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[2026] NSWCA 198
respondent. Appeal dismissed. The appellant was ordered to pay the respondent's costs up to 10 August 2026 on the indemnity basis and the respondent's remaining appeal costs on the ordinary basis: [53].
The employer's appeal could not succeed merely by arguing again that the PIC Member gave too little weight to surveillance and other evidence. The Court of Appeal's role under s 353 was to examine whether the ADP made a legal error in dealing with the appeal grounds she had been given. The employer's amended grounds did not identify such an error. One ground attacked the ultimate work-capacity finding, but that issue had not been put to the ADP as a ground of appeal. The appeal was dismissed, with the specified costs orders.
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2,272 words · generated 08/10/2026
This judgment concerns the limits of an appeal to the NSW Court of Appeal under s 353(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). The employer, EB Murray Family Investments Pty Ltd trading as Bede Murray Racing Stables, challenged an Acting Deputy President's decision confirming a PIC Member's finding that Jo-Anne Howard had no current work capacity and was entitled to weekly compensation from 21 July 2022: [3]-[7].
4 cited instruments linked from this judgment.
The underlying claim arose from a work incident on 16 January 2009. Ms Howard was mowing a steep embankment with a whipper-snipper when she slipped and fell backwards onto its motor, which struck her between the shoulder blades and at the back of her neck: [12]. After investigations, she underwent right shoulder tendon repair surgery in 2009 and cervical surgery in 2013, followed by further treatment and surgery over subsequent years: [14]-[20].
In 2022, the insurer issued a notice discontinuing weekly payments. It relied on witness statements disputing the accident and on surveillance footage which it said showed activity inconsistent with the claimed injury: [21]. A PIC Member had previously determined that the employer was estopped from denying the injury, and there was no appeal from that determination: [22]. At a later hearing, the employer disputed incapacity, relying on surveillance, lay witness evidence and medical opinions: [23]-[27].
The Member found that Ms Howard had no current earning capacity from 21 July 2022: [28]. The Member considered the employer's medical evidence outdated and unsatisfactory, and assessed it against the treatment history, other medical evidence and surveillance: [29]-[32]. The ADP considered six grounds challenging the Member's treatment of evidence and the adequacy of the Member's reasons, and dismissed the appeal: [35]-[40].
The employer then appealed to the Court of Appeal. Its amended grounds continued to challenge the treatment of surveillance and medical evidence, and also asserted that the finding of no current work capacity was unreasonable: [41]. The Court held that those grounds did not identify a legal error by the ADP of the kind required by s 353. It dismissed the appeal and ordered indemnity costs up to 10 August 2026, with ordinary costs thereafter: [48]-[53].
The decisive point was the statutory character of the appeal. Section 353(1) permits an appeal where a party is aggrieved by a decision of the Commission constituted by a presidential member “in point of law”: [7]. Ball JA explained that this restriction prevents the Court of Appeal from simply reviewing factual findings made by a non-presidential member, or correcting factual errors by a presidential member where no error in point of law is involved: [44].
The judgment then identified a related but important distinction: the appeal is from the presidential member's decision, not directly from the non-presidential member's decision. Relying on Fisher v Nonconformist Pty Ltd, Ball JA said that the complaint generally must relate to the presidential member's decision. In some cases, a complaint may also concern an error of law by the non-presidential member, for example if the presidential member wrongly rejects an allegation of such an error. But the focus of the appeal remains the presidential member's decision: [45]-[46].
That meant the employer had to show how the ADP erred in point of law in addressing the six grounds put to her. The Court described the ADP's task as determining whether the Member had made the errors alleged in those grounds. The Court of Appeal's task was then to assess whether the ADP made a legal error in dealing with them: [47].
The employer's grounds 1A, 1B, 2A and 2B did not meet that test. They argued, in substance, that the ADP had given too much weight to medication history, complaints to doctors and other medical material, and too little weight to surveillance or Dr Smith's opinion. The Court characterised them as attempts to reagitate the earlier complaints about the Member's assessment of evidence: [48]. The ADP had summarised and assessed the Member's treatment of the surveillance evidence, including its age and its relationship to the medical and other evidence. She had also addressed the other evidence grounds: [49]-[50]. The amended grounds did not identify a legal error in that process.
Ground 4A was different in form because it asserted that the ADP's decision that Ms Howard had no current work capacity was unreasonable in the Wednesbury sense: [51]. But the ADP had not been asked to decide whether the Member's ultimate conclusion on work capacity was wrong. The grounds before her concerned whether the Member had given inadequate weight to particular evidence. The Court said the ADP could not be in error for failing to decide an issue that had not been raised: [51]. The Court therefore dismissed this ground as well.
