1. The background to this dispute was outlined at paragraphs [1]-[6] of my decision of 4 July 2025, which succinctly describes the ambit of the dispute before the Member at first instance. I set these paragraphs out below:

"1. Mr Jeffrey Hayes (the respondent) was employed by CSR Limited (the appellant) as a National Logicwall Business Improvement Manager from 2016 until he was terminated from his employment on 18 May 2022. The role was primarily office-based, however, the respondent assisted with maintenance duties when required.[5]

1. On 8 May 2021, the respondent states he injured his right shoulder in the following manner. The respondent was standing on the third rung of a step ladder with one foot on the ladder and the other on top of an air dryer. His foot slipped and as he was falling, he reached for an air line with his right hand causing his right arm to overextend. He fell to the ground landing on his left leg while his right foot remained on the air dryer. He felt immediate pain in his right shoulder region and right knee.[6] The respondent was 60 years of age when the incident occurred.
2. The respondent reported the injury to the appellant on Monday, 10 May 2021. He did not require any time off work and did not seek any medical treatment apart from one consultation with an on-site physiotherapist arranged by the appellant approximately three months later. It was not until the respondent's employment was terminated in May 2022 that he sought medical treatment and subsequently lodged a workers compensation claim in June 2022 for injuries to his right shoulder, right bicep and left knee.[7] The respondent has not worked since his employment was terminated by the appellant. The termination of the respondent's employment was unrelated to the injuries subject to these proceedings.
3. The appellant issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 29 August 2022 denying liability for the respondent's injuries.[8] The appellant issued a further s 78 notice on 23 November 2022.[9] The notices denied injury or that employment was a substantial contributing factor to the injury. Sections 4, 9A, 33, 59 and 60 of the Workers Compensation Act 1987 (the 1987 Act) were relied on. The appellant also denied the respondent gave notice of his injury nor did he make a claim for compensation within the time prescribed by ss 254 and 261 of the 1998 Act.
4. An Application to Resolve a Dispute (ARD) was filed in the Personal Injury Commission (the Commission) by the respondent on 18 March 2024, claiming weekly compensation. At the conciliation/arbitration hearing before the Member, the respondent discontinued the allegation of injury to his right knee and the appellant withdrew its defence raised under s 254 of the 1998 Act. The remaining issues to be determined by the Member were whether the respondent had sustained injury to his right shoulder on 8 May 2021 in the course of his employment with the appellant and if so, whether the respondent was barred from recovering compensation due to the alleged failure to make a claim within the time frames prescribed by s 261 of the 1998 Act. If the respondent overcame those barriers, the final issue for determination was the extent of the respondent's incapacity for work pursuant to ss 36 and 37 of the 1987 Act.
5. In a Certificate of Determination dated 12 September 2024, the Member made findings in favour of the respondent in respect of injury and held that the respondent has had a continuing incapacity for work since 18 May 2022. The Member determined s 261(1) of the 1998 Act was not a bar to the recovery of compensation payable to the respondent.[10] It is from that decision the appellant now appeals."

1. There is no dispute between the parties that the threshold requirements as to quantum pursuant to s 352(3) of the 1998 Act have been met.
2. However, the 'second' appeal which the appellant now seeks to agitate is approximately 12 months out of time, contrary to s 352(4) of the 1998 Act. Leave is required for this second appeal. I will deal with this issue beneath the heading later in this decision "The Second Appeal".
3. Since this matter was commenced in the Commission, the nature of the appellant's corporate status has changed from that of a publicly listed company to a private company. By Direction dated 16 October 2025, I directed the appellant to explain this process and how the now private entity had standing to prosecute these proceedings.
4. By submission dated 17 October 2025 the appellant answered the Direction in the following terms:

"2. The Respondent Worker alleged an injury on 8 May 2021. At that time the Respondent Worker was employed by CSR Limited. The Respondent Worker commenced proceedings in respect of his alleged injury on 18 March 2024.

1. During 2024, CSR Limited was acquired by a private entity. CSR Limited was restructured to become CSR Pty Limited. All employees of CSR Limited continued to be employed by CSR Pty Limited and any employment entitlements at the time of restructure were not affected by the change.
2. The Appellant Employer is self-insured for workers compensation purposes and the self-insurer for the claim has similarly changed from CSR Limited to CSR Pty Limited.
3. Annexed and marked 'A' is a copy of a letter from Darren Parker of SIRA to the Appellant Employer dated 20 June 2025."
4. The State Insurance Regulatory Authority by letter dated 20 June 2025, Annexure 'A' to the 17 October 2025 submission, confirmed that it authorised the change from CSR Ltd to CSR Pty Ltd on its group self-insurers licence. This licence is current from 31 July 2019 to 31 July 2027.[11] The respondent's injury, which occurred on 8 May 2021, falls within this licence period.
5. These proceedings were until recently contested by CSR Ltd. It was only in the reconsideration application and the second appeal filed by the appellant that the appellant entity changed from a public to a private entity.
6. The respondent has filed submissions on this issue on 30 October 2025. The respondent submits the following:

"1. The respondent worker was employed by CSR Limited (the employer) at the time of his injury on 8 May 2021 and as at his termination in 2022. On 18 March 2024 proceedings in the [Commission] were brought by the respondent against the employer and on 12 September 2024 Member Jacqueline Snell made an award in favour of the respondent against the employer. On 10 October 2024 the employer appealed against Member Snell's decision (the first appeal).

1. An ABN Look Up search annexed to the employer's submissions shows that on 17 January 2025 the employer stopped using the ABN number 90 000 001 276 and CSR Pty Limited (the new entity) started using it. By that time, according to those submissions, the new entity had already 'acquired' the employer. A media release, attached, suggests that the acquisition of the employer had been completed by dated 9 July 2024.
2. If that date is right then the complete acquisition of the employer by the new entity preceded the Member's decision by many weeks, raising the prospect that when the Member's award was made, the employer was no longer liable to pay it and when the employer lodged its appeal against the Member's decision, the employer was not an entity with standing to bring it.
3. For the purposes of the new entity's standing in its appeal (the second appeal) against the Member's decision and in its reconsideration of Judge Phillips' appeal decision, the new entity would need to show, not only that the rights and liabilities of the employer have now been assigned to it, but that they were not relinquished by the employer prior to the decisions against the employer that the new entity is now seeking to challenge especially where there is evidence to support the proposition that the proceedings culminating in those decisions might have been maintained by the employer without it having a legal interest in the outcome and where an application to amend under rules 19(2) and 20(1) of the 2021 Rules was never made by the employer or the new entity both of whom must have known of any such transfer of those rights and liabilities."
4. At the hearing on 10 November 2025, Mr Herzfeld SC, senior counsel for the appellant, confirmed that the appellant was the same legal entity with the only difference being a change from the limited entity to a proprietary limited character. The appellant stated as it was the continuation of the same entity, no joinder of a new party was necessary. This position was accepted by the respondent. In these circumstances, there is no order that I need to make.

THE MEMBER'S REASONS - Hayes v CSR Ltd [2024] NSWPIC 507 (Hayes No 1) - Member J Snell

1. In the appeal from Hayes No 1, I summarised the Member's decision at paragraphs [37]-[49]. I set out these paragraphs below so as to give better context to this decision.

