the Plaintiff’s adherence to the date of 24 July as regulating the insurer’s obligations is misconceived.
Even if I am wrong on this point, the Plaintiff’s case in this Court is that: (a) the service date of the WPI claim was a jurisdictional fact; (b) Member Turner erred because he did not determine the service date was 24 July 2024; and (c) the Member thereby fell into jurisdiction error.
For the lodgement date to be considered a jurisdictional fact, the lodgement date must be a precondition to the exercise of s 54 of the PIC Act. It was not. The PIC had jurisdiction to determine the claims in respect of weekly compensation pursuant to ss 36 and 37 of the 1987 Act and treatment expenses pursuant to s 60 of the 1987 Act.
An issue arose as to whether the PIC could determine the Plaintiff’s WPI as, at this time, the insurer had not yet determined liability. As noted, the jurisdiction of the PIC to determine the WPI was canvassed at the 30 May 2025 conciliation conference/arbitration. Certainly, the directions of the same day which required the Plaintiff to attend an independent examination with Dr Morgans sought to progress that claim. In any event, I am satisfied the Plaintiff’s claim therein was nonetheless a “proceeding” within the meaning of s 54 of the PIC Act.
Accordingly, I consider that the Member had the power to dismiss the WPI proceedings as well. Apart from the opinion the Member was required to form, the provision requires there to be “proceedings” which the PIC may dismiss. As I have said, all the claims fell within that meaning.
On 23 July 2025, Member Turner dismissed the proceedings brought by the Plaintiff due to the Plaintiff’s failure to prosecute the proceedings with due despatch pursuant to s 54(c) of the PIC Act and r 77(a) of the Personal Injury Commission Rules 2021 (NSW) (PIC Rules). He delivered his written reasons five days later. Section 54 of the PIC Act confers upon the PIC a power to dismiss proceedings before it. The section provides as follows:
The Commission may at any stage dismiss proceedings before it—
(a) if it is satisfied that the proceedings have been abandoned, or
(b) if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c) for any other ground of dismissal specified in the Commission rules.
(Emphasis added.)
The following grounds are specified for section 54(c) of the PIC Act—
(a) for proceedings by an application made under the workers compensation legislation—the applicant has failed to prosecute the proceedings with due despatch…
I will now consider whether there was any jurisdictional error in the 28 July Determination.
Before I turn to the Member’s reasons, it is useful to refer to Latham CJ’s judgment in R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407; [1944] HCA 42 at 430. Latham CJ stated, in respect of what are commonly described as subjective jurisdictional facts:
“Thus, where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts.”
“[26]. The applicant has advised the Commission that he is unfit to attend Commission proceedings or to attend any independent medical examinations. The applicant has not retained further legal representation having released his previous legal representatives. The Commission has previously strongly recommended to the applicant that he seek legal advice as a matter of urgency and provided the applicant with the contact details for the Independent Review Officer and the Law Society.
[27]. The applicant did not attend the conciliation conference/arbitration hearing on 23 July 2025. At that conference I was advised that the applicant had not attended the independent medical examination arranged by the respondent.
[28]. Pursuant to s 54(c) of the PIC Act the Commission can at any stage dismiss the proceedings for any ground of dismissal specified in the Personal Injury Commission Rules 2021 (Rules). Rule 77(a) identifies as a ground where ‘the applicant has failed to prosecute the proceedings with due despatch’.
[29]. In circumstances where the applicant has advised the Commission that he is unable to attend Commission proceedings, failed to attend, independent medical examinations arranged by the respondent, dismissed his legal representation without obtaining alternate representation and failed to attend at a conciliation conference/arbitration hearing the proceedings are dismissed due to the applicant’s failure to prosecute the proceedings with due dispatch [sic].”
Before addressing the Plaintiff’s 16 grounds of review, I shall canvass authorities which guide the process of judicial review.
In its submissions, the First Defendant has provided Leeming JA’s summation of the principles regarding the supervisory jurisdiction of this Court at [20] of Sleiman v Gadella Pty Ltd [2021] NSWCA 236. There, his Honour said (citations omitted):
“(1) The principal bases of review of administrative decision-making in this Court’s supervisory jurisdiction are jurisdictional error and error of law on the face of the record.
(2) Jurisdictional error cannot be defined with complete precision, but a useful summary may be found in the joint judgment of Basten, Ward and McCallum JJA in Bangura v Director of Public Prosecutions (NSW) [2020] NSWCA 138 at [13]:
‘Jurisdictional error arises where the decision-maker has misunderstood the limits of his or her legal authority or has otherwise acted outside the scope of that authority, or failed to exercise the powers conferred by that authority. A failure to accord a party procedural fairness in a material respect will constitute jurisdictional error, because procedural fairness is an essential characteristic of the exercise of judicial power, being the power exercised by the District Court judge in the present case.’