The judgment does not decide whether the surveillance or medical evidence, considered afresh, proved or disproved capacity for work. Its reasoning is about the proper scope and focus of the particular statutory appeal.
The judgment's account of the procedural history describes a change in the approach to appeals from non-presidential members under s 352 of the 1998 Act. In the first appeal from the Member, Deputy President Snell applied Northern NSW Local Health Network v Heggie, Workers Compensation Nominal Insurer v Hill and Iqbal v Hotel Operations Solutions. As described in this judgment, those authorities required more than a preference for another view of the evidence: intervention depended on identifying an error in the fact-finding process: [33].
Before the appeal from Deputy President Snell was heard, this Court decided State of New South Wales v Culhana. The present judgment says Culhana declined to follow earlier authorities including Heggie, Hill and Iqbal, and held that future appeals under s 352 should apply Warren v Coombes and Fox v Percy. As summarised here, that approach means a presidential member should form their own conclusion on a factual question after making appropriate allowance for the advantages enjoyed by the Member, and should not shrink from giving effect to a different conclusion: [34].
That change meant the earlier appeal from Deputy President Snell had to be allowed and the matter remitted for determination in accordance with law by a different presidential member: [34]. The remitted matter came before the ADP.
The present judgment concerns a different statutory route: an appeal from a presidential member to the Court of Appeal under s 353. It does not re-examine or elaborate the full approach to s 352 appeals. Instead, it applies the s 353 limitation to an appeal challenging what the ADP did on remittal. Fisher is central to the explanation that an appellant must identify a legal error by the presidential member and that the appeal's focus remains that member's decision: [45]-[46].
Thus, the practical distinction apparent from this judgment is between the presidential member's review under s 352 and the Court of Appeal's later statutory review under s 353. The former, in the circumstances described at [34], required a fresh evaluative approach to factual questions. The latter required an identified error in point of law by the presidential member. The judgment does not say that s 353 creates a further general factual rehearing.
At [44], the Court states that the point-of-law limit prevents it from reviewing factual findings made by the non-presidential member, or correcting factual errors by a presidential member when there is no legal error. In plain English, disagreement about how evidence was weighed is not, by itself, enough to invoke this appeal route.
At [45], the Court says the complaint generally must relate to the decision being appealed, meaning the presidential member's decision. The judgment recognises an exception in the sense that a presidential member may make a legal error by wrongly rejecting an allegation that the non-presidential member made a legal error. Even then, the Court's focus remains on the presidential member's decision.
At [46], the judgment adopts Fisher's explanation that the point of law need not always have been raised below, such as where a pure issue of statutory interpretation is raised. But it also notes that, particularly for issues that are not pure questions of law, a presidential member will often not have erred if a point that could have been raised below was not raised. The quoted passage further says an error must be material to obtain relief.
At [47], Ball JA sets out the sequence of review. The ADP had to assess the six grounds before her. The Court of Appeal then had to ask whether the ADP made a legal error in addressing those grounds. This passage is the judgment's clearest explanation of the appellate task.
At [48]-[50], the Court applies that approach. The employer's amended grounds reworked complaints about evidentiary weight but did not point to an error in the ADP's handling of those complaints. The Court illustrates the point by discussing the surveillance ground: the ADP had considered the Member's reasoning, including the age of the footage and how it sat with the medical and other evidence: [49]-[50].
At [51], the Court addresses the assertion that the no-current-work-capacity finding was unreasonable. It explains that this was not a ground before the ADP. The practical translation is that a reviewing decision-maker is not legally at fault simply because they did not answer an issue the appellant did not put to them.
The judgment is most relevant where a party appeals to the NSW Court of Appeal under s 353(1) after a presidential member has determined an appeal within the PIC. The appellant must identify a point-of-law error in the presidential member's decision, rather than merely ask the Court to reconsider disputed facts or the weight assigned to evidence: [44]-[47].
A common fact pattern within the judgment is one where the original appeal alleged that a PIC Member gave too little weight to particular evidence, such as surveillance, an expert opinion, lay witness statements or the absence of early complaints. If the presidential member considered those grounds and explained why they did not establish error, an appeal to the Court of Appeal that simply repeats the arguments about evidentiary weight may not identify the necessary legal error: [35]-[38], [48]-[50].
The judgment also addresses a related situation: an appellant asserts that the final factual conclusion was unreasonable, but that issue was not put to the presidential member as a ground of appeal. The Court says the presidential member cannot be faulted for not determining an issue that was not raised: [51]. The judgment does not establish that every unraised point is barred in all circumstances. It records Fisher's qualification that a pure issue of law may sometimes be raised for the first time, while noting that the presidential member may not have erred where a non-pure issue could have been raised below but was not: [46].