"37. The Member noted both the appellant and respondent made oral submissions. The Member did not reproduce the submissions in the reasons due to a recording being available to the parties if required.[12]

1. The Member was ultimately satisfied that on the balance of probabilities, the respondent had sustained an injury to his right shoulder on 8 May 2021 in the course of his employment with the appellant, with the employment being the main contributing factor to the injury. In making that determination, the Member first considered the circumstances of the incident as recorded throughout the lay evidence, the treating and expert medical evidence.
2. The Member noted an event/investigation-output form completed on Monday, 10 May 2021[13] that recorded a 'sprain/strain' injury to the right upper arm that had occurred on Saturday, 8 May 2021. The description of incident was noted as one foot slipping off the third step of a ladder and that he had fallen from 'a height'.[14]
3. The Member considered the AFS Onsite Assessment document[15] that was relevant to the respondent's attendance with the onsite physiotherapist as arranged by the appellant, which recorded the respondent's right shoulder complaints as a result of falling off a ladder three months earlier. The assessment recommended a right shoulder ultrasound should there be no improvement within one month.
4. The Member noted that although the respondent consulted his GP on two occasions in late May 2021 and August 2021 without mentioning his right shoulder symptoms, he had consulted the onsite physiotherapist in August 2021 complaining of right shoulder symptoms. The Member said that this supported the respondent's explanation of not wanting to disclose his right shoulder symptoms to his GP for fear of the appellant finding out and attracting an adverse reaction.[16]
5. The Member referred to correspondence from Allmac Welding & Fabrication (Allmac) dated 14 July 2023[17] that confirmed the respondent had been in negotiations with Allmac from May 2022 to secure a role as a workshop manager which was conditional upon achieving medical clearance of his shoulder injury. However, after six months of the respondent being unable to achieve the medical clearance for his shoulder, Allmac had to find an alternative to fill the role. It was this conditional employment opportunity that prompted the respondent to consult Dr Aung at the Bradfordville Family Medical Centre on 17 June 2022 to seek treatment for the right shoulder injury with a history of it occurring on 8 May 2021.
6. The Member considered the respondent's statements and ultimately accepted the respondent's history provided in his statements and under cross-examination and re-examination during the arbitration hearing of his claim. The Member was satisfied that the respondent was a credible witness and accepted his history as to the circumstances of injury as occurring on 8 May 2021.[18]
7. The Member considered the differing opinions of experts Dr Pillemer and A/Prof Miniter and was persuaded by Dr Pillemer's opinion on the basis he recorded a consistent history of injury occurring on 8 May 2021 throughout his numerous reports and he had provided considered reasoning canvassing the opinions of Dr Fung and A/Prof Miniter. The Member accepted Dr Pillemer's opinion that the respondent sustained injury to his right shoulder on 8 May 2021, being in the nature of an aggravation of a longstanding underlying rotator cuff problem.[19]
8. The second issue to be determined was whether s 261 of the 1998 Act was a bar to the recovery of compensation that may be payable under the 1987 Act. The Member accepted the respondent's explanation as to his failure to make a claim for workers compensation within six months of the 8 May 2021 incident date and determined the respondent was not precluded from recovering compensation under the 1987 Act.[20]
9. In determining whether the respondent suffered any incapacity for work since 18 May 2022 as a result of the injury, the Member considered the provisions of the 1987 Act noting the assessment of the respondent's capacity for work requires consideration as to whether he had a current work capacity or no current work capacity as defined in Schedule 3 to the 1987 Act.[21] The Member noted consideration also needs to be given as to whether the respondent could undertake suitable employment noting the provisions of s 32A of the 1987 Act.[22] The Member applied Wollongong Nursing Home Pty Ltd v Dewar[23] noting suitable employment 'must refer to a real job in employment for which the worker is suited'.[24]
10. After considering the evidence the Member was not in doubt that the respondent's right shoulder had deteriorated over time.[25] She noted Dr Pillemer's assessment on 1 November 2022 that the respondent had capacity to work at benchtop level however noted it was evident that between May 2022 to November 2022 the respondent failed to secure a position of workshop manager at Allmac due to the inability to obtain medical clearance for work as a result of right shoulder.[26]
11. The Member was ultimately satisfied that the respondent had no capacity for work from 18 May 2022. Although Dr Aung initially provided a certificate of capacity on 20 June 2022 with the respondent having no capacity for work, the Member accepted the respondent had no capacity from 8 May 2022 given his failure to secure a position as a workshop manager with Allmac due to his shoulder injury.
12. The Certificate of Determination issued on 12 September 2024 records:

'1. The [respondent] sustained injury to his right shoulder on 8 May 2021 in the course of this employment with the [appellant] with his employment being the main contributing factor to injury.

1. Section 261(1) of the Workplace Injury Management and Workers Compensation Act 1998 is not a bar to the recovery of compensation payable to the [respondent] under the Workers Compensation Act 1987 resulting from the injury.
2. The [respondent] has had no current work capacity from 18 May 2022 resulting from the injury. The parties agree the [respondent's] pre-injury average weekly earnings are $2,211.64. The [respondent] has an entitlement to weekly compensation from 18 May 2022 as follows:

(a) payable under s 36 of the Workers Compensation Act 1987 at the rate of $2,101.26, and

(b) payable under s 37 of the Workers Compensation Act 1987 at the rate of $1,769.31 (subject to indexation).'"

APPEAL - CSR Limited v Hayes [2025] NSWPICPD 51 (Hayes No 2) - President Judge Phillips

1. In Hayes No 2, the appellant advanced three grounds of appeal against the Member's decision. Each ground asserted errors of law on the part of the Member expressed in the following terms:

(a) Ground A - The Member committed an error of law by failing to provide the appellant with procedural fairness by not giving the appellant an opportunity to be heard.

(b) Ground B - The Member committed an error of law by failing to provide the appellant with procedural fairness by not dealing with submissions made on its behalf.

(c) Ground C - The Member committed an error of law in failing to provide adequate reasons for her findings.

1. Given the arguments that I have to deal with in this decision and the fact that an appeal has been filed in Hayes No 2, I will not traverse Hayes No 2 in any detail. But for present purposes, the two relevant matters arising from Hayes No 2 are the grounds of appeal that were pursued by the appellant in that matter and the Order that I made. A single Order was made in Hayes No 2 where I confirmed the Certificate of Determination in Hayes No 1 dated 12 September 2024.

1. Section 352 of the 1998 Act relevantly provides:

"352 Appeal against decision of Commission constituted by non-presidential member

(1) A party to a dispute in connection with a claim for compensation may appeal to the Commission constituted by a presidential member against a decision in respect of the dispute by the Commission constituted by a non-presidential member.

(a) 28 days after the decision appealed against is made, or

(b) a longer period determined or allowed, whether generally or for the kind of proceedings, in accordance with the Commission rules.

(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.

(5A) An appeal under this section stays the operation of the decision appealed against pending the determination of the appeal. However, an appeal does not stay or otherwise affect the operation of a decision as to weekly payments of compensation and weekly payments of compensation remain payable despite any appeal.

(6A) On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.

(7) Alternatively, the matter may be remitted back to the non-presidential member concerned, or to another non-presidential member, for determination in accordance with any decision or directions of the Commission (including, in the case of a decision about the degree of permanent impairment resulting from an injury, a direction to refer the matter for assessment by a medical assessor under Part 7)."

1. Procedural Direction WC3 - Presidential appeals and questions of law describes the practice and procedure for an appeal against the decision of a non-presidential member. The following paragraphs are relevant to this matter:

"13. An appeal can only be made within 28 days after the making of the decision appealed against (s 352(4) of the 1998 Act). A decision is made when the Commission issues a Certificate of Determination under s 294(1) of the 1998 Act. Time to lodge an appeal commences to run on the day after the Certificate of Determination is issued. An appeal is made when the appeal application is registered by the President. An appeal is registered when it is accepted by the President and affixed with the seal of the Commission.

