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[2025] NSWCA 157
mixed. Leave to appeal granted to the extent necessary. Appeal allowed on ground 1 and otherwise dismissed. The decision of the Personal Injury Commission constituted by the Acting Deputy President was set...
The Court of Appeal corrected the standard used for appeals from Commission members. A Presidential member cannot dismiss a factual challenge simply because the original finding was one the member could reasonably make. The Presidential member must review the evidence, account for any relevant advantage the original member had, and reach an independent view. The Court nevertheless rejected the State’s separate argument that the causation reasoning relied only on increased risk: read fairly as a whole, the member had accepted evidence of a material causal contribution from PTSD to the conditions leading to death. The State’s appeal was therefore allowed on the appeal-standard issue and remitted, but dismissed on causation.
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2,408 words · generated 06/10/2026
The appeal arose from a death-benefit claim under s 25(1) of the Workers Compensation Act 1987 (NSW). Craig Stockwell worked as a member of the NSW Police Force between 2003 and 2019. During his service he encountered traumatic events, including murders, suicides and fatal motor vehicle accidents. It was undisputed that he developed post-traumatic stress disorder (PTSD) and ceased duties. He was subsequently diagnosed with gastroesophageal reflux disease (GORD), Barrett’s oesophagus and adenocarcinoma. The adenocarcinoma was the immediate cause of his death on 27 November 2022: [7]-[8].
22 cited instruments linked from this judgment.
His de facto partner, Danielle Culhana, claimed the death benefit for herself and the deceased’s children and former wife, who were later joined in the proceedings. The judgment states the applicable death benefit was $891,100: [10], [12]. The State disputed liability, arguing that the death had not been shown to result from the work-related injury. It accepted that Stockwell had sustained PTSD arising out of or in the course of his deemed employment, but contested the causal link between that injury and his death: [10]-[11].
The Commission member accepted that the contribution of the PTSD to the adenocarcinoma, and consequently to the death, was material: [16]. The State appealed to an Acting Deputy President under s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act). The Acting Deputy President dismissed the State’s grounds. In doing so, he asked whether findings were “available” or “open” to the member, and said it was insufficient that he would have drawn a different inference: [17]-[19].
The State then appealed to the Court of Appeal under s 353 of the WIM Act. It argued, first, that the Acting Deputy President had applied an erroneously narrow standard of review under s 352(5), and, second, that the member had used an erroneous causation test under s 25(1): [3]-[5]. The Court allowed the appeal on the first ground, dismissed it on the second, and remitted the State’s appeal to the Commission for determination in accordance with law: [90]-[96].
The central question was what Parliament meant by the amended s 352(5). Before the 2011 amendments, the provision said an appeal was “by way of review”. The amended text instead says that an appeal is limited to determining whether the decision was affected by “any error of fact, law or discretion”, and that it “is not a review or new hearing”: [30]-[31].
The Court accepted that the amendments narrowed the former right of appeal. The legislative materials expressly said they were intended to respond to Sapina v Coles Myer Ltd, which had treated the former “review” language as permitting a broader reconsideration than correction of error: [37]-[38]. But the question was how far the amendment narrowed the appeal. The Court rejected the proposition that it required the Presidential member to defer to any factual conclusion that was open to the member at first instance.
Leeming JA construed the wording by reference to the text, statutory context and purpose: [39]-[40]. The language “any error of fact, law or discretion” uses established terminology associated with an appeal by way of rehearing. The Court considered authorities distinguishing an appeal by way of rehearing, which ordinarily proceeds on the record from the first instance and requires error, from a hearing de novo, which starts afresh: [41]-[48]. The amended appeal is not the old statutory “review” and is not a new hearing, but that does not mean the appellate decision-maker must use the restricted “open to the primary decision-maker” test.
The Court relied particularly on Warren v Coombes and Fox v Percy. Warren rejected the approach that an appellate court should uphold a factual inference merely because it was one the trial judge could reasonably draw. Instead, the appellate court must decide the case for itself, while giving appropriate weight to the primary decision-maker’s advantages: [60]-[64]. The related reasoning in Lee v Lee was also discussed: restraint is relevant where factual findings depend on observing witnesses, but it does not replace independent appellate consideration of inferences from established or undisputed facts: [62].
The approach in Raulston v Toll Pty Ltd was inconsistent with that line of authority. The first general principle in Raulston relied on Whiteley Muir & Zwanenberg Ltd v Kerr, including the proposition that it is not enough for the appellate decision-maker to prefer a different inference: [49]-[51]. Leeming JA considered that principle irreconcilable with Warren, Branir and Fox, and concluded that the 2011 amendments did not revive the disputed approach in Whiteley Muir: [67]-[69], [77]-[83]. The Court therefore disapproved Raulston to that extent.
Applied to this appeal, the Acting Deputy President’s reliance on whether findings were “open” and on the insufficiency of a different inference was an error in the standard applied: [18]-[19], [90]-[91]. The appeal did not, however, require the Court to determine the underlying factual dispute itself. The appropriate order was to remit the State’s s 352 appeal to the Commission for determination under the correct standard: [96].
The Court reached a different conclusion on causation. It accepted that evidence expressed only as an increased risk would not satisfy s 25(1): [14], [23]. But it assessed the member’s reasons as a whole. The member had accepted evidence that PTSD-related stress led to excessive acid secretion and GORD, which was connected to Barrett’s oesophagus and then adenocarcinoma. The reasons referred to medical evidence describing those links, including evidence from Dr Kumar and Professor Pavlakis: [23]-[27]. The Court held that this evidence supported the member’s conclusion that PTSD materially contributed to the cancer and death. Ground 2 was dismissed: [28].
Before the 2011 amendment, s 352(5) described an appeal as “by way of review”. In Tan v National Australia Bank Ltd, the Court of Appeal considered that language, alongside the powers given to the Presidential member, as supporting a fresh evaluation rather than intervention only for identified error: [34]. Sapina then stated that the Presidential member’s task was to decide for themselves whether the original decision was wrong and what was the true and correct view: [36]. The legislature responded to that expansive interpretation by replacing the review language with the present error-based formulation: [37]-[38].
After the amendment, Raulston supplied a narrow approach. It emphasised that error had to be shown and adopted propositions from Whiteley Muir, including that it was not enough that the Presidential member would have drawn a different inference: [49]-[51]. Subsequent decisions of the Court of Appeal referred to or applied that approach, but Leeming JA examined the extent and context of those statements. Some were obiter or were made without full argument. The discussion of Workers Compensation Nominal Insurer v Hill noted that the point had not been fully challenged there: [70]-[74].
State of New South Wales v Culhana states the corrected approach. Section 352(5) creates an appeal by way of rehearing. The Presidential member must identify error, but the provision encompasses “any error of fact”, not merely a failure to follow principle or a finding unsupported by evidence: [80]-[81]. The appeal is not a hearing afresh, and the primary member’s advantages still matter. In particular, appropriate allowance must be made for findings affected by seeing and hearing witnesses: [76], [91]. But the Presidential member must make an independent assessment of factual questions where there is no relevant first-instance advantage, rather than asking only if the original inference was open.
The judgment also explains the effect on decisions already made under the narrower approach. The error in standard does not automatically establish material error on a further appeal under s 353. A party must show that applying Warren and Fox could make a difference: [92]-[93]. The Court also identified the possibility of extension-of-time questions and noted that finality and reliance on payments may weigh against reopening a matter: [94].
At [30], s 352(5) is set out: an appeal is confined to determining whether a decision was affected by “any error of fact, law or discretion”, and is “not a review or new hearing”. In plain English, the appeal is not a complete do-over, but it is also not restricted to checking whether the original decision-maker had any evidence capable of supporting the result.
At [48], Leeming JA explains the difference between an appeal by way of rehearing and a hearing de novo. A rehearing is generally based on the existing record, with further evidence only occasionally admitted. A hearing de novo starts again and decides the case on evidence presented at the new hearing. This distinction explains how the statutory appeal can be broader than the “open finding” test without becoming a fresh trial.
At [60], the Court adopts the Warren v Coombes principle that the appellate court must decide the case, facts as well as law, for itself. That duty is qualified by the need to recognise advantages held by the decision-maker below. In practical terms, the appellate decision-maker must neither ignore the first-instance assessment nor treat it as conclusive merely because it was a possible view.
At [91], the Court states the rule directly: it is not sufficient to dismiss an appeal because an inference was “open” to the member. After appropriate allowance for the member’s advantages, if the Presidential member would reach a different factual conclusion, the member should give effect to that view. This is the main operational instruction for future s 352 appeals.
At [92], the Court cautions that an incorrect approach does not automatically lead to success on a further appeal. The mistake must be material. In plain English, the party must show that the correct appellate method could have affected the result, not simply point out that the wrong test was mentioned or applied.
The decision is directly relevant where a party appeals from a Commission member under WIM Act, s 352(5), and the challenge concerns factual findings or inferences. It is especially relevant where the Presidential member asks only whether the member’s finding was “open”, “available” or supported by some evidence, or says that a different inference would not be enough to justify intervention: [18]-[19], [91].