The decision does not turn on the particular medical merits of Ms Howard's capacity. The facts explain the evidentiary disputes, but the holding concerns statutory appeal scope and the need to identify a legal error by the ADP.
The provided judgment is dated 17 September 2026 and does not describe any later judicial treatment of its own decision. Later courts' treatment therefore cannot be determined from the supplied source.
The judgment does explain how it treats earlier authorities. It applies Fisher for the proposition that an appeal under s 353 must focus on the presidential member's decision and requires an identified point-of-law error by that member: [45]-[46]. It cites Cruceanu in support of the statutory restriction on reviewing factual findings or factual errors absent an error in point of law: [44].
For the procedural history, it records that Culhana declined to follow Heggie, Hill and Iqbal for future s 352 appeals and adopted the Warren v Coombes and Fox v Percy approach: [33]-[34]. Those statements describe the earlier decisions' role in the history of Ms Howard's case. They do not establish how any later court has treated the present judgment.
The judgment leaves open how its principles will operate in future appeals where the alleged legal error is less closely connected to a factual dispute. It notes, through the passage from Fisher, that a point of law need not necessarily have been raised below, particularly where it is a pure legal issue, but it does not decide a specific first-raised legal question: [46].
It also does not define the boundary between an impermissible attempt to reargue factual weight and a properly formulated legal challenge to a presidential member's treatment of an appeal ground. Its examples involve complaints about surveillance, medical opinions and related evidence. The core requirement is stated, but future cases may need to identify when a challenge to evidentiary reasoning is properly characterised as an error in point of law: [46]-[50].
The judgment does not decide how a presidential member should address a distinct ground asserting that a Member's ultimate factual conclusion is unreasonable. It says that, had such a ground been raised before the ADP, she would have needed to consider whether the Member erred, forming her own opinion while giving due weight to the Member's advantages: [51]. The judgment does not go further because that ground was not before her.
Finally, the source does not establish any later appellate or judicial treatment of this decision. Any assessment of subsequent developments would require material beyond the judgment provided.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: EB Murray Family Investments Pty Ltd t/as Bede Murray Racing Stables v Howard [2026] NSWCA 198
Hearing dates: 28 August 2026
Date of orders: 17 September 2026
Decision date: 17 September 2026
Before: Leeming JA at [1]
Kirk JA at [2]
Ball JA at [3]
Decision: (1) Appeal dismissed;
(2) Order that the appellant pay the respondent’s costs up until 10 August 2026 on the indemnity basis and otherwise pay the respondent’s costs of the appeal on the ordinary basis.
Catchwords: WORKERS COMPENSATION – proceedings before Commission – appeal from presidential member – where appeal under s 353 of Workplace Injury Management and Workers Compensation Act 1998 (NSW) limited to error “in point of law” – where appellant seeks to reagitate grounds of appeal raised before presidential member – need to identify error in point of law on the part of the presidential member
Legislation Cited: Workers Compensation Act 1987 (NSW) ss 32A, 33, 36, 37, 38, 66
Workplace Injury Management and Workers Compensation Act 1998 (NSW) ss 78, 352, 353
Cases Cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Cruceanu v Vix Technology (Aust) Ltd [2020] NSWCA 203
EB Murray Family Investments Pty Ltd t/as Bede Murray Racing Stables v Howard [2024] NSWPICPD 70
EB Murray Family Investments Pty Ltd t/as Bede Murray Racing Stables v Howard [2025] NSWCA 169
EB Murray Family Investments Pty Ltd t/as Bede Murray Racing Stables v Howard [2026] NSWPICPD 3
Fisher v Nonconformist Pty Ltd (2024) 114 NSWLR 1; [2024] NSWCA 32
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Iqbal v Hotel Operations Solutions Pty Ltd [2022] NSWCA 138
Northern NSW Local Health Network v Heggie [2013] NSWCA 255
State of New South Wales v Culhana (2025) 117 NSWLR 448; [2025] NSWCA 157
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54
Category: Principal judgment
Parties: EB Murray Family Investments Pty Ltd t/as Bede Murray Racing Stables (Appellant)
Jo-Anne Howard (Respondent)
Representation: Counsel:
J Turnbull SC with D Talintyre (Appellant)
D Del Monte with D Kolarovski (Respondent)
Solicitors:
Bartier Perry (Appellant)
Turner Freeman Lawyers (Respondent)
File Number(s): 2026/88015
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
Section 353(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 1998 Act) confers on a party a right of appeal to this Court from a decision of the Personal Injury Commission (PIC) constituted by a presidential member where a party is “aggrieved by a decision of the presidential member in point of law”.