(3) Error of law may be more familiar, but it shares with jurisdictional error a similar definitional challenge. Distinguishing between questions of law and questions of fact may not be easy, because ‘no satisfactory test of universal application has yet been formulated’... Nonetheless, decisions which turn on the construction of legislation, or that are made on a basis for which there is no evidence, are common examples of errors of law.
(4) Not only do the two bases of judicial review differ in their substance, but the material which may be deployed to establish them differs. The only practical restriction upon the evidence able to be deployed to establish jurisdictional error is likely to be relevance, in accordance with s 56 of the Evidence Act 1995 (NSW). In contrast, any alleged error of law must be apparent on the face of the ‘record’. The term ‘record’ is narrowly circumscribed, although in the case of a decision by a court or tribunal includes its reasons.
(5) Considerable care should be taken if reliance is to be placed on United Kingdom authorities. In that country, the distinction between jurisdictional error and non-jurisdictional error of law on the face of the record which is fundamental to the supervisory jurisdiction of Australian superior courts is not observed.”
56 Effect of decisions of Commission
(1) Except as otherwise provided by this Act or enabling legislation, a decision of the Commission under the Workers Compensation Acts or in relation to the police officer support scheme is final and binding on the parties and is not subject to appeal or review.
(2) A decision of or proceeding before the Commission is not—
(a) to be vitiated because of any informality or want of form, or
(b) liable to be challenged, appealed against, reviewed, quashed or called into question by any court.
(3) To avoid doubt, this section does not limit any power of the Supreme Court to provide relief for jurisdictional error in proceedings for the judicial review of a decision of the Commission.
The privative provision in s 56(2)(b) cannot exclude this Court’s jurisdiction to grant relief in the nature of certiorari for jurisdictional error: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at 581 [100]. Section 56(3) recognises as much. It does however exclude review of a non-jurisdictional error of law on the face of the record.
In light of the above, the Plaintiff must persuade me there was jurisdictional error in the Member’s application of s 57 of the PIC Act in the 16 December Determination. The Plaintiff has not so persuaded me. I address below the Plaintiff’s grounds seriatim.
Given the FAS does not distinguish which of its grounds of review relate to the 28 July Determination and/or the 16 December Determination, I shall (in the Plaintiff’s favour) treat all grounds as though they seek to impugn the 16 December Determination, save for when a ground expressly or directly seeks to impugn only the 28 July Determination or the 30 May Directions.
In the 16 December Determination, the Commission was not required to make a determination in respect of s 11A of the 1987 Act.
This ground must fail.
The Commission was not required to engage intellectually with the Plaintiff’s primary evidence for it to determine the proceedings should be dismissed for the Plaintiff’s failure to prosecute them with due despatch. The 16 December Determination did not involve a final determination of the claims.
This ground must fail.
Ground 6 concerns the denial of procedural fairness where the Commission relied upon an allegedly incorrect WPI lodgement date and failed to determine the correct jurisdictional fact. It appears the Plaintiff has attempted to “dress up” Grounds 1 and 3 into an issue that presents itself as one of procedural fairness. It does not.
This ground must fail.
This ground contends that the PIC failed to apply s 48(7) of the PIC Act and erred by also disregarding the probative evidence of the correct WPI lodgement date.
Section 48(7) of the PIC Act provides as follows:
“The Commission must take into account any written submission prepared by an Australian legal practitioner acting for a party to proceedings and submitted by or on behalf of the party (whether or not the party is represented by an Australian legal practitioner at any conference or hearing in the proceedings).”
(Emphasis added.)
The Plaintiff submits that, after the 30 May 2025 hearing, he discovered through the PIC portal that “the entire dispute relied on the fraudulent lodgement” (meaning the date of 28 August 2024) and that he then filed submissions on 7 July 2025 and 23 July 2025 requesting an investigation of this fraud. The Plaintiff went on to say in his written submissions “[t]hose submissions were ignored in direct breach of s 48(7) of the [PIC Act]”. Given that the Plaintiff had no legal representation from 23 June 2025 (and he is not a lawyer), it is not apparent to me that those submissions were, in fact, prepared by an Australian legal practitioner.
Even in the event that those written submissions “filed” on 7 July 2025 were prepared by an Australian legal practitioner, I am not persuaded that Member Turner did not consider those written submissions in his 16 December Determination. The Plaintiff appears to conflate two distinct issues: whether the Member found such submissions probative of the issues at hand, and the mandatory requirement to “consider” those written submissions.