14. In exceptional circumstances, the Presidential member may extend the time for making an appeal (s 352(4)(b) of the 1998 Act; r 123 and r 133A of the PIC Rules). If the appeal application is lodged more than 28 days after the date of the decision appealed against, the appealing party must:

(a) as soon as practicable give notice to the other parties of the intention to seek the extension;

(b) make the extension application at the same time as the relevant application to which it relates;

(c) provide the reasons why the appeal has been lodged out of time;

(d) provide full details of the arguments in favour of granting an extension of time for the making of an appeal, and

(e) provide details of the demonstrable and substantial injustice that losing the right to appeal would allegedly cause.

24. The grounds of appeal must be clearly and succinctly stated. The grounds of appeal must identify:

(a) the respects in which error of law, fact or discretion is alleged to have occurred;

(b) any material findings it is said the member should or should not have made, and

(c) any material facts it is said the member should or should not have found."

1. Sections 56 and 57 of the Personal Injury Commission Act 2020 (the 2020 Act) provide:

(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.

57 Reconsideration of decisions of Commission

(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 -

(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

(d) there is an inconsistency between the stated decision and the stated reasons."

Some principles governing reconsideration applications

1. The respondent's response to the reconsideration application has referenced the principles set out by Deputy President Snell in Ceccato v Australian Steel Mill Services Pty Ltd (No 2).[27] Ceccato dealt with the reconsideration power in the former s 350(3) of the 1998 Act. Since the commencement of the Personal Injury Commission on 1 March 2021, that power now sits in s 57(1) of the 2020 Act. Section 57(1) of the 2020 Act is in substantially the same terms as the former s 350(3) of the 1998 Act, meaning that the remarks about the nature of the reconsideration power in Ceccato are still apposite to the new provision.
2. In Ceccato the following principles were set out and they are principles which I respectfully endorse.

"14. In Hilliger v Hilliger[28] Street CJ dealt with a provision, similarly worded to s 350(3) of the 1998 Act, in the Landlord and Tenant Amendment Act 1948. The decision of Hilliger was applied by the Court of Appeal, to the exercise of the reconsideration power (at the time s 36(2) of the Workers' Compensation Act 1926) by the then Workers Compensation Commission of New South Wales, in Hardaker v Wright & Bruce Pty Ltd.[29] Their Honours Owen and Walsh JJ referred to 'the width of the power' and said:

'It is important, naturally, to keep well in mind the distinction between the existence of the power and the occasion of its exercise, and courts should not lose sight of the general rule that public interest requires that litigation should not proceed interminably. A party who seeks or opposes an order must produce all the available evidence at the original hearing, and courts must be on their guard to refuse to allow the same matter to be litigated again and again. But at the same time it is clear that the legislature intended to leave with the prescribed courts the power of reviewing any decision to see that justice is done between the parties.'[30]

1. Schipp v Herfords Pty Ltd[31] involved the reconsideration power, at a time when it was found in s 36(2) of the Workers' Compensation Act 1926, and the provision for appeal to the Supreme Court was found in s 37(4) of that Act. Samuels JA (Reynolds JA agreeing) said:

'To my mind, there was much more involved here than delay alone. First, the worker had not brought the appeal to this Court for which s 37(4) provides. It seems to me that the terms of s 37 as a whole clearly intend that the primary mode of challenge to errors of law is to be by appeal to the Supreme Court. I say 'primary' because such errors may be dealt with also under s 36(2). But I do not think that these review provisions are to be regarded as fully alternative to the right of appeal. They may be capable of doing the same work, but the extent to which they should be permitted to perform the same function ought properly to be controlled, and the means of control is to be found in the discretion.'[32]

1. In Maksoudian v J Robins & Sons Pty Ltd Bishop J said:

'There is no doubt that the discretion of this Court to reconsider is wide and far reaching. The task of the Court is to balance the policy requirement of finality of litigation with the obligation to rectify any clear cut injustice. The cases do not comprehensively indicate how the Court is to approach this task, but it does seem that two broad requirements are laid down. The first of these is that the material leading to an application for reconsideration must be what can broadly be described as 'fresh evidence', namely material that with reasonable diligence could not have been put before the Court at the time of the original proceedings and the application for reconsideration has to move with appropriate speed and diligence to bring that matter to the Court's attention. The second point is that the fresh evidence must be of such a nature that if it had been before the Court when the original proceedings were heard it would more likely than not have affected the outcome of the proceedings: Hardaker v. Wright & Bruce Pty Ltd (1962) 62 SR (NSW) 244 and Hilliger v Hilliger (1952) 52 SR (NSW) 105.'[33]

1. In Galea v Ralph Symonds Pty Ltd, O'Meally J said '[t]here is a distinction between fresh evidence and more evidence'.[34]
2. It is helpful to quote the passage from the decision of Roche ADP in Samuel [v Sebel Furniture Ltd [2006] NSWWCCPD 141] that was referred to in the submissions of the parties:

'Having regard to the above authorities and the provisions and objectives of the 1998 Act I believe that the following principles are applicable to reconsideration applications under section 350(3) of the 1998 Act:

1. the section gives the Commission a wide discretion to reconsider its previous decisions ('Hardaker');
2. whilst the word 'decision' is not defined in section 350, it is defined for the purposes of section 352 to include 'an award, order, determination, ruling and direction'. In my view 'decision' in section 350(3) includes, but is not necessarily limited to, any award, order or determination of the Commission;
3. whilst the discretion is a wide one it must be exercised fairly with due regard to relevant considerations including the reason for and extent of any delay in bringing the application for reconsideration ('Schipp');
4. one of the factors to be weighed in deciding whether to exercise the discretion in favour of the moving party is the public interest that litigation should not proceed indefinitely ('Hilliger');
5. reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained at the first Arbitration is later obtained and that new evidence, if it had been put before an Arbitrator in the first hearing, would have been likely to lead to a different result ('Maksoudian');
6. given the broad power of 'review' in section 352 (which was not universally available in the Compensation Court of NSW) the reconsideration provision in section 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by Arbitrators;
7. depending on the facts of the particular case the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 ('Anshun') may prevent a party from pursuing a claim or defence in later reconsideration proceedings if it unreasonably refrained from pursuing that claim or defence in the original proceedings ('Anshun');
8. a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration ('Hurst'), and
9. the Commission has a duty to do justice between the parties according to the substantial merits of the case ('Hilliger' and section 354(3) of the 1998 Act).'[35]"

1. The appellant seeks a reconsideration of my decision in Hayes No 2.
2. A single ground of reconsideration is advanced which is expressed in the following terms:

"Ground A - The appeal was dismissed without fully addressing whether there had been an error of law, fact or discretion."