The appellant, E B Murray Family Investments Pty Ltd t/as Bede Murray Racing Stables (the employer), appealed to this Court under s 353(1) against a decision of an Acting Deputy President (the ADP) of the PIC, who dismissed an appeal from a determination by a Member of the PIC that the respondent, Jo‑Anne Howard (the employee), lacked current work capacity. The matter came before the ADP on remittal from this Court in circumstances explained in EB Murray Family Investments Pty Ltd t/as Bede Murray Racing Stables v Howard [2025] NSWCA 169.
Before the ADP, the employer raised six grounds of appeal. Four raised issues concerning the weight the Member placed on specific types of evidence relied on by the employer. The fifth related to the employee’s presentation at the hearing before the Member. The sixth was a complaint about the adequacy of the Member’s reasons.
On appeal to this Court, the employer raised five grounds of appeal which sought in a slightly amended form to reagitate grounds 1 to 4 of the grounds of appeal relied on before the ADP. None of the grounds raised an issue concerning the way the ADP dealt with grounds 5 and 6 before her.
The Court (Ball JA, Leeming and Kirk JJA agreeing) held, dismissing the appeal:
Fisher v Nonconformist Pty Ltd (2024) 114 NSWLR 1; [2024] NSWCA 32, applied.
Cruceanu v Vix Technology (Aust) Ltd [2020] NSWCA 203, cited.
LEEMING JA: I agree with Ball JA.
KIRK JA: I agree with Ball JA.
BALL JA: By an amended notice of appeal filed in Court on 28 August 2026, the appellant, EB Murray Family Investments Pty Ltd trading as Bede Murray Racing Stables (Bede Murray), appeals against a determination made on 5 February 2026 by Acting Deputy President Wood (the ADP). By that determination, the ADP confirmed a determination made on 15 August 2023 by Member Sweeney (the Member) relevantly concluding that the respondent, Ms Jo-Anne Howard, was entitled to be paid weekly compensation from 21 July 2022 under s 33 of the Workers Compensation Act 1987 (NSW) (the 1987 Act) on the basis that she had a total incapacity for work resulting from an injury that occurred on 16 January 2009: see EB Murray Family Investments Pty Ltd trading as Bede Murray Racing Stables v Howard [2026] NSWPICPD 3 (appeal determination or AD).
Under ss 36 to 38 of the 1987 Act, an injured worker “who has no current work capacity” is entitled to receive weekly payments for the periods stated and for the amounts calculated in accordance with those sections.
Under Sch 3 cl 9(2) of the 1987 Act:
An injured worker has no current work capacity if the worker has a present inability arising from the injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.
… employment in work for which the worker is currently suited —
(a) having regard to—
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the [Workplace Injury Management and Workers Compensation Act 1998 (NSW)], and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of—
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.
Appeal against decision of Commission constituted by presidential member
(1) If a party to any proceedings under the Workers Compensation Acts before the Commission constituted by a presidential member is aggrieved by a decision of the presidential member in point of law, the party may appeal to the Court of Appeal.
(2) The Court of Appeal may, on the hearing of any appeal under this section, remit the matter to the Commission constituted by a presidential member for determination by the Commission in accordance with any decision of the Court and may make such other order in relation to the appeal as the Court thinks fit.
(3) A decision of the Court of Appeal on an appeal under this section is binding on the Commission and on all the parties to the proceedings in respect of which the appeal was made.
…
Ms Howard was born in 1964. Prior to 2009, she spent most of her working life in the racing industry doing track and stable work and driving trucks, tractors and mowers.
Ms Howard suffered a significant injury to her lower back when she was thrown from a horse in July 1987. Following that injury, she underwent what the Member described as “a very extensive surgical procedure under Dr Robson, a neurosurgeon, at Canberra Hospital”.
Ms Howard commenced full-time work with Bede Murray as a labourer and trackwork and stable hand on 27 October 2008. On Christmas Eve 2008, she suffered an abdominal strain injury and developed an abdominal wall hernia after lifting a lawn mower onto the back of a Ute in connection with her work. Despite her injury, Ms Howard continued to work until she had surgery to repair her hernia on 1 April 2009.
On 16 January 2009, Ms Howard was mowing a steep embankment with a whipper-snipper as part of her duties when she slipped and fell backwards onto the motor of the whipper-snipper. The motor hit her between her shoulder blades and into the back of her neck.
The pain in Ms Howard’s shoulders got worse that evening and she saw her GP the following day, who thought at the time she had strained some muscles.
Ms Howard also continued to have problems with her left shoulder. Further investigations including an MRI revealed significant pathology at her C5/6 and C6/7 area of her spine. On 10 July 2013, she underwent anterior cervical discectomy and fusion at C5/6 and C6/7 which was performed by Dr David McDowell.
From the time of her accident in January 2009, Ms Howard was prescribed various types of painkillers, including opioids.
