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The underlying Commission determination was made by Member Sweeney on 15 August 2023. The Member found that Jo-Anne Howard, the employee, lacked current working capacity. The employer, E B Murray Family Investments Pty Ltd t/as Bede Murray Racing Stables, appealed within the Commission. Deputy President Snell dismissed that appeal on 31 October 2024. The Court of Appeal describes that decision and the original determination at [1].

The employer then appealed to the NSW Court of Appeal under s 353(1), which limits that further appeal to a “point of law” [6]. The original notice of appeal included grounds alleging failures to give adequate weight to various matters. The Court said those grounds did not themselves articulate an error of law. It noted that the original ground alleging insufficient reasons did raise a point of law, citing Fisher v Nonconformist Pty Ltd at [53]-[55] [6]. After the Court delivered State of New South Wales v Culhana on 17 July 2025, the employer amended its notice to allege that the Deputy President had applied an erroneous standard of review [4], [7].

The parties jointly proposed that the appeal be allowed, the decision set aside and the matter remitted to a different Presidential member, with no order as to costs [8]. The Court did not simply make the proposed orders automatically. It first said that, because the proposed orders would set aside a statutory decision, it needed to satisfy itself that they were appropriate [9]. It then accepted that the Deputy President’s approach was an error of law and that the error was material [10]. The final orders allowed the appeal and remitted the matter to the Commission for determination in accordance with law by a Presidential member other than Deputy President Snell [12].

The Court did not determine the underlying work-capacity question. The outcome was procedural and concerned the legal standard governing the Commission appeal.

Why the court decided this way

Section 352(5) provides that a Commission appeal is limited to determining whether the decision appealed from was affected by error of fact, law or discretion, and correcting any such error. It also says that the appeal “is not a review or new hearing” [2]. The Deputy President had relied on earlier Court of Appeal authority, including Northern NSW Local Health Network v Heggie, Workers Compensation Nominal Insurer v Hill and Iqbal v Hotel Operation Solutions Pty Ltd [3].

As the Court summarised that earlier line of authority, intervention on an alleged factual error depended on establishing an error in the original fact-finding exercise, rather than merely preferring a different view of the evidence. On that approach, it was not inappropriate to ask whether the factual findings were “open” to the Member [3]. The Deputy President applied that approach, including by referring to findings as open at several points in the reasons [3].

The intervening decision in Culhana changed the governing approach. The Court of Appeal in that case said that future s 352 appeals should apply Warren v Coombes and Fox v Percy, with appropriate deference where the original Member had an evidentiary advantage. It also explained that it was not enough to dismiss an appeal simply because an inference was open to the Member. A Presidential member should consider whether, after allowing for those advantages, a different factual conclusion should be reached. Those statements appear in the extract from Culhana reproduced at [4].

In the present case, the Court applied Culhana to the Deputy President’s approach. It held that, although the Deputy President had been bound at the time by the earlier authority he applied, that approach was legally erroneous in light of Culhana [10]. That qualification matters: the Court was identifying an error in the legal standard, not criticising the Deputy President for failing to disregard binding authority as it stood when he decided the Commission appeal.

The Court also had to be satisfied that the error was material. Culhana had stated that an incorrect approach does not, by itself, mean that a further appeal under s 353 should succeed. The appellant must establish material error of law, including that applying the correct approach would make a difference [4]. Here, the parties’ proposed orders indicated that they agreed the error was material. The Court accepted that position, also observing that the Deputy President’s reasons repeatedly referred to findings being “open to” the Member [10]. The Court did not independently set out a detailed alternative factual analysis of the work-capacity issue.

Before and after state of the law

Before Culhana, the Deputy President considered himself bound by Heggie, Hill and Iqbal. As the present Court summarised those decisions, the approach focused on whether the original Member had made an error in the fact-finding process. It permitted consideration of whether a finding was “open” to the Member, rather than requiring the appellate decision-maker to decide whether, with appropriate deference, a different conclusion should be reached [3].

Culhana, delivered shortly before the hearing in this case, rejected that approach for future s 352 appeals. The Court in Culhana directed that Warren v Coombes and Fox v Percy should govern, while recognising the need to defer where the original Member had an advantage in assessing evidence. The extract also refers to Lee v Lee as an example of an evidentiary advantage [4]. The key change was not that the Commission appeal became a new hearing. Section 352(5)’s text still says it is not a review or new hearing [2]. Rather, Culhana changed how the appellate decision-maker is to assess alleged factual error within that statutory appeal.

The present judgment applied that change to Deputy President Snell’s decision. It did not say that every decision made using the former approach must be set aside. It repeated Culhana’s point that an appeal under s 353 requires material error, and accepted materiality on the circumstances and common position before it [4], [10].

The judgment does not provide a comprehensive account of the earlier cases’ reasoning, nor does it separately explain how each authority was affected. It records that the Deputy President relied on them and that Culhana declined to follow the earlier line [3]-[4]. It is therefore safest to describe the legal transition at the level the judgment does: Culhana established the applicable approach, and the Deputy President’s application of the former approach was an error of law in this case.