It is also relevant when the original finding depends on a mix of primary facts and inferences. The judgment distinguishes inferences from findings affected by an advantage in seeing and hearing witnesses. Where the member’s conclusion depends on witness credibility or reliability, the Presidential member must make due allowance for that advantage. Where the dispute concerns inferences from established or uncontested facts, the Presidential member may be in as good a position to assess the issue: [62]-[64], [76]-[77].
The decision is not confined to workers appealing against adverse decisions. Leeming JA observed that the narrow approach operated against appellants, who may be workers, employers or insurers, and considered the corrected approach neutral between those groups: [77], [88]. The setting is an appeal to a Presidential member under s 352, not a general statement that every kind of appeal uses the same standard.
The causation discussion is relevant to death-benefit disputes under s 25(1) where the alleged work injury is said to have contributed to a later condition and death. Evidence of increased risk alone is insufficient. The case illustrates that the decision-maker’s reasoning should be read as a whole to determine whether it found an actual contribution to the causal chain, rather than only an elevated risk: [14], [23]-[27]. The Court’s finding was based on the specific evidence summarised in this judgment and should not be read as resolving other causation disputes on different evidence.
The judgment was delivered on 17 July 2025. The supplied judgment does not identify later judicial decisions applying or interpreting State of New South Wales v Culhana. It is therefore not possible, on the material provided, to describe how later courts have treated it.
The decision itself assesses earlier treatment of the s 352 standard. It describes Raulston as having been followed or endorsed in Commission and Court of Appeal decisions, including Heggie, Inghams Enterprises Pty Ltd v Sok, Iqbal v Hotel Operations Solutions Pty Ltd and Workers Compensation Nominal Insurer v Hill: [70]-[74]. Leeming JA considered that the force of some of those statements was limited because they were obiter, made at a high level, or not reached after full argument on the point. In Hill, the judgment notes both the discussion of s 352 and the statement that there had been no challenge to the reasoning in Sok: [71]-[74].
Culhana expressly disapproves the first general principle in Raulston to the extent that it conflicts with Warren and Fox: [69], [82]. It also says that Whiteley Muir does not supply the governing test under s 352(5): [75]-[83]. Its stated prospective direction is that future appeals under s 352 should use Warren and Fox, with due allowance for relevant advantages of the member at first instance: [91].
The judgment leaves the Commission to determine the State’s appeal under s 352 according to law. It does not itself decide the remaining factual challenges to the member’s determination, nor does it resolve the outstanding questions concerning apportionment, discretionary interest or funeral expenses: [3], [16], [96].
The Court did not finally decide whether the Acting Deputy President’s decision was interlocutory for the purposes of s 353(4). It described that issue as not straightforward, noted the parties’ position, and held that nothing turned on it because leave would be granted if necessary: [4].
The judgment also leaves future cases to work through what constitutes an appropriate allowance for a member’s advantages, and when a difference in the Presidential member’s factual assessment amounts to error. It recognises that drawing the line between a different preferred result and error is not easy, referring to the discussion in Hill: [72]-[73]. The judgment supplies the governing method, but its application will depend on the nature of the finding and the record before the appellate decision-maker.
Finally, the Court identifies questions about finality and extensions of time for appeals from past decisions made using the former approach. It does not prescribe how those applications should be resolved. It notes that considerations may pull in different directions, including where a lump-sum payment has been made and a worker has changed position in reliance on it: [94].
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: State of New South Wales v Culhana [2025] NSWCA 157
Hearing dates: 16 June 2025
Decision date: 17 July 2025
Before: Bell CJ at [1];
Leeming JA at [2];
Kirk JA at [97];
McHugh JA at [98];
Free JA at [99]
Decision: 1. To the extent necessary grant leave to appeal.
2. Appeal allowed on ground 1 and otherwise dismissed.
3. Set aside the decision of the Personal Injury Commission constituted by the Acting Deputy President, and remit the State’s appeal under s 352 to the Personal Injury Commission for determination in accordance with law.
4. The State to pay the first respondent’s costs of this appeal.
5. No order as to the costs of the second, third, fourth and fifth respondents.
Catchwords: WORKERS COMPENSATION — appeal to Presidential member — nature of appeal to Presidential member — Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 352 — Presidential member dismissed appeal on basis that findings made at first instance were "open" and it was insufficient that he would have drawn a different inference — whether appeal governed by principles in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 — effect of amendments in 2011 altering nature of appeal in response to court decisions — subsequent decisions held that right of appeal under s 352 was narrower — whether this Court should depart from those decisions — Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 disapproved
WORKERS COMPENSATION — entitlement to compensation — death benefit — worker sustained post-traumatic stress disorder during employment — death caused by adenocarcinoma — whether death resulted from workplace injury — whether reasoning in Commission wrongly relied merely on an increased risk of death — no error in findings of causation
Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW), sch 5 cl 29
Common Law Procedure Act 1899 (NSW), ss 160-164
Crimes Act 1914 (Cth), s 16A
Crown Proceedings Act 1988 (NSW), ss 4 and 5
Equity Act 1901 (NSW), s 82
Interpretation Act 1987 (NSW), s 19
Personal Injury Commission Act 2020 (NSW), s 8
Workers Compensation Act 1987 (NSW), ss 3, 25
Workers Compensation Legislation Amendment Act 2010 (NSW)
Workers Compensation Legislation Amendment Act 2012 (NSW), Schedule 11 item 11, Schedule 6, Part 19H, cl 25
Workplace Injury Management and Workers Compensation Act 1998 (NSW) ss 78, 341, 352, 353
Cases Cited: Aitchison v Director of Public Prosecutions (ACT) [2021] ACTCA 21; 360 FLR 409
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Arena Management Pty Ltd (Receiver & Manager Appointed) v Campbell Street Theatre Pty Ltd (2011) 80 NSWLR 652; [2011] NSWCA 128
Benmax v Austin Motor Co Ltd [1955] AC 370
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424
Brodyn Pty Ltd t/as Time Cost and Quality v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394
Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; [1981] HCA 20
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47
Computer Edge Pty Ltd v Apple Computer Inc [1984] HCA 47; 54 ALR 767
Da Costa v Cockburn Salvage and Trading Co Ltd (1970) 124 CLR 192; [1970] HCA 43
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Enever v The King (1906) 3 CLR 969; [1905] HCA 3
Fisher v Nonconformist Pty Ltd (2024) 114 NSWLR 1; [2024] NSWCA 32
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Hall v The Nominal Defendant (1966) 117 CLR 423; [1966] HCA 36
Hee v State Transit Authority of New South Wales (2019) 100 NSWLR 274; [2019] NSWCA 175
In re Page; Hill v Fladgate [1910] 1 Ch 489
Inghams Enterprises Pty Ltd v Sok (2014) 87 NSWLR 198; [2014] NSWCA 217
Iqbal v Hotel Operations Solutions Pty Ltd [2022] NSWCA 138
Jarratt v Commissioner of Police for New South Wales (2005) 224 CLR 44; [2005] HCA 50
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
KMD v CEO (Department of Health NT) [2025] HCA 4; 99 ALJR 474
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32
Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Licul v Corney (1976) 180 CLR 213; [1976] HCA 6
Northern New South Wales Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95
Paterson v Paterson (1953) 89 CLR 212; [1953] HCA 74
Powell v Streatham Manor Nursing Home [1935] AC 243
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4
Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743
Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156
Sapina v Coles Myer Ltd [2009] NSWCA 71; 7 DDCR 54
SS Hontestroom v SS Sagaporack [1927] AC 37
State of New South Wales v Briggs (2016) 95 NSWLR 467; [2016] NSWCA 344
Steven Moore (a pseudonym) v The King [2024] HCA 30; 98 ALJR 1119
Tan v National Australia Bank Ltd [2008] NSWCA 198; 6 DDCR 363
Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75
Tudor Capital Australia Pty Ltd v Christensen [2017] NSWCA 260
Valuer-General Victoria v WSTI Properties 490 SKR Pty Ltd [2025] HCA 23
Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73; [1931] HCA 34
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505
Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54; 295 IR 172
Zuvela v Cosmarnan [1996] HCA 30; 71 ALJR 29
Texts Cited: NSW Parliamentary Counsel’s Office, PCO Standard: A guide to drafting principles for NSW legislation
Category: Principal judgment
Parties: State of New South Wales (Appellant)
Danielle Culhana (First Respondent)
Maddison Louise Stockwell (Second Respondent)
Archie JD Stockwell (Third Respondent)
Liam Michael Stockwell (Fourth Respondent)
Belinda Sultana (Fifth Respondent)
Representation: Counsel:
P Herzfeld SC, E McGinness, J Krieg (Appellant)
D Hooke SC, E Grotte (First Respondent)
J Trainor (Second Respondent)
M Dababneh (solicitor) (Third Respondent)
D Adhikary (Fourth Respondent)
Solicitors:
Hicksons (Appellant)
Law Partners Personal Injury Lawyers (First Respondent)
Littles Lawyers (Second Respondent)
MD Law Group (Third Respondent)
LHD Lawyers (Fourth Respondent)
File Number(s): 2024/00453985
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
Between 2003 and 2019, Mr Craig Stockwell was exposed to a series of traumatic events throughout the course of his employment at the NSW Police Force. Mr Stockwell later developed post-traumatic stress disorder (PTSD) and ceased duties. He was then diagnosed with various conditions, including gastroesophageal reflux disease (GORD), Barrett’s oesophagus, and adenocarcinoma, the latter being the immediate cause of his death on 27 November 2022.