According to Ms Howard, following her surgery in July 2013, her symptoms improved but by the end of 2014 she began to experience more pain and numbness in her right arm and to a lesser degree in her left arm as well. She consulted Dr Peter Mews and underwent two C7 nerve root injections which improved her symptoms markedly for a time. However, in December 2015, Dr Mews recommended that she undergo a posterior cervical foraminotomy at the C6/7 level. That surgery was performed on 7 November 2016.
Bede Murray did not accept liability for the surgery on 7 November 2016. On 9 May 2017, Ms Howard lodged an application with the WCC to recover the cost of that surgery. On 22 August 2017, the WCC ordered Bede Murray to pay Ms Howard’s expenses in relation to that treatment.
On 26 June 2018, Ms Howard underwent a right shoulder open cuff revision repair after she tripped at her home in April 2018. She also underwent a left wrist fusion on 11 November 2019 after having injured her wrist during the same fall.
On 13 September 2022, Ms Howard lodged an application to resolve a dispute with the PIC seeking a continuation of her weekly compensation payments. On 2 December 2022, after an in-person hearing, the Member issued a Certificate of Determination in which he found that Bede Murray was estopped from denying that Ms Howard had suffered an injury to her neck and both shoulders because of the incident on 16 January 2009. There was no appeal from that decision.
As a result, there was a further in-person hearing before the Member on 12 April 2023. At that hearing (and in subsequent written submissions) Bede Murray submitted that Ms Howard was not incapacitated as a consequence of the injuries she suffered. It continued to rely on the lay witness statements as being relevant to Ms Howard’s credit. It also relied on the surveillance reports and videos. In addition, it relied on expert medical reports obtained from Dr Anthony Smith, an orthopaedic surgeon, and Dr Peter Bentivoglio, a neurosurgeon.
Dr Smith provided two reports. In the first, dated 19 August 2014, he expressed the opinion that “There is no impairment arising from [Ms Howard’s] work injury. The impairment arises from a pre-existing degenerative disease in the neck”. Dr Smith prepared a second report on 9 September 2014, after he had been provided with copies of the surveillance videos (it is unclear from the evidence which ones and plainly they did not include the ones obtained after 2014). In that report, Dr Smith said:
I have reviewed the surveillance videos and would consider that there is no likelihood of there being anything wrong with her and once again, as far as I can tell, she is fit to do any work suitable for women her age without any restrictions whatsoever.
I think she has been so fit for some time.
Why [Ms] Howard still has persistent symptoms of arm pain and symptoms in her hand is unclear. All her post-operative MRI scans and neurological examination are perfectly normal and do not reveal any evidence of a radiculopathy or myelopathy or any evidence of a brachial plexus injury. Why she still has the symptoms is unclear and probably not related to the injury on 16.1.2009 as she got a good result following the operation where she had a C5/6 and C6/7 anterior cervical discectomy and fusion for 14 months.
She has not worked in her chosen profession for 8 years and she runs a small property by herself, that seems to be the capacity of the work that she can do.
She is not to lift more than 10kg and avoid repetitive bending and twisting and putting anything heavy on her shoulders.
This ongoing incapacity is still present, I feel the best that she can hope for is to run her small property.
Unfortunately, I do not believe there will be any significant improvement in her prognosis. She will have persistent neck pain and all the symptoms in her arm. It is now seven months since her second operation; if after 5 more months there is no further improvement I do not anticipate there will be. Unfortunately, she is going to be left on significant pain medication and drug dependence will also become an issue.
- [Ms Howard] suffered injury to her neck and both shoulders arising out of and in the course of her employment on 16 January 2009.
2. As a result of these injuries [Ms Howard] has had no current earning capacity since 21 July 2022.
- While [Bede Murray] enthusiastically submitted that the Commission should find that any incapacity suffered by [Ms Howard] as a result of the proven injury to her neck and shoulders in 2009 had ceased, the medical evidence it relied on to establish that proposition is outdated and unsatisfactory. Dr Anthony Smith, an orthopaedic surgeon, saw [Ms Howard] on 19 August 2014, at the request of [Bede Murray’s] insurer. In a report of that date, he expressed the opinion that [Ms Howard] did not suffer a shoulder injury at the time of the incident of 16 January 2009. He accepted that she suffered an injury to her neck in that incident but opined that,
“Any aggravation sustained to her cervical degenerative disease on 16 January 2009 would have settled after a few weeks.”
- Dr Smith's opinion in respect of the medical condition of [Ms Howard’s] shoulders and neck cannot be accepted. It is incompatible with the earlier findings of injury by Members of the Workers Compensation Commission as I explained in the earlier [Certificate of Determination] in this matter.