1. The appellant refers to s 57 of the 2020 Act as being the source of the reconsideration power and that it is consistent with the objects of the Act[36] and the guiding principle.[37] The appellant correctly notes that s 57 is not intended to be a substitute for an appeal.[38] However the appellant submits that:

"The determination of a reconsideration, as opposed to an appeal, would accord with the objects of the Commission as set out in s 3(b) and 42 of the [2020] Act. A reconsideration will likely be a quicker process to an appeal, and will undoubtedly be more cost effective for the parties. The determination of a reconsideration would uphold the objects of the [2020] Act as described in s 3(d) of that Act."[39]

1. The appellant correctly records that the Court of Appeal decision in Culhana was delivered almost two weeks after I published my decision in Hayes No 2. The appellant then references Culhana at [92] and [62] before stating that, consistent with Culhana, I was obliged to identify the correct inferences to be drawn from the facts and correct them if I would have reached a different conclusion.[40] The appellant at paragraph [26] of its submissions says:

"The failure to engage with the facts as presented, to the distinction of reviewing those facts as contained within the decision of Member Snell, were evident at:

The Member considered the [worker's] statements and ultimately accepted the [worker's] history provided in his statements and under cross-examination and reexamination during the arbitration hearing of his claim. The Member was satisfied that the [worker] was a credible witness and accepted his history as to the circumstances of injury as occurring on 8 May 2021.

... In light of this, the Member was required to perform an evaluative assessment of the evidence before the Commission on this point - which involved a consideration of the lay evidence led by both parties. This is of course a matter of fact and degree upon which minds might differ.

... As I read the Member's reasons, the Member made a positive finding at reasons [95] which was to accept the [worker's] evidence. The remarks about the three [employer's] witnesses' recollection being affected by the passage of time was an available evaluation of that evidence. ...

... The Member was undertaking this process to determine the respective weight to be accorded to the evidence. That this issue had to be determined in this matter was obvious to the parties, and thus could not have taken them by surprise.

It is apparent from a review of this section of the decision, that the Member did indeed deal with the nature and materiality of the incapacity issue, which was the Member's duty in accordance with Wang. The fact that each and every submissions made by the [employer] was not specifically raised and referred to in the decision was not the Member's task."

1. The appellant asserts that I did not undertake an analysis of the evidence or a rehearing as required by Culhana. The failure to undertake a rehearing, it is submitted, is an obvious error which enlivens the reconsideration power.[41]
2. The respondent points to the nature of the appeal pursued by the appellant in Hayes No 2, which relied on three specific alleged errors of law. The respondent submits that "... it was not argued by the employer on appeal that the Member made an error of fact or discretion on the evidence or submissions before her or drew an incorrect inference."[42]
3. The respondent says that the decision was not made on the basis of whether a finding of fact was "open" to the Member, which was the case in Culhana. The respondent goes on to submit that the reconsideration power does not authorise a Presidential member to "consider matters outside of the grounds of appeal nor test the soundness of the inferences drawn by the Member unchallenged on appeal. It does not in this case permit a reconsideration on the basis of the decision in [Culhana] ...".[43]
4. After making reference to the decision in Ceccato, the respondent submits that given the nature of the grounds of appeal in Hayes No 2, the appropriate avenue of recourse is an appeal to the Court of Appeal under s 353 of the 1998 Act.[44]
5. This matter was heard before me on 10 November 2025. As is often the case where written submissions are augmented by oral argument, what seemed to be a divergence in opinion between the parties changes or is not of the same import. This was the case in this matter.
6. In this case the appellant had concluded that the respondent had maintained that there was no capacity to entertain the reconsideration application. This view was held because the respondent had submitted that the reconsideration power was not available in this case because the appeal dealt with by me in Hayes No 2 was limited to the three errors of law and the reconsideration application went beyond those discrete points. At the hearing, senior counsel for the respondent did not dispute the existence of the reconsideration power. Rather, the respondent's argument was that as a matter of discretion it was not appropriate that I exercise it.[45] The appellant having heard this position, embraced the submission that reconsideration as a matter of power was open to be exercised.[46] This meant that the question that I am called upon to decide is whether I should exercise my discretion to reconsider my 4 July 2025 decision.
7. The gravamen of the appellant's submission was expressed in the following terms:

"the appellant could not with reasonable diligence have raised the appeal grounds that we seek to rely on before your Honour before Culhana. Had the appellant sought to do so those grounds would have met with the reasoning in Raulston ...."[47]

"As part of reconsidering the matter, that being the language in the statute, your Honour would have all the same powers that your Honour would have in the original consideration of the matter and that would extend to granting leave to raise new grounds of appeal that were not in the original appeal papers."[48]

1. The appellant stated that while Schipp made it clear that the structure of the Act was that the appeal was the primary mode of relief, there was no inhibition in dealing with errors by way of reconsideration.[49]
2. In response, senior counsel for the respondent submitted the following: "The point I'm endeavouring to make is that it is a complete overstatement of Raulston that say that it shuts out and has always shut out attacks on factual findings. It was always open to a Presidential Member to say, look, the evidence before the Arbitrator or the Member was not strapped up by a demeanour-based finding, it just can't stand, it's a mistake."[50] The respondent says that all the appellant did was make a forensic decision not to agitate what it now says are factual errors. These issues were known because they have been put to the Member at first instance.[51]
3. The respondent also points to the appeal which has been filed against my decision in Hayes No 2 as a factor against exercising the discretion in the appellant's favour.
4. In reply, the appellant accepted that it was always possible to advance an error of fact on appeal, but before Culhana it was not possible to do so on the simple ground that the finding was wrong.[52] The appellant submitted that:

"The point of Culhana is that you can put the same argument on a factual point and if the Presidential Member takes the view that the factual finding that should be made is different from the one that the Member made then that's error, that is enough and that was what you couldn't do previously."[53]

1. The respondent in a further reply pointed to the High Court's decision in Piening v Wanless[54] stating that it is still the law. This case, the respondent submitted, stands for the proposition that if the law changes, one cannot attempt to undermine a decision given under the old law.

1. I accept the appellant's submissions about the width of the power to reconsider. Section 57 of the 2020 Act is drafted in wide terms, "The Commission may reconsider any matter that has been dealt with by the Commission ...", and this would include reconsidering matters not raised in the earlier hearing. I accept the appellant's submissions that I have the power, under s 57 of the 2020 Act, to reconsider my decision of 4 July 2025 on the basis of the new appeal grounds raised by the appellant.[55] The fact that an appeal might be the primary mode of relief (Schipp) does not ipso facto preclude a reconsideration. 'Primary' is not to be equated with'only'. The question is whether I would exercise my discretion to do so. This is a discretion of the House v The King type.[56]
2. In summary, the question is not one of power, or a lack thereof, rather the question is one of discretion.
3. For the following reasons, I decline to exercise my discretion to grant the appellant a reconsideration of my decision of 4 July 2025.

(a) Notwithstanding the relative closeness in time between my decision of 4 July 2025 and the Court of Appeal delivering its decision in Culhana on 17 July 2025, the principles arising from cases such as Piening and R v Unger[57] remain good law. The fact is that from time to time the Court of Appeal will decide a matter like Culhana which produces a change in the law. When this occurs that does not afford a litigant a second opportunity to relitigate issues due to the success of a party in another case.[58] The fact that the appellant, by virtue of the timing of the decisions, is not able to avail itself of the possible benefit of the new approach post-Culhana, means that the appellant is in no different position to all the previous litigants whose cases were previously decided on the basis of the now decided too narrow approach to factual matters provided by Raulston.

(b) The appellant quite rightly acknowledged that appeals against a non-presidential member's decision have for a significant period of time been able to assert errors of fact.[59] However, the appellant says that such an appeal would not have been fruitful in the pre-Culhana landscape and that is why that path was not taken.[60] The effect of this submission is that the appellant has made a forensic decision not to challenge those findings for the reasons expressed. I accept the respondent's submission in this regard.[61] I would note that unlike a fresh evidence question, the issues that the three factual errors go to were live issues before the Member and the respondent was cross-examined about them. There is nothing new about these factual matters, the appellant was well aware of them.