Accordingly, this ground must fail.
The Plaintiff seeks review on the basis that the PIC “constructively failed to exercise its jurisdiction by failing to determine the Plaintiff’s application in accordance with sections 322A(1A) and [322A(3)(b)]” of the 1998 Act.
Section 322A(1A) of the 1998 Act provides:
(1A) A reference in subsection (1) to an assessment includes an assessment of the degree of permanent impairment made by the Commission in the course of the determination of a dispute about the degree of the impairment that is not the subject of a referral under this Part.
(3) Accordingly, a medical dispute about the degree of permanent impairment of a worker as a result of an injury cannot be referred for, or be the subject of, assessment if a medical dispute about that matter has already been the subject of—
(a) assessment and a medical assessment certificate under this Part, or
(b) a determination by the Commission under Part 4.
Again, the Plaintiff repeats his claim this error occurred because the incorrect lodgement date of the WPI claim was accepted. The Member was not required to consider these sections. All he was required to consider, when making the 16 December Determination, was s 57 of the PIC Act. This he did.
Accordingly, this ground must fail.
The Plaintiff claims the Third Defendant misapplied ss 322A(1A), 322A(3)(b), and 321A(2) of the 1998 Act.
Section 321A(2) of the 1998 Act provides:
(2) Without limiting subsection (1), the regulations may provide that a medical dispute may not be referred for assessment under this Part if the dispute concerns permanent impairment of an injured worker where liability is in issue and has not been determined by the Commission.
The Plaintiff further states the PIC acted ultra vires by facilitating an independent medical assessment referral because such a referral was statute-barred pursuant to s 282(3) of the 1998 Act. Again, reference is made to the service date being 24 July 2024.
This ground fails because the Member did not apply those sections, nor was he required to in the 16 December Determination.
The Plaintiff contends the Member erred in law by refusing the Plaintiff’s application for reconsideration. There is no error of law here. The Plaintiff has confused the Member considering the reconsideration application and that application being allowed. The Member did in fact consider the Plaintiff’s application, but that application did not persuade the Member to change his previous determination. Section 57 of the PIC Act allows the President or a duly appointed Member of the PIC to reconsider determinations. The section grants Members a discretion to reconsider their decisions. A Member is not obliged to do so upon such an application, as contended by the Plaintiff.
Procedural Direction WC7 provides the procedure for lodging the application for reconsideration. It does not provide any “mandatory considerations” which the Member must consider in deciding a reconsideration application.
The Plaintiff further says the Member failed to comply with s 21(4)(a) of the PIC Act. That section merely provides that Members are to comply with the applicable procedural directions issued by the President. As I have explained above, there was no non-compliance with Procedural Direction WC7 by the Member.
Accordingly, this ground must fail.
(1) Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Act is final and binding on the parties and is not subject to appeal or review.
(2) A decision of or proceeding before the Commission is not—
(a) to be vitiated because of any informality or want of form, or
(b) liable to be challenged, appealed against, reviewed, quashed or called into question by any court.
(3) The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.
The Plaintiff misapprehends the Member’s discussion of the “applicable principles to be considered in the exercise of the discretion” (16 December Determination at [14]).
The Member applied those principles regarding the exercise of the discretion to reconsider a decision of the PIC per Roche ADP in Samuel v Sebel Furniture L**imited (2006) 5 DDCR 482; [2006] NSWWCCPD 141 (Samuel). At the time of Samuel, s 350(3) of the 1998 Act had not been repealed. It has been observed that s 57(1) of the PIC Act “is in essentially the same terms as the former, now repealed, s 350(3) of the 1998 Act*”*: On Sunset Ltd v Shrestha [2024] NSWPIC 555 at [24] (SM Haddock). I am also of that view.
Accordingly, the Member did not apply the now repealed s 350 of the 1998 Act in considering whether to reconsider the 28 July Determination and was entitled to extract the principles proffered in Samuel in light of the similarity between s 57(1) of the PIC Act and the repealed s 350(3) of the 1998 Act.
Accordingly, this ground must fail.
The Plaintiff submits that the Member, in the 16 December Determination, granted leave retrospectively to the insurer to be legally represented. That is incorrect. At [12] of the 16 December Determination, leave was granted only in respect of the reconsideration application pursuant to ss 48(3), (4) of the PIC Act.
Accordingly, this ground must fail.
Ground 16 repeats Grounds 1 and 3 insofar as it says the service date of the WPI claim was a “jurisdictional fact”. Again, it was not.