- By a supplementary report dated 9 September 2014, Dr Smith commented:
“I have reviewed the surveillance videos and would consider that there is no likelihood of there being anything wrong with her and once again, as far as I can tell, she is fit to do any work suitable for women her age without any restriction whatsoever.”
- Dr Smith's opinion was given some eight years before [Bede Murray] denied liability to pay weekly compensation. In the years since he issued the report, [Ms Howard] has undergone several significant operative procedures. These matters cast doubt on Dr Smith's opinion on the incapacity issue in this case.
- However, there are other aspects of Dr Smith's reports that are difficult to accept. First, he does not identify what aspects of the surveillance videos led him to the opinion that there was "no likelihood of there being anything wrong with her". Secondly, it is extremely difficult to reconcile that conclusion with [Ms Howard’s] long surgical history. It is true, as Mr Talintyre [counsel for Bede Murray] submitted, that a finding of permanent impairment does not prove incapacity. On the other hand, it would be surprising if a patient who had undergone a cervical fusion would be certified fit for work without restriction. Thirdly, Dr Smith's opinion is very different to the conclusion reached by Dr Bentivoglio.
The Member also referred to the opinions expressed by Dr Bentivoglio and two more recent medical reports that had been obtained by Ms Howard.
In relation to the surveillance evidence, the Member said:
- I have carefully considered that video in the context of the medical evidence and conclude that it would be wrong to reach a conclusion adverse to [Ms Howard’s] credit on the basis of these limited observations. On the other hand, the video evidence of [Ms Howard] taken in September and October 2020 casts doubt as to whether [Ms Howard’s] recent presentations to medical practitioners including Dr Patrick, Dr Rae and Dr Gordiev is entirely reliable. It also suggests the possibility that [Ms Howard] has some capacity for work, a subject to which I will return later in these reasons.
- While the surveillance evidence does show [Ms Howard] driving a tractor, driving [a] mower, and, at intervals, using her arms at and below shoulder height in a fairly fluent fashion, to pick up debris on her property, it cannot nullify the medical evidence which suggests that [Ms Howard] does have significant pathology in her shoulders and has undergone two bouts of cervical surgery.
- Reservations concerning the reliability of a worker's evidence may lead to a finding that they have not proven total or partial incapacity. The circumstances of this case do not readily lend itself [sic] to such simplistic analysis. With the exception of the short period when she worked for Meals on Wheels [Ms Howard] has worked with horses or in other rural work during her adult life. She told Dr Henke that she left school before obtaining her School certificate. Dr Eikens recorded that she was not dyslexic, but she was not accomplished at reading or writing.
- Plainly, [Ms Howard’s] constricted capacity to work was diminished by the 1987 injury and further diminished by the subject injury and the multiple operative procedures that she has undergone following the injury. The fact that she has not worked many years, is dependent on medication, and is in the last term of her working life further detracts from her capacity to obtain a real job. While he did not have access to the surveillance videos, I suspect that the views of Dr Bentivoglio are an accurate assessment of her situation and the best that can be hoped for is that [Ms Howard] can maintain her small property. There is no further medical evidence in [Bede Murray’s] case after this time which might suggest a different outcome.
The effect of those decisions was that where the basis of the appeal pursuant to s 352(5) was error of fact, the authority of the Deputy President to intervene depended on establishing not merely a preference for a different view of the evidence but an error in the fact-finding exercise undertaken by the Member.
(a) Ground One: The Member erred in fact and/or discretion in failing to accord adequate weight to the surveillance evidence relied upon by [Bede Murray];
(b) Ground Two: The Member erred in fact and/or discretion in failing to accord adequate weight to the evidence of Dr Smith;
(c) Ground Three: The Member erred in fact and/or discretion in failing to accord adequate weight to the evidence of the lay witnesses called by [Bede Murray];
(d) Ground Four: The Member erred in fact and/or discretion in failing to accord adequate weight to the evidence of the absence of early complaint;
(e) Ground Five: The Member erred in fact and/or discretion in failing to accord adequate weight to other matters affecting [Ms Howard], and
(f) Ground Six: The Member erred in law by failing to provide sufficient reasons for determining that [Ms Howard] had no current work capacity.
- The Member accepted that the surveillance evidence cast doubt upon [Ms Howard’s] credit and because her evidence was unreliable, he needed to look to the objective evidence that corroborated her assertions. The Member measured the surveillance evidence, which he considered may have indicated that [Ms Howard] had a capacity for work, against the other objective evidence. He pointed to the extensive recorded history of [Ms Howard’s] intake of pain killing medication, including opioids, which was corroborated by references to those medications throughout the medical evidence, and the explanation by Dr Jain that [Ms Howard] tended to overdo things and then took the medication to address the pain. The Member further took into account the radiological investigations and the surgeries performed, including the requirement for revision surgery, which all supported the case that [Ms Howard’s] capacity for work was questionable. He further took into account the opinion of Dr Bentivoglio, [Bede Murray’s] medical expert, that the best [Ms Howard] could do was perform activities on her small rural property.