(c) In Schipp, Samuels JA did note that an appeal is the "primary mode of challenge".[62] As I said above, this does not preclude a reconsideration, rather which mode is to be preferred is, as Samuels JA said in Schipp, a matter controlled by the exercise of discretion. In this case the appellant not only has appeal rights, but it has also acted on them and filed an appeal against my 4 July 2025 decision. Part of the exercise of my discretion involves doing justice between the parties.[63] Presently the appeal in the Court of Appeal is sitting in the list effectively pending my decision in this application. Those appeal rights therefore remain live and ready to be activated after this decision is issued. Usually a respondent in such a situation will have to contend with either a reconsideration application or an appeal, and not both at once. In this case the appellant is effectively seeking to have the benefit of both types of relief with respect to my 4 July 2025 decision. This is not a just or equal outcome for the respondent. It is possible that the respondent may be unsuccessful in the appeal and the matter is remitted back to the Commission. But that is a normal outcome in the appellate process. It is not a normal or usual outcome for a respondent to be vexed twice at the same time with respect to the same decision.

(d) I do not consider that the delay in making this application is to be held against the appellant. I accept that once Culhana was decided and reflected upon in the context of this matter, the appellant moved with due dispatch to file this application. Delay forms no part of my reasoning in declining to exercise the discretion.

(e) I now turn to the merits of the second appeal. Considering this matter and doing justice between the parties is part of the consideration as to whether I will reconsider the matter in the exercise of my discretion.[64] There are two aspects to this. The first is whether or not a second appeal is an available remedy based on the principles arising from Wishart. For the reasons I later express in this decision, the second appeal is not available to the appellant. However the second point is this - the appellant wishes to agitate the issues arising in the second appeal in this reconsideration. I consider that the reconsideration power is of such a width that this would be possible,[65] should I allow it as a matter of discretion. I will therefore consider the merit of those arguments, in light of what was said in Culhana and in particular at [91] of that decision.

(f) In the first instance conduct of this matter, the appellant made an application for leave to cross-examine the respondent, which application was granted by the Member. I have closely read the Member's decision and in my opinion, the Member patently accepted the evidence of the respondent and the explanations he gave. At reasons [95]-[96] the Member recorded:

"In his initial statement dated 6 July 2022, which he provided to an investigator, Mr Hayes said he felt immediate pain in his right shoulder when his foot slipped off the ladder in the incident occurring on 8 May 2021, his history as to the circumstances of injury being in consistent terms to that provided to Dr Aung a few weeks' earlier, on 17 June 2022. Mr Hayes was cross examined and re-examined during the arbitration hearing of his claim and as did Dr Pillemer, I am prepared to accept Mr Hayes' history of injury occurring on 8 May 2021 and also his explanation as to why he did not report his symptoms to his general practitioners until some considerable time later. I consider Mr Hayes' evidence to be believable and I accept him as a credible witness, despite the evidence provided by Ms Ward, Mr Skinner and Mr Kooyman more than a year after the incident occurring on 8 May 2021 to the effect that Mr Hayes had made no complaint to them of a problem with his right shoulder between 8 May 2021 and the termination of his employment a year later. It may be that with the passage of time Ms Ward, Mr Skinner and Mr Kooyman merely have no recollection of any complaint made by Mr Hayes to them of a problem with his right shoulder between 8 May 2021 and the termination of his employment a year later.

While on 8 December 2022 Dr Rae recorded a history of Mr Hayes landing predominantly on his right arm when he fell off the ladder in the incident occurring on 8 May 2021 and only starting to notice right shoulder symptoms 'a day or two later', I do not believe this anomaly to be of any great moment in circumstances where Dr Pillemer in his capacity as independent medical examiner recorded a consistent history of injury occurring on 8 May 2021 when he independently assessed Mr Hayes just over a month earlier on 1 November 2022, particularly so as Dr Rae, as a treating orthopaedic surgeon, was of course more concerned with treatment of Mr Hayes' right shoulder injury, rather than the cause of the injury." (emphasis added)

Whilst the Member has not made a specific demeanour type of finding, it is apparent that after hearing the respondent's evidence, the Member accepted his evidence. In the sense referred to in Culhana at [91], the Member has that advantage over me and due regard must be had to that fact. Before me, counsel for the appellant took me to the various problems, as the appellant saw it, with the respondent's evidence.[66] I might say that in Hayes No 2, I did review the evidence, albeit in dealing with what were assertions about errors of law said to have been made by the Member. This can be found at paragraphs [63]-[71] of my decision. As I stated at [70], none of the evidence of the appellant's witnesses was "trenchantly contrary to that of the respondent." It is true that there were problems with the respondent's evidence, which were traversed in cross examination and were the subject of the appellant's submissions. The evidence which explained these problems was given by the respondent and accepted by the Member. In Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc[67] the Court of Appeal said: "The parties were engaged in adversarial litigation before his Honour. A judge is entitled to accept, reject, or determine the adequacy of evidence as part of that process. Evidence is either persuasive or not."[68] This is precisely the situation in this matter. The contest was adversarial and it was up to the Member to decide upon the adequacy of the respondent's evidence, in particular, to explain the issues which the appellant was relying upon as impacting upon his credit and thus the weight to be afforded to his evidence. I do not see any error in the Member's approach. Culhana has not had the effect of changing the approach to fact finding. The Member was faced with a challenge to the respondent's evidence. In Australian Air Express Pty Ltd v Langford,[69] McColl JA said the following: "The first [preliminary observation] concerns the approach an appellate court should take to reviewing an exercise whose resolution is 'one of 'fact and degree' in respect of which views might legitimately differ': Roy Morgan Research Limited v Commissioner of State Revenue (1997) 37 ATR 528 at 533. In such a case it is not enough that an appellate court might have come to a different conclusion - before an appellate court will intervene the appellant must show error on the part of the primary judge: JA & BM Bowden & Sons Pty Limited v Chief Commissioner of State Revenue (2001) NSWCA 125; (2001) 105 IR 66 at 68 [14] per Ipp JA."[70] In my view the Member has approached the process of fact finding in a methodical way, performing the evaluative judgment I have referenced from Langford. No error in the fact finding has been established. As per Culhana, if I was of the opinion that an error of fact finding has been made and I would reach a different conclusion, I would "not shrink from giving effect to it."[71] I detect no such error and as a result I would not intervene. I do not accept the findings were wrong as the appellant submitted. In my view the merits of the proposed second appeal are poor. This is another reason which militates against exercising my discretion in the appellant's favour.

(g) Senior Counsel for the appellant addressed me on respective prejudice should my discretion be exercised either way.[72] Possible prejudice inter partes does not figure in my decision to not exercise my discretion, I do not consider that prejudice is a matter which favours one party over the other. As there is an appeal extant in the Court of Appeal, issues about my decision and potential Culhana related arguments are going to be argued in any event.

1. The appellant has filed this 'second appeal' against the Member's decision in Hayes No 1 dated 12 September 2024. Three new grounds of appeal are advanced, each alleging an error of fact. They are:

"Ground A - The Member's determination contained an error of fact that the Respondent Worker has had no capacity for work from 18 May 2022.

Ground B - The Member's determination contained an error of fact that the Respondent Worker suffered an injury to the right shoulder on 8 May 2021.