It further adds the solicitor fabricated a service date to “circumvent the mandatory 14-day limit in s 282(3) of the [1998 Act]. This conduct constitutes deception within the meaning of s 235A of the…[1998 Act]”.
Section 235A of the 1998 Act provides:
(1) A person who by deception obtains, or attempts to obtain, for himself or herself any financial advantage in connection with the workers compensation scheme under this Act or the 1987 Act is guilty of an offence if the person knows or has reason to believe that the person is not eligible to receive that financial advantage.
Maximum penalty—500 penalty units or imprisonment for 2 years, or both.
(2) A person who by deception obtains, or attempts to obtain, for another person any financial advantage in connection with the workers compensation scheme under this Act or the 1987 Act is guilty of an offence if the person knows or has reason to believe that the other person is not eligible to receive that financial advantage.
Maximum penalty—500 penalty units or imprisonment for 2 years, or both.
(3) A person is not liable to be convicted of an offence against this section and any other provision of this Act or the 1987 Act as a result of the same conduct.
(4) In this section—
deception means any deception, by words or other conduct, as to fact or as to law, including the making of a statement or the production of a document that is false or misleading.
financial advantage includes a financial advantage for an injured worker (or a person who claims to be an injured worker), an employer, an insurer or a medical or other service provider.
This ground attempts to raise a new issue that was not the subject of the 28 July Determination or any determination thereafter. It is not a section the Member was required to have regard to in his assessment of the Plaintiff’s reconsideration application and, accordingly, points to no jurisdictional error.
Accordingly, this ground must fail.
I reject the Plaintiff’s application for judicial review.
Indeed, I consider that the Plaintiff’s posturing before the institution of the claim and the conduct of the proceedings by him, once the claim was commenced, have been opportunistic. Prior to the initiation of the PIC claims, the Plaintiff was advised by his first set of solicitors that he was required to attend an independent medical examination, that is to say, that the insurer would not simply abide by the opinion of Dr Hong but needed to be independently satisfied that the Plaintiff suffered a WPI of 22%. It is plain to me that not only was that advice rejected but that the retainer of those solicitors, I infer, was most probably terminated because such advice was given.
Rather, the Plaintiff has fixated on a lodgement date of 24 July 2024 despite the insurer indicating that it had not received the WPI claim until 28 August 2024. Immediately upon receiving the claim, the insurer sought further particulars and directed the Plaintiff to attend an independent medical examination. I have no reason to believe that the insurer, for some reason, confected a receipt date of 28 August 2024. In any event, for reasons I have addressed above, the relevant provision of the 1998 Act (ie, s 282(2)) does not require the employer to request an independent medical examination within the two-week timeframe set forth in s 282(3), which deals with a different request. This being so, even if the insurer received the claim on 24 July 2024 that, in and of itself, did not prevent it from requesting, on 28 August 2024, that the Plaintiff attend an independent medical examination.
The Plaintiff has not only steadfastly refused to entertain his own solicitors’ recommendation/direction to attend such an independent assessment but, worse still, has flagrantly ignored a direction made by Member Turner on 30 May 2025 that he so attend. Thereafter, he no longer participated in the 23 July arbitration which, unsurprisingly, resulted in proceedings he commenced being dismissed.
Even less surprisingly, Member Turner saw no reason to reconsider (what I consider to be) a justifiable basis to dismiss proceedings that can fairly be characterised as ones in which the Plaintiff wished to participate only on his terms.
It is not difficult to draw the conclusion that the Plaintiff has had ample opportunity since 28 August 2024 to attend an independent medical examination if he wished for the insurer to consider his WPI claim. Instead, the Plaintiff sought to advance an unmeritorious legal attack so he could prevent the insurer from considering anything other than Dr Hong’s report, arguing that both the insurer and, in addition, the PIC, were only entitled to determine the claim on the basis of a single report (of Dr Hong).
In the circumstances of the Plaintiff’s conduct, I consider that the way he has conducted himself prevented the PIC from determining his claim and there was no basis for this Court to quash, by certiorari, the PIC’s decisions. To the contrary, I consider the PIC extended enormous fairness to the Plaintiff and made proper determinations in circumstances of the Plaintiff’s conduct and prosecution of his claim. In the process he has also, wittingly or otherwise, sabotaged the balance of his claims which, in contradistinction to his WPI claim, had been the subject of an independent assessment.
All the grounds raised in the FAS fail. Accordingly, I make the following orders:
The Further Amended Summons is dismissed.
The Plaintiff is to pay the costs of the First Defendant.
**********
Aryal
Waratah Private Hospital Pty Ltd
[2010] HCA 1
(2010) 239 CLR 531
(1944) 69 CLR 407