Ms Danielle Culhana, the de facto partner of Mr Stockwell at the time of his death, sought the applicable death benefit under s 25(1) of the Workers Compensation Act 1987 (NSW) for payment of compensation “[i]f death result[ed] from an injury”. It was accepted that Mr Stockwell sustained an injury (that is, PTSD) arising out of or in the course of his employment as a member of the NSW Police Force. However, the State of NSW disputed liability to make payment under s 25, contesting the proposition that Mr Stockwell’s adenocarcinoma, and ensuing death, resulted from PTSD.
Ms Culhana commenced proceedings in the Personal Injury Commission, seeking compensation on the above grounds for herself, Mr Stockwell’s children and his former wife. Following a review of the evidence and submissions, the member was satisfied that the contribution of Mr Stockwell’s PTSD to his adenocarcinoma was material.
The State appealed this decision to a Presidential member of the Personal Injury Commission under s 352(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act). The Acting Deputy President rejected all three grounds of appeal, each being challenges to evidentiary findings to support the member’s conclusions. In rejecting at least some aspects of the appeal, the Acting Deputy President regarded as insufficient that he would have drawn a different inference from the evidence.
Two issues arose on appeal: (i) whether the Acting Deputy President erred in law in applying an erroneous standard of review for an appeal under s 352(5) of the WIM Act; and (ii) whether the Acting Deputy President had erred in law in failing to conclude that the test for causation applied by the member for the purposes of s 25 of the Workers Compensation Act was erroneous.
The Court held, allowing the appeal:
Per Leeming JA (Bell CJ, Kirk, McHugh and Free JJA agreeing):
Fisher v Nonconformist Pty Ltd (2024) 114 NSWLR 1; [2024] NSWCA 32, considered.
Tan v National Australia Bank Ltd [2008] NSWCA 198; 6 DDCR 363, Sapina v Coles Myer Ltd [2009] NSWCA 71; 7 DDCR 54, Hee v State Transit Authority of New South Wales (2019) 100 NSWLR 274; [2019] NSWCA 175, considered.
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9, Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833, applied.
Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, Northern New South Wales Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95, Tudor Capital Australia Pty Ltd v Christensen [2017] NSWCA 260, Inghams Enterprises Pty Ltd v Sok (2014) 87 NSWLR 198; [2014] NSWCA 217, Iqbal v Hotel Operations Solutions Pty Ltd [2022] NSWCA 138, not followed.
Consideration of:
BELL CJ: I have had the advantage of reading the reasons of Leeming JA. In an area often not illuminated by clarity and not always properly understood by practitioners, they are a beacon of light and guidance. For the reasons his Honour gives, the interpretation of the 2011 amendments to s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) took a wrong turn almost from the start in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, just as the interpretation of the amendments to s 16A(2)(p) of the Crimes Act 1914 (Cth) took an immediate wrong turn: see Totaan v R (2022) 108 NSWLR 17 at [84]; [2022] NSWCCA 75. As in that case, the present is a case where the perpetuation of an erroneous interpretation of an important procedural provision should not be permitted. I agree with Leeming JA’s lucid analysis, including on the question of departing from previous and relatively recent authorities of this Court. I also agree with the orders his Honour proposes.
LEEMING JA: The main issue in this appeal is the test to be applied by Presidential members of the Personal Injury Commission when determining appeals from members. Since amendments introduced in 2011, a relatively narrow test has been applied. The State contends that this is wrong, and a more intensive approach, reflected in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9, should be adopted. The critical distinction is whether it is sufficient (as occurred in the present case) for the Presidential member to ask whether a finding of fact was “open” or “available” to the Commission constituted by a member, or whether instead the Presidential member should determine factual challenges based on a review of all of the evidence, although having regard to the advantages enjoyed by the member.
The State of New South Wales appeals, purportedly as of right, from the determination of the Personal Injury Commission constituted by an Acting Deputy President, dismissing the State’s appeal from a determination by a member that the worker’s death “result[ed] from an injury” for the purposes of s 25 of the Workers Compensation Act 1987 (NSW), but leaving questions of apportionment, discretionary interest and funeral expenses undetermined. The State’s further appeal to this Court is pursuant to s 353(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“WIM Act”) because the decision of the Acting Deputy President is taken by the combined operation of the definition in the WIM Act, s 8 of the Personal Injury Commission Act 2020 (NSW) and s 19 of the Interpretation Act 1987 (NSW) to be a decision of a Presidential member. The Acting Deputy President, after confirming the certificate of determination, proceeded to remit the matter to the member for determination of outstanding issues.
The State’s appeal is as of right insofar as it is “aggrieved by the decision of the Presidential member in point of law”, subject to the need to obtain leave if any of the circumstances in s 353(4) are present. Whether the decision of the Acting Deputy President is “interlocutory” within the meaning of s 353(4)(a) is not straightforward. The situation bears some resemblance to a line of authority holding that a decision determining liability, where quantum has been deferred, is ordinarily interlocutory for the purpose of a right of appeal: see Hall v The Nominal Defendant (1966) 117 CLR 423; [1966] HCA 36; Licul v Corney (1976) 180 CLR 213; [1976] HCA 6; Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; [1981] HCA 20; and Computer Edge Pty Ltd v Apple Computer Inc [1984] HCA 47; 54 ALR 767: here, the State’s liability to Ms Culhana has been determined, but not its quantum. The parties proceeded on the basis that although the member’s decision did not quell the whole of the dispute, the decision of the Acting Deputy President dismissed the entirety of the appeal and was therefore not “interlocutory” within the meaning of s 353(4)(a). That may well be correct, but it is not self-apparent, although perhaps this merely reflects the phenomenon once noted by Buckley LJ that “the decisions are so conflicting that I confess I am unable to arrive at any conclusion satisfactory to my own mind as to whether this is an interlocutory or a final order”: In re Page; Hill v Fladgate [1910] 1 Ch 489 at 493-4. Nothing turns on this, because if leave be required, this is a plain case for the grant of leave, which the State sought in the alternative and to which there was no opposition. The orders I propose include a grant of leave to the extent that leave be necessary.
For present purposes, the facts are concise, as well as tragic. The deceased, Mr Craig Stockwell, had been employed as a member of the NSW Police Force between 2003 and 2019.
Mr Stockwell had been exposed to a series of traumatic events during his service. They included attending at the scenes of murder by gunshot wounds to the head and chest, suicides and fatal motor vehicle accidents. There was no dispute that he developed post-traumatic stress disorder and ceased duties. Thereafter, he was diagnosed with gastroesophageal reflux disease (“GORD”), Barrett’s oesophagus and ultimately adenocarcinoma, with the latter being the immediate cause of his death on 27 November 2022.
Putting to one side the special cases of the Commissioner and NSW Police Force senior executives, police officers hold offices for the term specified in an instrument of appointment. As explained in Enever v The King (1906) 3 CLR 969 at 975-977; [1905] HCA 3 and Jarratt v Commissioner of Police for New South Wales (2005) 224 CLR 44; [2005] HCA 50 at [4]-[10] and [64]-[72], traditionally police were servants of the Crown, serving at the Crown’s pleasure. But there are many similarities between police officers and employees in a large organisation, and various statutes applicable to “employees” provide, or have been construed so as to provide, that they extend to police officers. Examples are given in State of New South Wales v Briggs (2016) 95 NSWLR 467; [2016] NSWCA 344 at [33] and [54]-[55]. Workers compensation is no exception. Section 3(5) of the Workers Compensation Act deemed “the Crown” to be Mr Stockwell’s employer for relevant purposes, and that in turn engaged ss 4 and 5 of the Crown Proceedings Act 1988 (NSW), with the former authorising civil proceedings against the State of New South Wales, and the latter entitling the State of New South Wales to appeal.
Section 25(1) of the Workers Compensation Act provides for the payment of compensation “[i]f death results from an injury”. It was accepted that the deceased sustained an injury, namely post-traumatic stress disorder, arising out of or in the course of his (deemed) employment as a member of the NSW Police Force. The first respondent, Ms Danielle Culhana, who was the deceased’s de facto partner at the time of his death, sought the applicable death benefit pursuant to s 25(1), which was $891,100.
A dispute was crystallised by a notice pursuant to s 78 of the WIM Act disputing liability to make any payment under s 25. The dispute between the parties was whether Mr Stockwell’s death resulted from PTSD, and that was argued including by reference to whether the conditions, including gastroesophageal reflux disease, and Barrett’s oesophagus, resulted from PTSD.
Ms Culhana commenced proceedings in the Personal Injury Commission to resolve that dispute, and ultimately the second, third and fourth respondents (the deceased’s children) and the fifth respondent (his former wife) were joined. A hearing took place before a member of the Commission on 21 March 2024, with all six parties represented by separate counsel and solicitors.
Part of the evidence adduced before the member was directed to the anxiety and stress associated with Mr Stockwell’s PTSD giving rise to an increased risk of GORD and Barrett’s oesophagus. Thus, for example, Professor Fox, retained by the solicitors acting for Ms Culhana, prepared a report which stated that various research publications noted that “stress can exacerbate GORD-related symptoms, increasing hypersensitivity of oesophageal mucosa to acid exposure”, “psychological stress is a major impact on gut mucosal function and affects the course of gastrointestinal disorders”, “stress causes barrier dysfunction of the gastrointestinal mucosa that by mechanism involve neuropeptides and mask cells” and that “this increased permeability is a pathogenic factor in GORD”.