Ground C - The Member's determination contained an error of fact that the Respondent Worker did not report the alleged right shoulder symptoms to his GP to avoid the employer anticipating he would make a workers compensation claim."

"15. The Appellant Employer submits leave should be granted to proceed with this appeal out of time given the circumstances explained above generated by the decision in Culhana after the disposition of the Appellant's original appeal. The Appellant Employer would suffer substantial injustice if leave were not granted so as to allow the appeal to be determined as it would have been had Culhana been handed down before the original appeal was determined. There will be no prejudice to the Respondent Worker if leave is granted for this appeal to proceed out of time, as this appeal can be determined with the application for reconsideration filed on 21 August 2025.

1. The Appellant acknowledges that there are some decisions in other contexts which may suggest that the operative decision is now Judge [Phillips'] decision and that a second appeal from Member Snell's decision is not possible. They include:

(a) Christodoulou v Disney Enterprises Inc [2006] FCAFC 183; (2006) 156 FCR 369;

(b) Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254;

(c) Mulholland v Australian Electoral Commission [2014] FCA 136; (2014) 219 FCR 1; and

(d) Khamiss v Director of Public Prosecutions (NSW) (No 2) [2025] NSWCA 193.

1. The Appellant is not aware of any consideration of this issue in the context of the Commission or its predecessors. The application of an approach of [the] kind referred to above, which precludes a second appeal, depends on the context supplied by the particular legislation at issue, most relevantly here the [2020] Act. If the power of reconsideration in s 57 is not sufficient to permit the grounds of appeal outlined below to be substantively determined, a second appeal must be possible. Only that conclusion would conform to:

(a) the object of the [2020] Act, set out in s 3(c), being to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible;

(b) the restatement of that object as the Commission's guiding principle in s 42 of the [2020] Act; and

(c) the requirements in s 43 of the [2020] Act that proceedings be conducted with as little formality and technicality as the proper consideration of the matter permits, and that the Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms."

1. The respondent opposes the second appeal proceeding. The respondent says the appeal is weak for procedural reasons and says that my decision in Hayes No 2 is now the operative decision, meaning that Hayes No 1 cannot be appealed.[73]
2. The respondent continues:

"7. Secondly, and again fundamentally, it is not permissible to extend time for an appeal, even a first appeal, on the basis, as it was in this case, that prior to a determination of a court that overturned the appellant's established understanding of the law in question, the appellant had purportedly been refraining from appealing in reliance on the earlier law (Pascoe v SAS Trustee Corporation [2022] NSWCA 244 (1 December 2022) per Basten JA at [71]; Piening v Wanless (1968) 117 CLR 498; [1968] HCA 7 per Barwick CJ at 505; and R v Unger [1977] 2 NSWLR 990 per Street CJ at 995D, Begg and Ash JJ agreeing).

1. The rationale in preventing a 'second opportunity' (Barwick CJ in Piening at 505) or a late appeal for such reasons was given in Unger per Street CJ at 995D:

'This finality of decision in each individual case leaves the courts free to permit a judicious flexibility in the development of principle in later cases, free from inhibition lest such development may set at large disputes that have previously been resolved. But the remedy for the erroneous decision is by way of such a challenge and not, as the majority of the Supreme Court seems to have thought, in the prolongation of litigation by affording a litigant a second opportunity after the error has been put right in other proceedings by other litigants.'

1. Thirdly, the more discretionary consideration of the length of time itself would need to be viewed in light of the operation of the two legal principles referred to above and given, without exaggeration, the extremely long period out of time that has passed since the time limit expired, leave would not be granted to the appellant to extend time. It is more than a year since the 28-day appeal period elapsed following the Member's decision. Significantly, given the appellant's reasoning for not lodging the appeal, namely, the clarification to the law brought about by the decision of [Culhana], it is notable that the appellant did not lodge the appeal promptly or even within 28 days of that decision. Rather, the appeal was lodged 84 days after that decision."
2. The written submissions were supplemented by oral argument on 10 November 2025.
3. The appellant's primary position is that procedurally, the reconsideration application was the preferred approach to dealing with the matters which have arisen in this matter. The appellant points to the various beneficial provisions in the 2020 Act and compares them with what it describes as the "highly technical question" considered in Khamiss v Director of Public Prosecutions (NSW) (No 2),[74] and that such a technical approach is not consistent with these provisions.[75] The appellant says that in respect of concerns about "perpetual appeals and reopening applications",[76] this matter is different as it falls within what is described as the "transition period"[77] given the timing of the earlier appeal and the decision in Culhana. The timing of appeals, decisions and Culhana being decided means, in the appellant's view, that issues associated with finality are not as acute in this matter.[78]
4. I asked senior counsel for the appellant whether, as the statute gave me a specific power to confirm the earlier decision, did this not have the effect of displacing the earlier decision? In reply senior counsel stated: "And that is the strongest feature against why a second appeal is possible."[79] The appellant quite properly noted that ultimately this question depends on the nature of the statutory scheme.[80] I also put the proposition that the authorities on this question did not seem to make any differentiation of the principle based upon the nature of the power being exercised, that is judicial, quasi-judicial or administrative.[81] This observation was accepted by the appellant.[82]
5. In response the respondent stated that the second appeal was "like an appeal from Caesar to Caesar and that's the sort of thing that shouldn't be encouraged because of the difficulties my learned friend frankly acknowledges."[83] The respondent says that I should not entertain the second appeal.
6. In reply, senior counsel for the appellant stated the following:

"in light of the fact that it has now been made clear that it is not contended before your Honour that the reconsideration power is unavailable and that it is all about the matter of discretion it does seem that that the question of whether a second appeal is available doesn't arise because all parties - of course, your Honour would need to be persuaded that it's the correct view but all parties, I think, are now of the view that as a matter of power what we seek for your Honour to do can be done within the context of the reconsideration power."[84]

1. Given what I have decided in respect of the reconsideration application, it is necessary that I deal with the question of the second appeal. The second appeal was not formally abandoned, rather it was put as an argument which was secondary to the reconsideration application. Senior counsel for the appellant quite properly acknowledged some of the difficulties associated with the second appeal, but the second appeal remained a live issue which requires determination.
2. In my view, before undertaking any consideration of the application for leave to bring the second appeal, I must decide the preliminary issue as to whether that appeal can proceed in any event. This will involve a consideration of the Wishart line of authority and its application (if any) in the context of the Commission's statutory framework.

