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Parties: Donhad Pty Ltd (Plaintiff)
Alan John Asbury (First Defendant, submitting appearance)
Appeal Panel constituted under s 328 of the
Workplace Injury Management and Workers
Compensation Act 1998 (Second Defendant, submitting appearance)
President of Personal Injury Commission of New South Wales (Third Defendant, submitting appearance)

Representation: Counsel:
B Jones (Plaintiff)
Solicitors:
Hall & Wilcox (Plaintiff)
Santone Lawyers (First Defendant)
Crown Solicitor's Office (Second and Third Defendant)

File Number(s): 2025/00231379

Publication restriction: Nil

EX TEMPORE JUDGMENT

1. These proceedings were commenced by the filing of a summons on 17 June 2025. The plaintiff seeks judicial review of a decision dated 19 May 2025 by an Appeal Panel exercising jurisdiction under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (1998 Act). The Appeal Panel issued two certificates which assessed the first defendant’s whole person impairment (WPI) resulting from injuries sustained in October and December 2003. The Appeal Panel certified that the October 2003 injuries gave rise to a 5% WPI and the December 2003 injuries gave rise to a 21% WPI. No deduction was made in respect of those injuries.

2. The plaintiff seeks an order in the nature of certiorari or, alternatively, a declaration setting aside the decision; an order in the nature of prohibition or, alternatively, an injunction preventing the defendants from acting on or taking further steps in reliance on the decision; an order in the nature of mandamus that the matter be remitted to the third defendant, which is the Personal Injury Commission, to be determined according to law; and costs.

3. On 24 June 2025, the second defendant filed a submitting appearance, save as to costs.

4. On 24 June 2025, the third defendant also filed a submitting appearance, save as to costs.

5. On or around 29 July 2025, the first defendant provided a response to the summons. The response included claims that the first defendant did not accept that there was any jurisdictional error or error of law on the face of the record. A dispute was raised with the substance of grounds 1 to 5 in the summons and it was contended that if any errors were established they would not have made a material difference to the decision.

6. On 21 August 2025, the plaintiff filed written submissions in support of the summons. The first defendant failed to provide written submissions as required by the Registrar’s orders dated 27 June 2025.

7. Shortly after this failure was raised by my Chambers, the first defendant’s solicitors advised by an email dated 3 September 2025 that they had just received instructions to file a submitting appearance. Later that same day, the first defendant filed a document curiously titled “Amended Submitting Appearance”, which stated that the first defendant appeared and submitted to the making of all orders sought, and the giving or entry of judgment of those orders, save as to costs.

8. There is, of course, a distinction between consenting to an order and merely submitting to the making of all orders sought (see Trust Co of Australia Ltd v Perpetual Trustees (WA) Ltd (No 2) (1995) 36 NSWLR 654 at 659–661 per Young J).

9. The matter was listed for a substantive hearing before me today, Friday, 5 September 2025, that being only one full business day after the first defendant’s change of position. In those circumstances, on Wednesday, 3 September 2025, my Chambers sent the following email to the parties:

Dear Parties,

The Court notes that the first defendant has belatedly filed an amended submitting appearance, only one business day before the matter is listed for hearing. Consequently, there is no active contradictor. In these circumstances, the Court is reluctant to proceed with a substantive hearing on Friday.

Instead, subject to hearing the plaintiff’s position, the Court is presently minded to invite the Attorney General to intervene, and if this invitation is declined, to approach the Bar Association to see whether any counsel is prepared to act as amicus curiae. Consequently, the substantive matter would need to be adjourned to a future hearing date.

Yours faithfully,

10. The plaintiff then sought and was granted leave to provide brief written submissions on the significance of there no longer being an active contradictor. Those submissions were provided yesterday, on 4 September 2025. In brief, after referring to various authorities, including the decision of Adamson JA in Insurance Australia Ltd t/as NRMA Insurance v Cahill [2025] NSWSC 828 and that of Lonergan J in AAI Limited t/as AAMI v Pearce [2024] NSWSC 357, the plaintiff urged the Court to determine the summons without any contradictor because that is the course which had been taken in other cases, including those referred to immediately above.

11. Counsel for the plaintiff, Mr Jones, made additional submissions in opposing the hearing being deferred when the matter was called today. In brief, the Court was urged to proceed without any contradictor to determine the summons. Mr Jones fairly and appropriately if I may say, submitted that “there are complexities about the operation of s 323” and he also very correctly drew the Court’s attention to the fact that there was no other decision that he was aware of which has discussed the effect of the decision in Secretary, Department of Communities and Justice v Virtue [2024] NSWSC 1380, which the plaintiff also relies upon.

12. For the following reasons, I consider that the hearing of the summons should be adjourned so that appropriate steps can be taken to have an active contradictor assist the Court. First, the issues raised by the summons are far from straightforward. Indeed, the plaintiff raises five grounds of judicial review, namely:

13. failure to make a deduction under s 323 of the 1998 Act in respect of WPI of the first defendant’s right knee;

14. failure to provide reasons as to why no deduction was made under s 323 of the 1998 Act;

15. failure to provide reasons or respond to a substantial and clearly articulated argument regarding the relevance of the decision in Virtue;

16. error in assessing WPI of the right knee in respect of the October 2003 injuries; and

17. failure to provide proper reasons concerning apportionment of the 20% WPI in respect of the October 2003 and December 2003 injuries to the first defendant’s right knee.

18. Some of these grounds raise potentially difficult and complex questions in relation to which the Court would be assisted by an active contradictor. The complexity of the case is evidently reflected by the fact that the plaintiff has filed a Court Book totalling almost 900 pages and its written submissions are 16 pages in length. Furthermore, the plaintiff’s list of authorities includes copies of twenty authorities which are said to be relevant to the case, as well as other additional materials, resulting in a folder of materials slightly less than 600 pages.

19. The matter appears to be far more complex than the relatively limited grounds of review raised in cases such as Cahill and Pearce, where the adequacy of reasons was the principal issue. The complexity, which is acknowledged by counsel, is also reflected in the judgment of Wright J in Southwell v Qantas Airways Limited [2024] NSWSC 497, which is relied upon by the plaintiff. It contains a detailed analysis of various aspects of the construction of s 323 and refers to multiple cases address those matters.

20. Secondly, as noted above, the plaintiff seeks declaratory relief in the alternative to relief in the nature of certiorari. The need for there to be a proper contradictor who has a true interest in opposing declaratory relief has been recognised in cases such as Russian Commercial & Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448 per Lord Dunedin and Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 438 per Gibbs J; [1972] HCA 61. It is unnecessary to determine whether this is an essential requirement before a declaration can be made, or is merely a matter of discretion (as to which see Zetting v Müller [2017] NSWSC 659 at [13] per Parker J and Trust Co of Australia Ltd at 660 per Young J). Assuming that the issue involves discretion, the complexity of the issues raised in the present proceeding is a substantial relevant consideration.

21. Thirdly, it is evident from the summons and the plaintiff’s written submissions that the case raises important issues which potentially have a wider application than the circumstances of this particular proceeding, with particular regard to the proper construction and application of s 323 of the 1998 Act.

22. For all these reasons, I will order that the hearing of the summons be adjourned to a date to be fixed and that appropriate inquiries be made of the Attorney General and, if necessary, the Bar Association, with a view to there being an active contradictor. Costs are reserved.

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