Insofar as this opinion evidence was directed to Mr Stockwell’s sustaining merely an increased risk of any harm or death, it is insufficient to satisfy the test posed by s 25(1) of the Workers Compensation Act. The authorities bearing on that issue were comprehensively reviewed by this Court in Fisher v Nonconformist Pty Ltd (2024) 114 NSWLR 1; [2024] NSWCA 32. Kirk JA, with whom Meagher JA and Simpson AJA agreed, said:
99 An oft-cited decision of this Court considering causation in the context of workers compensation legislation is Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, being another heart attack case, albeit one of a different kind. The relevant statutory test there used the words “results from”. Kirby P said at 463-464:
Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase “results from”, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death “results from” a work injury. What is required is a commonsense evaluation of the causal chain.
100 The third sentence quoted is consistent with the view that an increase in risk is not enough of itself to establish causation in the workers compensation context.
Unfortunately, this decision was not cited to the member, despite the superabundance of representation.
After summarising the evidence and the parties’ submissions, the member identified the test as whether the injury materially contributed to the death, and that it was not necessary to show that the injury was the primary or predominant cause of death: at [219]. She referred in particular to the evidence of a causal relationship between the post-traumatic stress disorder and the increased acid secretions in his stomach leading to GORD and consequently Barrett’s oesophagus. Part of that reasoning referred to Professor Pavlakis’ evidence that given Mr Stockwell’s age and absence of family history, “it was more probable” that his work stress, smoking and perhaps excessive alcohol intake collectively led to cancer: at [223]. Ultimately, she preferred the opinions of four of the experts, as opposed to two called by the State, to be satisfied that “the contribution of the deceased worker’s injury to the adenocarcinoma and consequently, his death, was material”: at [230]. I shall return below to some of that evidence.
The Acting Deputy President heard and determined the State’s appeal on the papers. He reproduced summaries of the evidence and the parties’ submissions at [18]-[99] in a way which was not the subject of any criticism and which need not be summarised. At [103] he reproduced passages from the influential decision of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, and what had been said by way of approval of that approach in Northern New South Wales Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95 and Workers Compensation Nominal I**nsurer v Hill [2020] NSWCA 54; 295 IR 172 at [20], which shall be addressed below.
The Acting Deputy President applied those authorities to resolve each of the three grounds of appeal. In respect of the first, he rejected various challenges, saying “[t]here was ample evidence to support the Member’s conclusion”, and “[a]s is often the case, an alternative view could be taken of some aspects of the evidence” but that “[t]he totality of evidence does not permit a conclusion [that the finding was] against the weight of the evidence”: at [120], [121] and [123]. The second, which concerned when there was increased consumption of alcohol and tobacco, was rejected by reasoning which commenced with the question whether the finding was “available”, and included the observations that “[i]t is an insufficient basis to uphold the appeal that I would have drawn a different inference” and that it was “open” to the member to make the finding that she did: at [128], [134] and [135]. The third was consequential, but even so the Acting Deputy President stated that there was “a substantial body of medical opinion to support the Member’s findings of a connection between psychological symptoms, increased smoking, and adenocarcinoma”: at [139].
It will be seen that at least in rejecting the second ground of appeal, and arguably also in rejecting the first and third, the Acting Deputy President (consistently with authorities binding him) regarded as insufficient that he would have drawn a different inference from the evidence.
Because the deceased was a police officer, the amendments made by the Workers Compensation Legislation Amendment Act 2012 (NSW) did not apply (see Schedule 6, Part 19H, cl 25) and in particular s 341 as inserted by that statute, which provides that each party is to bear that party’s own costs and denies power to the Commission to order costs, was inapplicable (see Schedule 11 item 11 of the 2012 Act). This Court was told that costs of the appeal had not yet been determined.
Ground 2 was that the Acting Deputy President erred in law in failing to identify as erroneous the test for causation applied by the member. This raises a short, discrete point, which can conveniently be addressed immediately.
The member is not fairly to be criticised for failing to apply Fisher v Nonconformist Pty Ltd when none of the parties had referred to that decision. Moreover, and more importantly, the Acting Deputy President is not fairly to be criticised for failing to find that an erroneous test of causation was applied when that was not one of the grounds of appeal raised by the State in its appeal from the member to him. Ms Culhana pointed out as much in her written submissions, and the State candidly acknowledged that the point was new, and maintained that an appeal under s 353 of the WIM Act could raise a point of law which had not previously been raised, as had been noted in Fisher v Nonconformist Pty Ltd at [46]. I incline to the view that the question of law sought to be raised falls within the scope of the appeal to this Court. But it is unnecessary to reach a concluded view on the point, in circumstances where the ground may be addressed on its merits assuming, favourably to the State, that this ground is available.
It is true that some of the evidence before the member (notably, the opinion of Professor Fox) was expressed in terms of an increased risk. It is also true that there is some language in the member’s reasons which is suggestive of an increased risk of death, which is insufficient, as was observed in Fisher v Nonconformist Pty Ltd. But read as a whole, that is not how the member approached causation. Instead, she accepted evidence that GORD and Barrett’s oesophagus actually came about because of Mr Stockwell’s work-related stress. That evidence included Dr Kumar stating, after a gastroscopic procedure had confirmed GORD, that:
This would be secondary to excessive gastric secretion cause[d] by his PTSD. Of concern, histopathology in a clinical setting has been shown to have Barrett’s [oesophagus]. Barrett’s is a pre-cancerous condition caused through the chronic exposure of the gastric mucosa to acid.
He is known to suffer from post-traumatic stress disorder (PTSD). This is known to cause increased acid secretion by the stomach due to the anxiety and worrying associated with PTSD. He has also been smoking heavily and drinking I believe both these habits are also attributable to PTSD as it is used to relieve the symptoms of PTSD, as well as to relieve his anxiety. Increased and repeated continuous secretion of acid in the stomach, with reflux, is known to cause Barrett’s oesophagus in which there is a double change in the lining of the oesophageal mucosa in such a way that it is unable to defend the organ against the erosive nature of the hydrochloric secretions from the pyloric antrum of the stomach. These are known causes of Barrett’s oesophagus which he was confirmed to have on the gastroscopy and histological findings of 4/3/21. Barrett’s oesophagus itself is a known cause of adenocarcinoma of the oesophagus. With uncontrolled and continued gastric acid reflux he has since progressed the Barrett’s into an adenocarcinoma of the oesophagus.
I consider his adenocarcinoma to be directly caused by the Barrett’s oesophagus which he was confirmed to have on 4/3/21. The Barrett’s oesophagus itself is caused through excess acid secretion which I feel is related to the anxiety and stress associated with his diagnosed PTSD.
The most likely aetiologic pathway for his cancer would be longstanding psychological stress leading to chronic GERD and ultimately Grade IV ulcerative oesophagitis, and Barrett’s oesophagus then adeno carcinoma.
Increased alcohol consumption and binge drinking in order to cope with the symptoms of PTSD is a widely recognized occurrence. Alcohol is recognized as one of the aggravating factors for GORD due to relaxation of the lower oesophageal sphincter and direct mucosal damage from the alcohol which in some patients progresses to Barrett’s oesophagus which can progress to oesophageal cancer. Unfortunately, this pathway from PTSD to alcohol abuse to GORD to Barrett’s to oesophageal cancer appears to have occurred very rapidly in Craig Stockwell’s case.
That evidence squarely supported the reasoning of the member that the PTSD would materially contribute to the adenocarcinoma and therefore to Mr Stockwell’s death.
This ground should be dismissed.
(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.
It will be seen that the first sentence of the new subsection identifies the limitations on the right of the appeal, and the second sentence identifies what the appeal is not. Three textual points are to be noted.
The most obvious change is the reversal of the position concerning “review”. The original form of the subsection characterised the right of appeal as a review, while the amended provision provides unambiguously that it is not a review.
The amended provision also now provides that the appeal is not a “new hearing”. I shall return to what that term means.
The amended provision also states that the appeal is “limited” to whether the decision was or was not affected by “any” error of fact, law or discretion. The word “limited” is, of course, limiting, but here it precedes words of repeated generality. The class of errors, which extends to fact, law or discretion, is very broad (for it is difficult to contemplate an error which does not fall within those categories).
Appeals are creatures of statute: Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 at [57]. It may seem odd to some that the appeal created by s 352, as amended, is defined in terms of error. As Dixon J explained in Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 108; [1931] HCA 34, “appeal” was a process familiar to chancery and foreign to common law. “Appeal as distinguished from error was not a process of common law”. At the time he wrote, an appeal by way of rehearing lay to the Full Court of the Supreme Court of New South Wales pursuant to s 82 of the Equity Act 1901 (NSW), but at common law there were instead motions for a new trial, to set aside a verdict, in arrest of judgment or for judgment non obstante veredicto following a trial at common law before the court constituted by judge and jury: see Common Law Procedure Act 1899 (NSW), ss 160-164, and Arena Management Pty Ltd (Receiver & Manager Appointed) v Campbell Street Theatre Pty Ltd (2011) 80 NSWLR 652; [2011] NSWCA 128 at [52]. The historical contrast between “appeal” and “error” may be relevant to the construction of the right of appeal conferred by s 352(5), but as will be seen below, familiarity with the post-Judicature fused procedure points strongly against such an approach.