An outline of the decision making - appellate framework in the Commission

1. A combination of provisions in the 1998 Act and 2020 Act govern decision making and appeals from the Commission's Workers Compensation Division, where the first instance decision maker is a non-presidential member.[85]
2. Decisions of members are final and binding,[86] subject to what is provided for in the enabling legislation[87] or by judicial review proceedings.[88]
3. Appeals from non-presidential members to Presidential members are governed by s 352 of the 1998 Act. Appeals are as of right and limited to errors of fact, law or discretion[89] and must be exercised within 28 days of the decision or such longer period as allowed.[90] Fresh evidence is permitted to be led on appeal only with leave on the terms specified.[91]
4. A Presidential member may confirm the earlier decision, revoke it, or make a new decision in its place.[92] If the decision is revoked, it can be remitted back to a non-presidential member to be decided in accordance with the decision or any directions.[93]
5. The scope of the decision covered by s 352 of the 1998 Act is wide and covers an award, interim award, order, determination, ruling or direction.[94]
6. An appeal from a Presidential member's decision is to the Court of Appeal in a point of law.[95]
7. The 2020 Act contains a number of broad, beneficial provisions directing the Commission to decide the real issues "justly, quickly, cost effectively and with as little formality as possible"[96] and that "The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms."[97]
8. The way applications are commenced and responded to is modelled on adversarial proceedings.[98]
9. In Miller v Secretary, Department of Communities and Justice,[99] Ward P also noted the adversarial nature of proceedings in the Commission and the finality of decisions being sufficient to engage the Anshun estoppel principle.[100] Ward P also found notwithstanding the provisions of the then s 354(1) of the 1998 Act,[101] that there was no inconsistency between that provision, which provided for proceedings to be conducted with as little formality and technicality as the proper consideration of the matter permits, with the application of the Anshun principle. Her Honour the President said that this was because "Anshun estoppel is neither a formality, nor a technicality, but a principle of law of fundamental importance which bears squarely upon the rule of law and issues of fairness and justice."[102]

An outline of principles following on from Wishart v Fraser

1. The Court of Appeal has recently considered the effect of first instance orders being confirmed on appeal and the effect of this upon the status of the original order in Khamiss where it set out the following principles:

"42. The general principle is that judicial review is not available in respect of a verdict or orders of a lower court where that verdict or those orders have been superseded by orders of a court higher in the judicial hierarchy. That principle was accepted by the High Court in [Wishart]. In that case, the appellant had been convicted of an offence under regulations made under the National Security Act 1939-1940 (Cth) by a Court of Petty Sessions exercising federal jurisdiction. The appellant appealed to the Court of Quarter Sessions, which affirmed the conviction. The appellant then brought an appeal from the decision of the Court of Petty Sessions to the High Court by means of an application for statutory prohibition. As Dixon J explained (at 480), at the time 'Under sec 39(2)(b) of the Judiciary Act 1903-1940 an appeal lies as of right to this court from the decision of a court of a State exercising Federal jurisdiction, wherever an appeal lies, under State law, from its decision to the Supreme Court. An appeal by way of statutory prohibition lay from the [Court of Petty Sessions] to the Supreme Court, but no such appeal lay from the Court of Quarter Sessions'. Any appeal from a decision of the Court of Quarter Sessions required special leave under s 35 of the Judiciary Act.

1. One of the questions raised by the appeal to the High Court was whether it could be maintained in circumstances where the Court of Quarter Sessions had confirmed the conviction. The High Court held that it could not. Two principal reasons were given. One was that the decision of the Court of Quarter Sessions superseded the decision of the Court of Petty Sessions. As Starke J explained in Wishart (at 478; see also Williams J at 491):

'If the Court of Quarter Sessions had reversed the decision of the stipendiary magistrate, its judgment would have held 'the field to the exclusion' of the conviction by the stipendiary magistrate. And when Quarter Sessions affirmed the conviction, its judgment was equally conclusive, for it operated as a judicial determination by a competent and higher authority that the conviction was right. ... That judgment therefore holds the field so long as it stands unreversed, and precludes this court making any judicial determination to the contrary.'

1. The second reason was that any decision on the issue by the High Court would give rise to an inconsistency. As Dixon J explained (at 482-3; see also Rich ACJ at 477):

'To that question there can, I think, be only one answer. It is not denied that the order of the Court of Quarter Sessions was within its jurisdiction and was validly made. While it stands it is a judicial declaration by a competent court exercising Federal jurisdiction establishing the order of the magistrate and preventing its being called in question. If this court made an order setting aside the conviction, there would be two inconsistent judicial orders in operation at the same time, that of the Court of Quarter Sessions confirming the conviction and that of this court discharging it. It would, of course, be open to the legislature to authorize a superior court to deal with an order of an inferior court notwithstanding that an intermediate court had confirmed it and the order of confirmation was not brought up for review. But even if the Justices Act 1902 (NSW) has any such effect in State jurisdiction, at all events so much of it as so operates has no application to appeals to this court from courts exercising Federal jurisdiction.' (Emphasis added).

1. The scope of the principle stated in Wishart and its rationale remains in some doubt."
2. The Court then proceeded to consider a number of authorities before stating the following statement of principle:

"It is apparent from these decisions, and others we were taken to, that difficult questions may arise in determining whether the decision of an intermediate court replaces the decision appealed from or whether it leaves all or part of the primary decision intact. In the former case, unless the decision of the intermediate court can itself be set aside for jurisdictional error, that decision is the operative one with the result that judicial review is not available in respect of the primary decision. On the other hand, if the decision of the intermediate court is not the operative decision because its scope was limited or its effect was not to displace the primary decision, then judicial review of the primary decision may be available, subject to the possibility that the applicant seeking judicial review is bound by an Anshun estoppel or the court in the exercise of its discretion refuses relief."[103]

1. In the workers compensation area, this question was examined by the Court of Appeal in Vitaz v Westform (NSW) Pty Ltd.[104] This was a case involving the Commission's predecessor body, the Workers Compensation Commission of NSW (WCC). Vitaz involved a first instance medical assessment that had been appealed to an internal WCC medical appeal panel. The panel dismissed the appeal and subsequently the worker sought judicial review against both decisions.
2. Basten JA delivered the leading decision. His Honour considered the authorities commencing with Wishart before posing the questions to be answered, which are relevant to the considerations in this matter:

"14. The application of these principles in the present case depends on three propositions, namely that:

(a) the principles applicable in judicial proceedings have the same operation in relation to medical assessments for the purposes of the Workers Compensation Act 1987 (NSW) reviewed by an Appeal Panel;

(b) the principles apply in respect of an appeal which does not lie as of right, but only in respect of particular grounds and with the approval of the Registrar, and

(c) the principles continue to apply despite the orders made by the High Court in Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531.

1. In respect of the first point, the answer must depend upon the specific statutory scheme rather than the effect under general law principles of a judicial determination. The need to address the relevant provisions of the [1998 Act] indicates that the first and second points should be considered together.
2. The matter for consideration by an approved medical specialist is a 'medical dispute' which is referred for assessment: s 321(1). The assessment may be the subject of an appeal, but only in respect of matters identified in s 327(3), which include that the assessment was made 'on the basis of incorrect criteria' or that the certificate contains 'a demonstrable error': s 327(1) and (3)(c) and (d). Although these grounds appear to involve limitations on the rights of review, they are not necessarily restrictive. Because the certificate includes the reasons and other matters referred to in s 325(2), the reference to 'demonstrable error' in the certificate would seem to allow reasonably broad scope for an appeal. If the Registrar is not satisfied that at least one of the grounds has been made out, the appeal will not proceed, and the Appeal Panel will not make orders. In such a case the specialist's certificate will remain operative. It does not appear that the Registrar has power to prevent other aspects of the appeal being pursued, if satisfied that 'at least one of the grounds for appeal specified in subsection (3) has been made out': s 327(4). Further, because there is a power to adduce 'fresh evidence' which could not reasonably have been obtained before the assessment, and because the person may seek a further examination by a member of the Panel, the appeal conducted by the Appeal Panel is in the nature of a rehearing, and is described as being 'by way of review': s 328(2).