The ADP concluded that there was no error in the approach taken by the Member and therefore the ground of appeal failed.
The ADP adopted a similar approach in relation to grounds 2, 3 and 4, all of which raise an issue concerning the weight the Member placed on specific types of evidence. For reasons that will become apparent, it is not necessary to deal with them in any detail.
As the ADP observed, the only “other matter” referred to by Bede Murray in relation to ground 5 was that Ms Howard attended the arbitration hearing using a mobility scooter. The Member had said in his reasons that he had not been influenced by Ms Howard’s “dire presentation at the arbitration hearing”. Again, the ADP dealt with the complaint that the Member had failed to place weight on this evidence as going to Ms Howard’s credit by pointing out that when cross‑examined on the use of the mobility scooter, Ms Howard explained that she had started using the scooter because of problems with her hips. That explanation meant that the use of the scooter was irrelevant to her claim and that “there is no evidentiary basis for asserting that the use of the scooter was somehow an attempt to elevate the seriousness of her work injury”: AD[245].
Ground 6 was a complaint about the adequacy of the Member’s reasons, which the ADP dealt with by considering the relevant legal principles and explaining the reasoning process the Member had engaged in, which the ADP thought was sufficient.
1A. The Deputy President's discretion in finding that the evidence of [Ms Howard] that she took painkilling medication and gave complaints of pain to doctors was of greater weight than the evidence of the surveillance was an unreasonable exercise of her discretion [216].
1B. The decision of the Deputy President to accord greater weight to the medications [Ms Howard] was prescribed and her complaints to doctors than to the surveillance was a decision no reasonable reviewer in the position of a Deputy President would have made.
…
2A. The Deputy President's finding that the opinion of Dr Smith was of little prohibitive value and should not be accepted over the opinions of the treating doctors, radiological evidence and the evidence provided by medicolegal experts was a failure of her discretion and/or was unreasonable [226].
2B. The decision of the Deputy President to accord greater weight to the radiological evidence, the opinions of the treating doctors and the evidence provided by medicolegal experts over the opinion of Dr Smith was a decision no reasonable reviewer in a position of the Deputy President would have made.
…
4A. The decision of the Deputy President to find that [Ms Howard] had no current working capacity was a decision no reasonable reviewer in the position of the Deputy President would have made.
Most of Bede Murray’s written and oral submissions were directed at establishing that the Member’s and the ADP’s decisions were so unreasonable that they amounted to an error of law. That was said to be because the Member preferred the subjective evidence of Ms Howard concerning her symptoms which formed the basis of much of the medical evidence on which she relied even though the Member did not accept Ms Howard as a credible witness. On the other hand, the Member rejected the evidence of Dr Smith, even though he was the only doctor to express an opinion that was based on the only objective evidence – that is, the surveillance evidence. By adopting the Member’s conclusions, the ADP is said to have repeated those errors.
The submissions made by Bede Murray misunderstand the nature of an appeal to this Court.
Under s 353(1) of the 1998 Act, an appeal lies to this Court from a decision of the Commission constituted by a presidential member where a party is “aggrieved by a decision of the presidential member in point of law”. The constraint on the right of appeal to one in point of law prevents this Court from reviewing findings of fact made by the non-presidential member, or factual errors made by the presidential member where there is no error in point of law: see Cruceanu v Vix Technology (Aust) Ltd [2020] NSWCA 203 at [4] and [65] (Basten JA).
Even more significantly in this context, as Kirk JA (with whom Meagher JA and Simpson AJA agreed) explained in Fisher v Nonconformist Pty Ltd (2024) 114 NSWLR 1; [2024] NSWCA 32 (Fisher) at [23], the complaint generally must relate to the decision being appealed from – that is, the decision of the presidential member, not the decision of the non-presidential member. In some cases, the complaint may also relate to an error of law made by the non‑presidential member. An example is where a presidential member erroneously deals with a complaint about an error of law made by the non-presidential member: see Fisher at [48]. But in every case the focus of the appeal under s 353(1) remains the decision of the presidential member.
In addition, and relatedly, the appellant must identify an error in point of law on the part of the presidential member. As Kirk JA explained in Fisher:
[51] … The appeal need not involve a decision made by the presidential member on a point of law so long as the grounds raised in this court are on points of law. Relevant points of law include jurisdictional errors or other errors of law. Any error must be material in order to obtain relief. The point of law need not necessarily have been raised below, for example if a pure issue of law is raised such as an argument that the presidential member has misconstrued the statute. That being said, especially for issues which are not pure matters of law, it will often be the case that a presidential member will not have erred in law if an issue which could have been raised below was not. If the presidential member has wrongly rejected an argument that the non‑presidential member made jurisdictional or other legal error, then that will generally manifest legal error by the presidential member.