Prior to 2011, s 352(6) prohibited fresh or additional evidence being adduced on appeal to the Commission, in addition to or in substitution for the evidence in relation to the decision appealed against, except with leave. The amendments in 2011 re-enacted that prohibition, but went further by imposing limitations upon the circumstances in which leave may be granted.
The fact that the term “appeal” may refer to a hearing de novo, the fact that the appeal is described as one “by way of review”, together with the largely unlimited discretion conferred on the Deputy President as to the manner in which the appeal will be conducted and the broad powers, including the power to make a “new decision” in place of that subject to appeal, all tend to confirm that the Deputy President may conduct a fresh hearing and is not constrained to intervene only if satisfied that the decision of the arbitrator was affected by identifiable error.
Both parties appealed the determination of the arbitrator under s 352 of the WIM Act. In an appeal to the Commission constituted by a presidential member from an arbitrator’s decision, the question to ask is whether the arbitrator erred, either by way of law, fact or discretion: see Allesch v Maunz (2000) 203 CLR 172 at 180. If such an error is established, and it is such that, but for it, a different decision would have been made, the presidential member determining the appeal may revoke the arbitrator’s decision and substitute a different reason for it, or may remit the matter to the arbitrator concerned or a different arbitrator for determination in accordance with any decision or directions of the Commission: see s 352(7) of the WIM Act.
The notion of “review of a decision” had been clearly held in the context of the former legislation and the WIM Act to be wider tha[n] an appeal strictly so-called and encompassing a reconsideration beyond correction of error. The decision under appeal is not to be ignored, but the task of the Presidential member is, as Spigelman CJ said in Chemler, “to decide whether the original decision is wrong [that is to] decide what is the true and correct view.” This requires the Presidential member to decide for himself or herself these matters. That does not mean that there must be a de novo hearing in each case. … There is, however, an important difference in the nature of the tasks of (a) coming to the view that an Arbitrator’s view was reasonable and (b) deciding for oneself that the view of the Arbitrator is the true and correct one. In a field where evaluation of injury and evidence of incapacity can lead to different views, both or all which could be reasonably held, it is important that the parties have available to them the skill and judgment of the Presidential member reaching his or her own view on the questions involved in the decision.
In Sapina v Coles Myer Limited [2009] NSWCA 71 the Court of Appeal extended the scope of appeal rights by determining that an appeal is to proceed by way of a full review of the arbitrator’s decision, irrespective of the identification of any error by the arbitrator. The Sapina decision has the potential to lead to delays and increased costs in the commission, without achieving any benefit to workers in the system. To overcome this, the bill will restrict appeals under section 352 of the Workplace Injury Management and Workers Compensation Act 1998 to cases where there is “legal, factual or discretionary error”. The amendment reverses the effects of the court’s decision and reflects the original intent of the relevant appeal provisions.
Thus, there is no doubt that the amendments were directed at overturning the more recent decisions of this Court as to the expanded scope of the right of appeal “by way of review”.
But there is some scope for debate as to what the precise effect of those amendments was. This is a question of statutory construction which turns on the text read in context and in accordance with its purpose, recently described by the High Court as “[t]he required approach”: Valuer-General Victoria v WSTI Properties 490 SKR Pty Ltd [2025] HCA 23 at [34].
I start with the text. Section 352(5) uses technical language which is familiar when addressing the nature of appeals, including “error of fact, law or discretion”, “review” and “new hearing”. It is important to avoid approaching the legal meaning of the provision with some pre-existing taxonomy of appeals in mind; instead, the language of the provision is the necessary starting point: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [89]. But s 352 invokes the familiar technical language of appeals, to which reference is accordingly required.
In Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40, the joint judgment considered the nature of an appeal to the Full Court of the Family Court at [23]:
For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. (citations omitted)
If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing. (citations omitted)
Both those passages distinguish appeals by way of rehearing from appeals by way of a hearing de novo, and the first of those passages makes it clear that at a rehearing, as opposed to a hearing de novo, it is necessary to identify some “legal, factual or discretionary error”.
In September 2010 (which was after the bill had been introduced but before it had passed through either chamber), French CJ wrote in Kostas v HIA Insurance Services Pty Ltd at [27], citing Allesch v Maunz:
An appeal by way of rehearing requires that the appellant demonstrate “that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error”.
Words in a language other than English, including Latin words, should not be used, even if they have an established legal meaning.
An appeal to a court under this clause –
(a) in the case of an appeal against a decision for the purposes of the Legal Profession Uniform Law (NSW) – is an appeal to which section 75A of the Supreme Court Act 1970 applies and, accordingly, is by way of a rehearing rather than a new (de novo) hearing …
At least in that instance, the Legislature made it clear beyond argument that “new hearing” was an English synonym for “hearing de novo”.
The central distinction is between appeals by way of rehearing, which proceed on the basis of the record at first instance, supplemented occasionally but not ordinarily by further or fresh evidence, and appeals de novo, which start afresh and where a decision is given on the basis of the evidence given at the appellate hearing.
19 First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227) are relevant (I have substituted “Arbitrator” for “trial judge” where appropriate):
(a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if “other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong”.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the “fact of the [Arbitrator’s] decision must be displaced”. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) It may be shown that an Arbitrator was wrong “by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong.”
20 The decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 (Drummond and Mansfield JJ agreeing) is also instructive in the context of the need to establish error. His Honour observed (at [28]):
“in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”
21 After observing that a degree of tolerance for any such divergence in any particular case will often be a product of the perceived advantage enjoyed by the trial judge, Allsop J concluded (at [29]):
“The appeal court must come to the view that the trial judge was wrong in order to interfere. Even if the question is one of impression or judgment, a sufficiently clear difference of opinion may necessitate that conclusion.”
25 Fifth, what constitutes an appealable error of fact, law or discretion will be determined on a case-by-case basis. However, the Commission will be guided by the principles stated in Fox v Percy [2003] HCA 22; 214 CLR 118 at [22] to [31]. Mistakes can occur in the “comprehension, recollection and evaluation of evidence” (Fox v Percy at [24]). If, after making a proper allowance for the advantages of the Arbitrator in seeing and hearing the witnesses, the Presidential member concludes “that an error has been shown” (Fox v Percy at [27]), he or she is obliged to correct that error.
26 Sixth, credibility based findings may be overturned if “incontrovertible facts or uncontested” evidence (Fox v Percy at [28]) establish that they were wrong. In rare cases, although the facts fall short of being “incontrovertible”, such findings may be overturned if they are “glaringly improbable” or “contrary to compelling inferences” in the case (Fox v Percy at [29] citing Brunskill v Sovereign Marine & General Insurance Co Ltd [1985] HCA 61; 59 ALJR 842 at 844 and Chambers v Jobling (1986) 7 NSWLR 1 at 10).
The High Court’s decision in Warren v Coombes is familiar to any appellate advocate, despite its being in many respects an unlikely turning point. The Court was constituted by five judges, in an unremarkable motor vehicle accident appeal from this Court, involving a young teenage boy on a bicycle riding unexpectedly onto a street and colliding with a car driven by the defendant. There was diametrically opposed evidence at trial concerning the location of the car and its speed. The trial judge (Yeldham J) heard the case without a jury and found there was no negligence, and a majority of this Court dismissed an appeal (Hutley and Samuels JJA, Moffitt P dissenting). The joint judgment of Gibbs ACJ, Jacobs and Murphy JJ allowed the appeal; Aickin J, with whom Stephen J agreed, dissented. Aickin J evidently wrote first, and then added, after seeing the review of authority made by the joint reasons for judgment, that it could not be said that the authorities to which the majority referred “were investigated or the matter fully argued”: at 561. Aickin J did not decide whether the approach favoured by the majority was correct, because applying that view, he would nonetheless dismiss the appeal.
The joint judgment noted, in support of the decision of the majority of the Court of Appeal, that “the question for decision was simply one of fact and that the majority of the Court of Appeal rightly deferred to the decisions of the learned trial judge. It would not be enough, so it was said, that if they had been trying the case they might have drawn different inferences from the facts”: at 536.
The joint judgment at 537 identified the “important question”, namely:
what is the duty of an appellate court when questions of credibility have been decided and the matter which remains for decision is what inferences should be drawn from facts which have been found and are no longer in contest?
Their Honours referred to Paterson v Paterson (1953) 89 CLR 212 at 218-225; [1953] HCA 74; SS Hontestroom v SS Sagaporack [1927] AC 37 at 47; Powell v Streatham Manor Nursing Home [1935] AC 243 and Benmax v Austin Motor Co Ltd [1955] AC 370. All these stood against the approach for which the respondent contended. Their Honours endorsed Lord Denning’s words in Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743 at 762 that “the Court of Appeal no longer takes refuge in that most unsatisfactory formula: ‘Although we should not have come to the same conclusion ourselves, we do not think we can interfere’”. Their Honours also referred to a series of High Court decisions prior to 1966 standing for the same approach.