Key passages with plain-English translation

At [2], the judgment sets out s 352(5): an appeal is limited to whether the decision was affected by error and to correcting such error; it “is not a review or new hearing.” In plain English, the Commission appeal remains an appeal focused on error, rather than a fresh first-instance hearing.

At [3], the Court describes the approach the Deputy President followed. Under the earlier authorities he relied on, the relevant question included whether the original factual findings were “open” to the Member. In ordinary terms, that approach asked whether the original decision-maker could reasonably have reached the finding, rather than simply asking which factual conclusion the appeal decision-maker would reach after allowing for the original Member’s advantages.

At [4], the judgment quotes Culhana’s direction that future s 352 appeals should apply Warren v Coombes and Fox v Percy, while giving appropriate deference where the original Member had an advantage. The quoted passage says it is not sufficient to dismiss an appeal because an inference was “open”. Put plainly, deference remains relevant, but it does not eliminate the need for the appellate decision-maker to undertake the required assessment of the factual issue.

At [4], the quoted passage from Culhana also identifies the limit on further appeals: an incorrect approach at Commission level does not automatically establish a successful s 353 appeal. The appellant must establish a material error of law, including that use of the correct approach would make a difference. The present Court used that framework when considering the parties’ agreement about materiality.

At [10], the Court states its conclusion directly: the Deputy President “erred in point of law” by adopting the approach he used under s 352. It then accepts the parties’ joint position as to materiality. This paragraph contains the central holding and explains the legal basis for allowing the appeal.

At [12], the operative orders show the practical result. The Deputy President’s decision was set aside and the matter was remitted for determination in accordance with law by a different Presidential member. The Court did not itself substitute a finding on current working capacity.

What fact patterns trigger this precedent

The decision is relevant where a Personal Injury Commission Presidential member decides an appeal under s 352 and the challenged decision involves factual findings. It is particularly relevant if the reasons for dismissing the appeal rely on the proposition that a finding was “open” to the original Member, without applying the appellate assessment described in Culhana [3]-[4], [10].

It also matters where a further appeal is brought to the Court of Appeal under s 353(1). That provision requires a point of law [6]. The judgment distinguishes between complaints that a decision-maker failed to give particular evidence adequate weight and allegations that the decision-maker applied an erroneous legal standard. The former did not, in the Court’s view, articulate a point of law in grounds 1 to 5 of the original notice; the amended standard-of-review ground did [6]-[7].

The precedent does not establish that every use of the word “open” is necessarily an error, nor does it decide the correct result in an individual work-capacity dispute. Its stated concern is the approach used to determine the appeal. The judgment also makes materiality important: an error in approach alone is not automatically enough for a further appeal under s 353 [4]. In this case, materiality was accepted in light of the parties’ position and the repeated references to findings being open [10].

How later courts have treated it

The judgment itself does not discuss any decisions that came after it or report how later courts treated it. It was decided on 30 July 2025, shortly after Culhana on 17 July 2025. Accordingly, the supplied text supports explaining this judgment’s application of Culhana, but not making claims about subsequent judicial treatment.

Within this judgment, Culhana is the decisive authority. The Court considered its effect, assessed the Deputy President’s approach against it and concluded that the use of the former approach was an error of law [4], [10]. The earlier authorities Heggie, Hill and Iqbal are described as authorities that had bound the Deputy President when he decided the Commission appeal [3]. The judgment does not itself give a full account of their subsequent status beyond reporting that Culhana declined to follow the earlier line [4].

The Court also refers to Warren v Coombes and Fox v Percy through the Culhana passage it reproduces, and to Lee v Lee as part of the explanation of evidentiary advantage [4]. Fisher v Nonconformist Pty Ltd is cited for the proposition that a complaint of insufficient reasons articulates a point of law [6]. The supplied judgment gives no later treatment of these cases.

Still-open questions

The judgment resolves the legal error and the appropriate procedural disposition in this appeal, but leaves the underlying work-capacity dispute for the Commission. It does not decide whether Howard had current working capacity, nor does it state what conclusion a Presidential member should reach after applying Culhana [1], [12].

The judgment also does not independently explain in detail how the correct Warren and Fox approach should be applied to each item of evidence in this particular dispute. It accepts materiality based on the parties’ joint position and the Decision’s repeated references to findings being open [10]. The rehearing on remittal is where the factual appeal remains to be determined.

For future cases, the judgment’s treatment of materiality leaves the general requirement clear but does not provide a detailed worked example of when applying the Culhana approach would make a difference. The quoted passage from Culhana says that a difference must be shown [4], while this Court accepted the parties’ agreement in this case [10]. The supplied text does not specify what evidence or factual findings would be sufficient to establish materiality in other circumstances.

Finally, the judgment does not provide a detailed exposition of the boundaries between an appeal that is not a “review or new hearing” under s 352(5) and the active factual assessment required by Culhana. It makes clear that the statutory limitation remains, while rejecting a test that dismisses an appeal solely because the finding was open [2]-[4]. The precise application of that balance will depend on the reasons and issues in later Commission appeals.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.