1. The powers of the Appeal Panel are to 'confirm' the certificate of assessment or revoke the certificate and issue a new certificate: s 328(5). Although the provisions of s 326 (dealing with the status of medical assessments) are expressly stated to apply to a new certificate, that is not said about a decision confirming an existing certificate. However, it does not follow that the confirmed certificate obtains its validity from the opinion of the original specialist, despite its review by an Appeal Panel. The authorities with respect to judicial proceedings support the conclusion that an order 'confirming' a certificate, may constitute the exclusive authority for the decision under review. A similar conclusion should be accepted by reference to the statutory scheme in respect of a decision of an Appeal Panel, being a body exercising judicial functions: Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at [104]-[109] and [117]; cf Sherlock v Lloyd [2010] VSCA 122 at [22] (Maxwell P, Ashley JA and Byrne AJA). It would follow that a challenge by way of judicial review to the decision of the specialist is incompetent where there has been an appeal to an Appeal Panel."
2. I would note the following remark in DJL v Central Authority,[105] where Kirby J said the following, which is very much consistent with other judicial pronouncements on the topic of finality, which is also relevant to this question:

"The law, for very good reason, places a high store on the finality of court judgments and orders. There would be little point in having courts to resolve disputes between parties according to law with settled remedies of judicial review and appeal, and within a hierarchical judicial system, if no ultimate finality could be reached. The judicial system would become discredited if 'final' orders were revealed as provisional or always subject to reconsideration and collateral challenge thus compounding costs, delays and the anxiety of submitting disputes to independent judicial determination."

1. This is the first circumstance that I can find of an appellant, after an unsuccessful appeal to a Presidential member, attempting to agitate a second appeal against the non-presidential member's first instance decision in either this Commission or its predecessor bodies. I enquired of the parties whether they had found any decision dealing with this circumstance and the answer was in the negative. There is however a single decision, Vitaz, dealing with a medical appeal panel in the former Workers Compensation Commission which is instructive in terms of the approach to this question.
2. In my opinion a Presidential member hearing an appeal from a non-presidential member is, in effect, an intermediate appellate body. I have set out above a description of the statutory scheme which defines members' decision making in the Commission. The various limitations in the rights of appeal discussed by Basten JA in Vitaz at [16] did not serve to detract from the authority of the appeal panel's decision in terms of his Honour's considerations. The "limitations" observed by Basten JA do not exist in the case presented by this matter. If anything, given the statutory construct, application of the Wishart principle is on stronger ground in the circumstance of a non-presidential member's decision ('final and binding') and an appeal to a Presidential member under s 352(5) of the 1998 Act.
3. No issue has been taken about the nature of the powers a Presidential member has on appeal. It is the power of a higher authority, namely a Presidential member, to confirm, revoke or to make a new decision.[106] The statutory power to confirm the earlier decision is important in terms of the application of the principles arising from Wishart and the cases which followed it. If one considers these cases, Khammis in particular, the attention of the superior courts was concerned in appropriately characterising the statutory scheme and nature of the power exercised by the intermediate appellate body. In this case, that question has a very simple answer, the power granted by the statute was relevantly a power to confirm the earlier decision. This is a powerful factor militating against the appellant's position. Senior counsel for the appellant quite properly acknowledged the force of this proposition.[107]
4. The appellant has pointed out the tension between the application of the Wishart principles and beneficial provisions such as s 43 of the 2020 Act.[108] This is to support a submission that the Wishart approach, as discussed in Khamiss, is highly technical and was hardly consistent with the terms of s 43 of the 2020 Act. Ward P dealt with a similar submission in Miller, which I have referred to above, with respect to the application of the Anshun principle to workers compensation matters. In my view, the same considerations apply to the Wishart principles as her Honour applied to Anshun. Wishart is, as was said in Miller at [122]-[123], neither a formality nor a technicality but rather it is a fundamental principle of law dealing with the proper administration of justice.
5. As a result of these considerations of the statutory scheme, I find that my decision of 4 July 2025 is the operative decision. Had I revoked the Member's decision, that appeal decision would have, subject to appeal, governed the result of the dispute. The converse must also be true. Once I confirmed the decision pursuant to the express power in s 352(6A) of the 1998 Act, my decision was that of the competent and higher authority which then covered the field in the dispute.[109]
6. For this reason, the appellant's second appeal against the Member's decision cannot be permitted to proceed. The Member's decision is no longer the operative decision, thus meaning the second appeal cannot be sustained. It follows that the second appeal must be dismissed.
7. I would record for the sake of completeness that the second appeal has been lodged out of time, thus requiring a grant of leave to proceed.[110] Given that I have found the second appeal cannot be sustained for the reasons expressed, the second appeal is without merit. In those circumstances there are no exceptional circumstances established nor would a failure to grant leave work a demonstrable and substantial injustice to the appellant as required by r 133A.
8. I decline to grant the appellant leave to pursue the second appeal out of time.

1. The appellant's application that the Presidential decision of 4 July 2025 be reconsidered pursuant to s 57 of the Personal Injury Commission Act 2020 is declined.
2. The appellant's application for leave to file a second appeal out of time against the non-presidential member's decision of 12 September 2024 is declined. The second appeal is dismissed.

[1] [2025] NSWCA 157 (Culhana).

[2] Section 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act); Procedural Direction WC3, [13]-[14].

[3] Second appeal submissions 9 October 2025, [6].

[4] [1941] HCA 8; 64 CLR 470 (Wishart).

[5] Application to Resolve a Dispute (ARD), p 6.

[10] Hayes v CSR Ltd [2024] NSWPIC 507 (Hayes No 1/the reasons).

[11] Annexure 'B' to the appellant's 17 October 2025 submission.

[23] [2014] NSWWCCPD 55.

[27] [2021] NSWWCCPD 6 (Ceccato).

[28] [1952] SR (NSW) 105 (Hilliger), 108.

[29] [1962] SR (NSW) 244 (Hardaker).

[31] [1975] 1 NSWLR 412 (Schipp).

[33] [1993] NSWCC 36; 9 NSWCCR 642 (Maksoudian).

[34] [1989] NSWCC 4; 5 NSWCCR 192.

[38] Appellant's submissions on reconsideration 21 August 2025, [17].

[39] Appellant's submissions on reconsideration 21 August 2025, [20].

[40] Appellant's submissions on reconsideration 21 August 2025, [25].

[41] Appellant's submissions on reconsideration 21 August 2025, [29].

[42] Respondent's submissions on reconsideration 29 September 2025, [2].

[43] Respondent's submissions on reconsideration 29 September 2025, [4].

[44] Respondent's submissions on reconsideration 29 September 2025, [5]-[6].

[45] Transcript (T) of proceedings 10 November 2025, T 45.4-10.

[54] [1968] HCA 7; 117 CLR 498 (Piening).

[56] House v The King [1936] HCA 40; 55 CLR 499.

[57] (1977) 2 NSWLR 990, 995D, per Street CJ.

[65] I accept what was put by the appellant at T 13.15-21.

[67] [2014] NSWCA 105 (Warkworth).

[69] [2005] NSWCA 96 (Langford)

[73] Respondent's submissions 23 October 2025, [5]-[6].

[74] [2025] NSWCA 193 (Khamiss).

[87] Enabling legislation is defined at s 5 of the 2020 Act as the 1998 Act.

[98] South Western Area Health Service v Edmonds [2007] NSWCA 16, [94], per McColl JA.

[99] [2022] NSWCA 190 (Miller).

[101] Now found in s 43(1) of the 2020 Act.

[104] [2011] NSWCA 254 (Vitaz).

[105] [2000] HCA 17; 201 CLR 226, [90].

[106] Section 352(6A) of the 1998 Act.

[109] See Wishart, 478, per Starke J.

[110] Section 352(4) of the 1998 Act and r 133A(4) and (5) of the Personal Injury Commission Rules 2021.