The joint judgment observed at 542 that “[t]he judgment of Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 heralded a new approach”, and at 543 that “[s]ince that time the matter has been the subject of some controversy”. As will be seen below, that somewhat understates the position. Dixon CJ and Kitto J, writing for the High Court in Paterson v Paterson, had referred at 218-219 to the “settled rules” in a “long line of cases” following the conferral of a general right of appeal under the Judicature Act.
In a series of decisions commencing with Whiteley Muir & Zwanenberg Ltd v Kerr, Barwick CJ adopted a narrower approach, based on the nature of the appellate court in determining a challenge to inferences of fact. The Chief Justice said:
No doubt where the conclusion of the trial judge is not based upon or in any respect influenced by his opinion of witnesses orally examined before him, the appellate court is in an equal position with the trial judge as to what inferences can be drawn from the facts as proved before him. But this does not mean that the appellate court should treat the appeal as a hearing de novo. The trial judge, although not depending in any respect on the credibility of any witness, may have preferred one possible view of the primary facts to another as being in his opinion the more probable. Such a finding may, in my opinion, be disturbed by an appellate court but this should only be done if other probabilities so outweigh that chosen by the primary judge that it can be said that his conclusion was wrong. Again, the trial judge, having found the primary facts, may decide that a particular inference should be drawn from them. Here no doubt the appellate court has more room for setting aside that conclusion. But, even in that case, the fact of the trial judge’s decision must be displaced. It is not enough that the appellate court would itself, if trying the matter initially, have drawn a different inference. It must be shown that the trial judge was wrong. This may be achieved by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the trial judge is so preponderant in the opinion of the appellate court that the trial judge's decision is wrong (emphasis added).
Whiteley Muir & Zwanenberg Ltd v Kerr was an appeal to the High Court under s 73 of the Constitution (as had been Paterson v Paterson). However, the deferential approach was reiterated by Barwick CJ in relation to appeals by way of rehearing to intermediate courts of appeal in Edwards v Noble (1971) 125 CLR 296 at 303-307; [1971] HCA 54 and in Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 at 199; [1970] HCA 43. Barwick CJ reiterated those views, apparently without noting the difference between a strict appeal under s 73 and the appeals by way of rehearing in those South Australian and Western Australian appeals. In the latter, the trial judge had found both negligence by an employer and contributory negligence by its employee on a construction site. The Chief Justice said in relation to negligence that it was sufficient that “there was material upon which the primary judge could find” a breach of duty, a view with which he personally agreed. In relation to contributory negligence, Barwick CJ said that “had I the initial task of deciding that question I would conclude that the [employee] did not fail to take care for his own safety” but added “notwithstanding my own opinion I ought not to hold that the trial judge was wrong to conclude as he did that the [employee] had failed to take reasonable care for his own safety”: at 199.
Windeyer J adopted a view that was similar in effect, based on the idea that a conclusion of negligence was not an ordinary inference to be drawn from primary facts, but should instead be given special deference.
That narrower view of the appellate function was rejected in Warren v Coombes. The joint judgment, after a review of more than a dozen decisions, concluded on this issue at 551-553:
There is in our respectful opinion no authority that entitles us to depart from the doctrine expounded in this Court in cases before and including Paterson v Paterson (1953) 89 CLR 212 and in the House of Lords in Benmax v Austin Motor Co Ltd [1955] AC 370. The balance of opinion in cases since Edwards v Noble inclines in favour of adherence to that doctrine. Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. These principles, we venture to think, are not only sound in law, but beneficial in their operation.
… Again with the greatest respect, we can see no justification for holding that an appellate court, which, after having carefully considered the judgment of the trial judge, has decided that he was wrong in drawing inferences from established facts, should nevertheless uphold his erroneous decision. To perpetuate error which has been demonstrated would seem to us a complete denial of the purpose of the appellate process. The duty of the appellate court is to decide the case - the facts as well as the law - for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment.
The joint judgment then proceeded to disapprove of the approach adopted by Windeyer J.
Subsequently, Warren v Coombes and its insistence that it is not sufficient to conclude that an inference from primary fact (in respect of which the appellate court was in as good a position as the trial judge) was “open” has consistently been followed with respect to appeals by way of rehearing. Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 and Fox v Percy – two of the most commonly cited decisions in recent years – are illustrative. The joint judgment in Lee v Lee treated the approach in Warren v Coombes as dispositive at [55]-[56], with the sentence in bold taken from Warren v Coombes:
A court of appeal is bound to conduct a “real review” of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are “glaringly improbable” or “contrary to compelling inferences” is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, “in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge”. Here, the trial judge’s findings of primary fact were not disturbed. However, in material respects, the Court of Appeal found that the inferences that his Honour drew from those findings were wrong. Notably, the trial judge's finding that the driver was not wearing the seatbelt not only was contrary to each party's case but, if correct, on the Court of Appeal’s analysis, would lead to the conclusion that there was no real prospect that the appellant was the driver. And the trial judge's acceptance of the RACQ's case, that the appellant had been pulled from the driver's seat to the passenger seat immediately behind in something less than 90 seconds, was, in the Court of Appeal's analysis, unlikely.
Having rejected the essential planks of the trial judge’s reasoning, it was not to the point for the Court of Appeal to formulate the question as which of the two hypotheses the trial judge considered to be the more probable. Nor was it to the point to consider whether the trial judge had been unduly influenced by the DNA evidence. It was an error for the Court of Appeal to dismiss the appeals in this “very closely balanced” case on the footing that the trial judge's decision was neither glaringly improbable nor contrary to compelling inferences. It was the duty of the Court of Appeal to decide for itself which of the two hypotheses was the more probable. It was the duty of the Court of Appeal to persist in its task of “weighing [the] conflicting evidence and drawing its own inferences and conclusions”, and, ultimately, to decide for itself which of the two hypotheses was the more probable. It did not. The appellant’s second ground is made good. (citations omitted; emphasis added).
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”. In Warren v Coombes, the majority of this Court reiterated the rule that:
“[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.”
As this Court there said, that approach was “not only sound in law, but beneficial in ... operation”. (citations omitted).
Two standards of appellate review of first instance judicial determinations are of present relevance, namely what has come to be referred to as the correctness standard and a “House v The King” standard involving judicial restraint affording latitude to a trial judge. Under the correctness standard, the appellate court determines for itself the correct outcome while making due allowance for such "advantages" as may have been enjoyed by the judge who conducted the trial or hearing. With House v The King, appellate intervention is limited to circumstances where the trial judge: acted upon a wrong principle, or allowed extraneous or irrelevant matters to affect the decision; mistook the facts; failed to take into account some material consideration; or made a decision that was unreasonable or plainly unjust.
There is no reference in Raulston to the approach in Whiteley Muir & Zwanenberg Ltd v Kerr being disapproved by the High Court in Warren v Coombes. Most of the decisions I have mentioned above post-date Raulston, but Fox v Percy which the Deputy President cited includes a statement confirmatory of Warren v Coombes and inconsistent with Whiteley Muir & Zwanenberg Ltd v Kerr.
The Deputy President in Raulston also noted that Whiteley Muir & Zwanenberg Ltd v Kerr had been cited with approval in Zuvela v Cosmarnan [1996] HCA 30; 71 ALJR 29. That ex tempore judgment does not advance the position. The statement by Barwick CJ was approved, but in the context where an appellate court is reviewing “the findings of fact made by a trial judge who has had the advantage of hearing and observing the witnesses”. Immediately thereafter, their Honours added:
Of course, if the relevant fact is an inference to be drawn from the established facts, the Court of Appeal may be in as good a position as the judge at trial: Warren v Coombes (1979) 142 CLR 531 at 551.
The views of Barwick CJ in cases such as Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506, Da Costa v Cockburn Salvage and Trading Pty Ltd (1970) 124 CLR 192 at 199 and Edwards v Noble at 304 which were rejected by the majority in Warren v Coombes and the views of that majority in Warren v Coombes all contain the need for the demonstration of error. The need for demonstration of error and how that fits into the appropriate approach to dealing with the appeal is reflected in what Menzies J and Walsh J said in Edwards v Noble where their Honours expressed views to a degree contrary to those of Barwick CJ. The views of Menzies J and Walsh J are set out in Warren v Coombes at 545-547. They were views approved of in Warren v Coombes. From Warren v Coombes, the passages of Menzies J and Walsh J in Edwards v Noble, from the other authority cited by the majority in Warren v Coombes and from more recent decisions of the High Court flow a number of relevant propositions.
The first of those propositions, directed to contrasting the case where it was sufficient for an appellate court to conclude that a factual finding was “open”, were that “the appeal court must make up its own mind on the facts”.
Pausing there, enough has been said that the reasoning in Raulston on the “first general principle” cannot be reconciled with the reasons in Branir which were invoked, or what was held in Warren v Coombes which it did not mention, or what was held in Fox v Percy which it did mention, or what has subsequently been reiterated time and again by the High Court. The real question in this appeal is whether the decisions which have been made in the subsequent 14 years should prevent this Court from allowing the appeal.
The first respondent identified decisions of this Court which have endorsed or at least applied the reasons in Raulston.