In the present case, the task of the ADP was to consider whether the Member had made any of the errors raised by the six grounds of appeal raised before her. The question for this Court is whether the ADP made any of the errors in point of law raised by the grounds of appeal before this Court in addressing those six grounds. That requires consideration of the question whether the grounds of appeal raised before this Court concern an error in the way in which the ADP addressed the six grounds before her and, if they did, whether that error could properly be characterised as an error in point of law.
The amended grounds of appeal do not do that. Rather, grounds 1A, 1B, 2A and 2B, consistently with the submissions that were advanced, simply seek in a slightly amended form to reagitate grounds 1 to 4 of the grounds of appeal relied on before the ADP. Each of grounds 1A, 1B, 2A and 2B concerns what are said to be specific errors in the fact-finding process of the ADP. But those grounds do not raise any relevant errors on the part of the ADP in dealing with grounds 1 to 4, let alone errors in point of law that are open to correction by this Court. Moreover, on their face, none of the grounds before this Court raise an issue concerning the way the ADP dealt with grounds 5 and 6 before her.
To take ground 1 of the grounds of appeal before the ADP as an example, that ground was that the Member “erred in fact and/or discretion in failing to accord adequate weight to the surveillance evidence relied upon by” Bede Murray. The ADP considered the weight that the Member had given to the surveillance evidence and explained why the Member had discounted it. That explanation included the fact that the surveillance evidence was out of date, some of it seriously so. It also included the fact that the surveillance evidence was difficult to reconcile with other evidence, including the fact that Ms Howard had been on pain medication for an extended period and that her complaints were supported by the radiological investigations and the surgical procedures that she had undergone. It also included evidence given by Dr Romil Jain, a pain specialist, who provided a report on 9 March 2023 and who had expressed the opinion that “[Mrs Howard] tends to overdo things, that would exacerbate her pain, she would take further opioids to manage flare-up, she would also take them before doing those activities, and that tends to give her this short-term pain relief and a false sense of security”.
After considering that material before the Member and the conclusion the Member reached on the issue, the ADP concluded that the Member had not erred in the weight that he had attributed to the surveillance evidence. The ADP adopted the same approach to grounds 2, 3 and 4. No error, let alone an error in point of law, is identified by grounds 1A, 1B, 2A and 2B before this Court in the approach taken by the ADP.
Ground 4A falls into a somewhat different category. That ground in effect contends that the ADP’s decision that Ms Howard had no current working capacity was unreasonable in the sense explained in [1948] 1 KB 223. But the ADP was never required to address that question in those terms. It was not one of the grounds of appeal before the ADP that the Member had erred in concluding that Ms Howard had no current working capacity. Had that been a ground of appeal, it would have been necessary for the ADP to consider whether the Member had erred in that respect and in doing so to form her own opinion on the question, giving due weight to the advantages enjoyed by the Member in reaching the conclusions that he did. But it can hardly be an error for the ADP to fail to address an issue that was not raised before her. That point is not undermined by the fact that the issues raised by grounds 1 to 4 before the ADP may have been relevant to the question whether Ms Howard had any current working capacity. What the ADP had to address and what she did address was whether the Member had placed inadequate weight on certain evidence as contended for in those grounds, not whether Ms Howard had any current working capacity. There is, therefore, no merit in ground 4A.
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EB Murray Family Investments Pty Ltd t/as Bede Murray Racing Stables
Howard
[2003] HCA 22
(2024) 114 NSWLR 1
(2003) 214 CLR 118
(2025) 117 NSWLR 448
(1979) 142 CLR 531
Appeal dismissed. The appellant was ordered to pay the respondent's costs up to 10 August 2026 on the indemnity basis and the respondent's remaining appeal costs on the ordinary basis: [53].
For those reasons, the appeal must be dismissed with costs. During the hearing, Kirk JA raised with Mr Turnbull SC, who appeared for Bede Murray, whether there was any reason why Bede Murray should not pay Ms Howard’s costs in relation to the abandoned grounds of appeal on an indemnity basis. After obtaining instructions, Mr Turnbull accepted there was no opposition to that course. It follows that Bede Murray should pay Ms Howard’s costs on the indemnity basis up until the time it filed its reply submissions. It was only after that date that the original grounds of appeal were abandoned.
Accordingly, I propose the following orders:
Appeal dismissed;
Order that the appellant pay the respondent’s costs up until 10 August 2026 on the indemnity basis and otherwise pay the respondent’s costs of the appeal on the ordinary basis.