In Northern New South Wales Local Health Network v Heggie, the leading judgment was written by Sackville AJA, who did not need to express a view as to the scope of an appeal under s 352: see at [70]-[71]. There are statements in both his Honour’s judgment and Basten JA’s concurrence which were relied on to support Raulston: see at [31] and [72]. Those passages do indeed tend to endorse the approach in Raulston, although the State is correct to regard them as obiter, having regard to what needed to be decided.
The first respondent also relied on Tudor Capital Australia Pty Ltd v Christensen [2017] NSWCA 260. However, the passage at [164]-[167] in the reasons of McColl JA, with whom Macfarlan JA agreed (Payne JA wrote separately), does no more than summarise at a high level the applicable principles, and falls well short of reasons which resolve disputed submissions in the Court.
There is an endorsement of the more limited scope of appeal pursuant to what was said in Whiteley Muir & Zwanenberg Ltd v Kerr in Inghams Enterprises Pty Ltd v Sok (2014) 87 NSWLR 198; [2014] NSWCA 217 at [31] where Basten JA stated, writing for the Court, that the approach limited in that way had been “correctly identified” by the Deputy President.
To similar effect, it was said in Iqbal v Hotel Operation Solutions Pty Ltd [2022] NSWCA 138 at [11] that the Deputy President had correctly noted that in the case of errors of fact, “an appellant must establish, not merely a preference for a different view of the evidence, but an error in the fact-finding exercise undertaken by the arbitrator” and that “[a]bsent established error, the Deputy President had no authority to intervene”.
The passages collected above go no further than obiter statements which accord with what was held in Raulston, seemingly without there being argument on the point. In contrast, there was evidently a fuller argument as to the nature of an appeal under s 352(5) in Workers Compensation Nominal Insurer v Hill, where both Basten JA and Simpson AJA referred to the history of that provision and its limits. Basten JA said at [17]:
The appellant complained that the expressions in [245] did not adopt the language of s 352(5) but paraphrased the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir and Zwanenberg Ltd v Kerr. This attribution was correct, but it did not follow that the Deputy President had erroneously identified the scope of her function. In written submissions, the appellant noted that Whiteley Muir “has been rejected”. That too is true, but the rejection concerned the scope of an appeal by way of rehearing under s 75A of the Supreme Court Act. Section 352(5) is in different terms. It is, as Sackville AJA noted in Heggie, clear that the Deputy President is not entitled to overturn a decision of an arbitrator unless satisfied that the decision was affected by an “error of fact, law or discretion”. The Deputy President is not entitled to interfere on the ground that she thought that a different outcome was preferable.
With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were “open” to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).
The use of this language in the Commission is not novel. It came before the Court in Inghams Enterprises Pty Ltd v Sok. In Sok, the Deputy President had described the appellate function of the Commission by reference to the language used by Barwick CJ in Whiteley Muir. This Court held, after noting the amendment of the provision with effect from 1 February 2011, and the difficulties in fixing clear linguistic boundaries to the concept of “error”, that there was no wrong decision in point of law in identifying the scope of the Deputy President’s function in those terms.
Although the appellant did not refer to Sok in written submissions, nor, after the authority was identified in the respondent’s written submissions, in its reply, it did in oral submissions seek to distinguish the passage approved in Sok. The basis of distinction was that the Deputy President in Sok had, before quoting the language of Barwick CJ in Whiteley Muir, expressly noted that the question raised was “whether the appellant has, on appeal, established error of fact”, noting that such an error will be made out in the circumstances addressed in Whiteley Muir. In the present case the Deputy President had not referred at all to the statutory language (citations omitted).
On the one hand those passages are part of the dispositive ratio of the appeal, and attend to the difference between an appeal under s 75A by way of rehearing, and the appeal under s 352. On the other hand, it is also clear that there were limitations on how the point was developed. Seemingly the appellant had not been aware of Sok until its submissions in reply. Further, Basten JA said at [24] that “[t]here was, it should be noted, no challenge to the reasoning in Sok”. Similarly, Simpson AJA addressed the nature of an appeal under s 352, but concluded that the position was no different from Sok on the basis of which it was “not necessary to go further with this ground of appeal”: at [90].
Statements in reasons for judgment making clear what was not argued, like those of Basten JA and Simpson AJA above, serve to indicate the limits of the precedential force to be attributed to a judgment. It is not greatly to the point to rely on a decision which was based on what had not been challenged in Sok in a subsequent appeal where Sok is squarely challenged.
Section 352(5) makes it clear that the appeal to a Presidential member is not a review or new hearing. It is plain that this departs from the earlier form of s 352(5) and therefore from the construction, based on the appeal being a “review”, given to that section by this Court in decisions culminating in Sapina. Although it is clear what the appeal is not, it is, perhaps, less clear what the right of appeal is.
No one doubts that questions of law must be determined afresh by a Presidential member if it is said that the member erred. Nor is it doubted that where the member has seen the applicant or other witnesses and made findings of fact based on their evidence, the member will be in a position of advantage over a Presidential member who will, in the ordinary case, determine the appeal on the papers.
The question is acute, however, when it comes to inferences to be drawn from primary facts, or uncontested facts, where the member at first instance does not have an advantage. The approach adopted by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr expresses deference to the primary decision-maker to make such findings of fact. It means that there will be cases where even after making appropriate allowances for the advantages of seeing and hearing evidence at first instance, an appeal is dismissed by reason of that deference, even though the appellate body would draw a different inference. It may be observed that the approach operates invariably against appellants, who may of course be either workers or employers (or their workers compensation insurers).
That approach was always controversial, and never wholly accepted by the High Court in appeals, and departed from the “settled rule” confirmed in Paterson v Paterson. It was addressed in detail in Warren v Coombes and disapproved, returning the position to what had earlier been held by the High Court. Thereafter what has come to be known as the “correctness standard” has been insisted upon.
Why should s 352(5) be construed in accordance with a long-since deprecated approach? Many considerations point against doing so.
First, the text of the section requires the determination of whether the decision appealed against “was or was not affected by any error of fact, law or discretion”, and excludes the appeal being either by way of “review” or “new hearing”. The statutory text picks up familiar language to describe appeals by way of rehearing, including in Allesch v Maunz and Coal and Allied Operations Pty Ltd. It is natural where the Legislature uses the language of court decisions for the statute to be construed in that way.
Secondly, that approach accords with the ordinary meaning of the provision. It is easy to overlook the word “any”. The provision extends not merely to those errors of fact where there is a demonstrable error of principle or failure to have regard to material evidence or some other error, but to “any error of fact”. On the ordinary meaning of those words, that includes cases where, after making due allowance for the advantages of the original tribunal of fact, the appellate body reviewing all of the evidence reaches a different conclusion. Another way of putting this is that it is difficult to reconcile the proposition that an appellate body would have reached a different conclusion on a question of fact yet dismiss the appeal, with the statutory language of appeals extending to “any error of fact”.
This understanding of the scheme of the Security of Payment Act accords with the earlier decision of the Court of Appeal of the Supreme Court of New South Wales in [Brodyn]. In the present case, the Court of Appeal followed Brodyn in this respect. It was right to do so. It would have been a strong thing for that Court, as indeed it would be for this Court, to have taken any other course. Since the decision in Brodyn, the Parliament of New South Wales has twice had occasion to revisit the Security of Payment Act to make substantial amendments to its provisions. No amendment was made to alter the effect of the decision in Brodyn. That circumstance is a powerful reason for rejecting any suggestion that the understanding of the legislation adopted in Brodyn, and given effect in the decision of the Court of Appeal in this case, was other than a faithful reflection of the intention of the legislature.
The first respondent did not rely on the proposition in Probuild, but when it was raised during the hearing, senior counsel for the State candidly acknowledged its force, but observed that while there were two constructions both of which were reasonably open in Probuild, in the present case “there is just nothing going for the construction”. To that may be added the considerations that the result urged by the State is not a change to the body of judge-made law, which may have consequences outside this State. Instead, it is a change to the construction of a provision of New South Wales legislation, which is unlikely to affect other jurisdictions. Revealingly, while Raulston has been cited in more than one hundred decisions of the Commission and its predecessor, it has never been applied by any body outside New South Wales. Further, if the conclusion I have reached is wrong, it may readily be corrected by an amendment by the New South Wales Parliament which, as may be seen from the reaction to Sapina, is able to act.
It may be that the construction which I favour will lead to more appeals. That proposition is contestable, and it may instead be (as the State suggested) that what will happen is that much the same number of litigants determined to appeal will continue to do so, but instead of casting their appeal in the language required by Raulston (for example, grounds based on “no evidence”), those appellants will resort to a more accurate ground; if so, that will enhance the appellate process. Neither side put forward any evidentiary basis for a conclusion that the result for which the State contended would impact the number of appeals. So far as I can see, the widening of the scope of an appeal under s 352(5) is neutral as between workers on the one hand, and employers and their insurers on the other. By way of example, of the twenty most recent appeals determined by the Personal Injury Commission constituted by a Presidential member, precisely 10 have been brought by workers and 10 by insurers (see [2025] NSWPICPD 30-49, noting that natural person appellants are one half, and corporate appellants the other half).
In Warren v Coombes*,* the joint judgment referred to the perpetuation of demonstrated error as a denial of the purpose of the appellate process. Reflected in a question posed by McHugh JA during the hearing, a perpetuation of demonstrated error in the scope of the statutory right of appeal is antithetical to the purpose of the appellate process. This appeal is the first time, so far as can be seen, where the point has been fully argued. I do not think it would be right for this Court to decline to accede to a patently correct submission of construction of the scope of a right of appeal simply because it has taken some years for the point to be argued. This Court should, in my respectful opinion, intervene.
The appeal should be allowed on the first ground.
Future appeals under s 352 should apply the approach in Warren v Coombes and Fox v Percy. Appropriate deference is to be given to members where their findings are based on evidence in respect of which they have an advantage (such as the kind identified in Lee v Lee at [55]) over the Presidential member hearing an appeal. But it is not sufficient for an appeal to be dismissed on the basis that an inference was “open” to the member, as if the member were a jury and there was some evidence supporting it. If the Presidential member, after making appropriate allowance for the advantages enjoyed by the member, would reach a different conclusion on a question of fact, he or she should not shrink from giving effect to it. Otherwise, the Presidential member will be dismissing an appeal but without fully addressing whether there is an error of fact, law or discretion.
There are apt to be decisions by the Commission constituted by a Presidential member which have applied the approach overturned by this Court’s judgment. Some may be pending appeals to this Court; others may be cases where no appeal has been lodged. The fact that a Presidential member has applied the incorrect approach does not without more mean that a further appeal to this Court under s 353 will be allowed. It will be necessary to establish material error of law. Unless it be shown that an application of the approach in Warren v Coombes and Fox v Percy and Lee v Lee would make a difference, an appeal will be dismissed.
The nature of the task is such that it ought to be possible to establish such an error in this Court, which after all will be in the same position as the Presidential member in hearing and determining an appeal on the papers. Further, as Basten JA explained in Workers Compensation N**ominal Insurer v Hill at [20], the distinction is a fine one, and it may be that there are relatively few cases where it is material.
Questions may arise concerning an extension of time within which to appeal. Considerations of finality may “pull in different directions”, as was noted in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [32]; there is also a helpful summary in Mossop J’s reasons in Aitchison v Director of Public Prosecutions (ACT) [2021] ACTCA 21; 360 FLR 409 at [18]. In the present context, it is easy to see that there may be powerful considerations telling against the exercise of a discretionary power to extend time (for example, a lump sum payment was made, and the worker has changed his or her position on the strength of that payment and the fact that no appeal has been brought).
In accordance with the parties’ agreement, there should be an order that the State pays the costs of the first respondent, which was the only active respondent in this Court, and there be no order as to the costs of the other respondents.
1. To the extent necessary grant leave to appeal.
2. Appeal allowed on ground 1 and otherwise dismissed.
3. Set aside the decision of the Personal Injury Commission constituted by the Acting Deputy President, and remit the State’s appeal under s 352 to the Personal Injury Commission for determination in accordance with law.
4. The State to pay the first respondent’s costs of this appeal.
5. No order as to the costs of the second, third, fourth and fifth respondents.
KIRK JA: I agree with Leeming JA.
McHUGH JA: I agree with Leeming JA.
FREE JA: I agree with Leeming JA. Reading the text of s 352(5) in isolation from the broader context, it might be thought that the word "limited" has the effect of constraining what would otherwise be the breadth of the words "any error of fact, law or discretion" and "the correction of any such error". However, an appreciation of the historical context and the purpose of the 2011 amendments reveals why that is not the case. As explained in the reasons of Leeming JA, the 2011 amendments were a reaction to what was perceived to be an expansive interpretation of the "review" available under the old version of s 352(5). The intention of the 2011 amendments was, in essence, to make clear that the appeal for which s 352 provides is an appeal by rehearing and not an appeal by way of a hearing de novo. Given that context, the significance of the word "limited" is only to reinforce that the appeal does not extend as far as an appeal by way of a hearing de novo.
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spelling of counsel name corrected
[4]: removed “(a)” to read “the circumstances in s 353(4) are present”
State of New South Wales
Culhana [2025] NSWCA 157
(1979) 142 CLR 531
(2000) 203 CLR 172
(2011) 80 NSWLR 652
(2001) 117 FCR 424
(2004) 61 NSWLR 421
(1981) 147 CLR 246
(2000) 203 CLR 194
Leave to appeal granted to the extent necessary. Appeal allowed on ground 1 and otherwise dismissed. The decision of the Personal Injury Commission constituted by the Acting Deputy President was set aside, and the State’s appeal under s 352 was remitted to the Commission for determination in accordance with law. The State was ordered to pay the first respondent’s costs of the appeal, with no order as to the costs of the second to fifth respondents: [96].
The State advances two grounds of appeal. The first, which was the main subject of written and oral submissions, was that the Acting Deputy President erred in law in applying an erroneous standard of review for an appeal under s 352(5) of the WIM Act. The second was that the Acting Deputy President had erred in law in failing to conclude that the test for causation applied by the member for the purposes of s 25 of the Workers Compensation Act was erroneous. After hearing from the State in full, the Court indicated that it did not require full submissions on the second ground.
For the reasons that follow, I have concluded that the first ground of appeal is made out, with the result that the appeal should be allowed and the matter remitted to the Commission for determination according to law. I would accept the State’s submission that the effect of amendments to s 352(5) the WIM Act in 2011 has been misunderstood in a series of ensuing decisions, with the result that an unduly narrow test has been applied to challenges to findings of fact, to the disadvantage of all appellants (who may be workers, or employers and their insurers). The main ground of appeal has two aspects. The first is the correct legal meaning of s 352(5), and I have concluded that the 2011 amendments do not support a return to a level of deference to the judge or decision-maker at first instance which never commanded the full support of the High Court, and which for the last 45 years has been deprecated. The second is whether the various discretionary factors relied upon in opposition to the State’s appeal should stand in the way of this Court correcting error in the first appeal where there has been full argument on this point. I have concluded that this is a case where, notwithstanding a number of decisions adopting an erroneous approach, this Court should intervene and uphold the legal meaning which reflects the ordinary meaning of Parliament’s amendments and accords with the stated legislative purpose, because it is intolerable for future appeals in workers compensation matters to be dismissed when they should be allowed if the proper test were applied. This is not a case where there are leeways of choice on a contestable proposition of law. This is a case where the reasoning hitherto applied is deficient on its face, and the fact that it has taken time for there to be full argument on the point should not stand in the way of correcting error.
Thirdly, in point of authority, there is with respect nothing in the reasons of Raulston which recognises that the approach in Whiteley Muir & Zwanenberg Ltd v Kerr had been repeatedly deprecated, most notably in Warren v Coombes (which is not cited) as noted in Branir (which was cited). There is nothing seeking to resolve the inconsistency between the two authorities cited within the “first general principle”.
Fourthly, there is nothing in the context of the 2010 amendments to support the conclusion that somehow they resurrected not the position which obtained before this Court gave an expanded definition of “review”, but a position which was at all times contested, and which existed only for one or two decades in the second half of the twentieth century.
Fifthly, as the State submitted, by reference to what had been said in this Court in Hee v State Transit Authority of New South Wales (2019) 100 NSWLR 274; [2019] NSWCA 175 at [77] following the decision of Tan v National Australia Bank Ltd, the 2010 amendments “returned the position to what it had been before this court’s decision in Tan”: at [78]. It was not suggested that in the period from 1998 until 2010 Whiteley Muir applied to appeals to Presidential members.
Aside from the question of departing from authority which I shall shortly address, the first respondent only advanced one submission to the contrary. It was said in writing, although much more mutedly in oral address, that in truth Sapina did not amount to a change in the law. It was said that the extract from the Second Reading Speech which referred to Sapina having “extended the scope of the appeal” was “an inaccurate statement”, as was the statement that “[t]he amendment reverses the effects of the court’s decision and reflects the original intent of the relevant appeal provisions”. I do not think that is correct. To the contrary, Sapina was based on the word “review” in the previous form of s 352, which was why that word was removed and replaced with a statement that the appeal was not a review. The Second Reading Speech was not mistaken; it was accurate.
In addition to the existing authority of this Court which supports the construction upheld in Raulston is the fact that the WIM Act, and indeed s 352 itself, have subsequently been amended. In Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 at [52], it was said, in relation to what had been held in this Court in Brodyn Pty Ltd t/as Time Cost and Quality v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394 of the Building and Construction Industry Security of Payment Act 1999 (NSW), that:
I propose the following orders:
(1970) 124 CLR 192
(1971) 125 CLR 296
(1906) 3 CLR 969
(2024) 114 NSWLR 1
(2003) 214 CLR 118
(1966) 117 CLR 423
(2019) 100 NSWLR 274
(2014) 87 NSWLR 198
(2005) 224 CLR 44
(2014) 252 CLR 601
(2010) 241 CLR 390
(2011) 242 CLR 573
(2019) 266 CLR 129
(1976) 180 CLR 213
(1953) 89 CLR 212
(2018) 264 CLR 1
(2016) 95 NSWLR 467
(2022) 108 NSWLR 17
(1931) 46 CLR 73
(1966) 39 ALJR 505
(1994) 35 NSWLR 452
(1986) 7 NSWLR 1