(a) Dr Conrad, who found death was caused by stroke, does not explain his reasons. > > (b) Dr Selim, who recorded alcoholism as contributing to death on the death certificate, provides no duration for it. > > (c) Dr Khan's evidence in support of the appellant's claim is premised on Mr McLean only having "consumed alcohol infrequently" prior to his psychiatric injury. Based on the medical material before the Commission, this is not correct and I agree with the Principal Member that, as a result of his opinion not being based on the full information, his conclusion as to the causal link between the injury and the alcoholism is not able to be relied on. While Dr Khan's expertise extends to "how chronic psychiatric illnesses, including post-traumatic stress disorder and alcohol use disorder, increase the individual's risks of cerebrovascular events and cardiovascular diseases",[367] he does not provide any other clear causal link between the psychiatric injury and the death of Mr McLean. However, this does not undermine his diagnosis, made on 17 March 2021, of Mr McLean having alcohol use disorder comorbidly with his PTSD. > > (d) Dr Mark Walker does not explain the bases for his diagnosis and his material does not discuss the alcohol use of the deceased prior to his psychological injury so it is not clear whether his conclusion is based on an accurate history. Accordingly, his evidence does not provide a strong link between the injury with the alcohol use and the death. > > (e) A/Prof Haber finds that death was a result of alcoholism or that alcoholism was a substantial contributing factor to the death. However, he also offers heart attack and pulmonary embolism as possible causes of death in a second report. Even in his first report, he states Mr McLean "obviously had a cardiac arrest, being the stopping of the heart" but that this "may have been a terminal event due to many possible underlying diseases." His evidence should be understood as being inconclusive as to the cause of death, but clear that alcoholism was a substantial contributing factor. The Principal Member's conclusion that his evidence is "really just speculation_"_ should be understood in the context of the Commission endeavouring to determine the cause of death. It does not, to my mind, apply to the evidence as to whether alcoholism substantially contributed to the death of Mr McLean. > > (f) A/Prof Myers found no evidence of a stroke and that death was likely caused by acute arrythmia secondary to coronary heart disease leading to cardiac arrest and death, confirmed in his second report (an assumption on this having to be made in the absence of an autopsy). While he also states that Mr McLean "clearly had a history of alcoholism"[368] he does not specify the duration, so does not tell the Commission whether it predates his psychological injury or otherwise. His evidence also provides no opinion whether Mr McLean's alcoholism was caused by or linked to his employment or the psychological injury. > > (g) Dr George's first two reports can be understood in the context of the psychiatric injury claim, for which the insurer accepted liability. Although they are both stated to be based on the relevant medical records, they do not delve into or discuss the history of Mr McLean's alcohol use prior to the psychiatric injury. Only his third report, prepared for the death claim, does that and as the Principal Member noted, he is the only doctor who examines this material. My summary of his evidence is set out above at [91] which is consistent with the understanding of this evidence by the Principal Member: see [147]-[151] above.

5. This is consistent with other medical tests in the evidence before the Commission where elevated uric acid levels have possible associations with alcoholism, but also with high meat intake, renal failure and other causes:

(a) 20 August 2018;[369] > > (b) 29 April 2016,[370] and > > (c) 25 July 2018.[371]

6. Dr George sets out his understanding of the material he considers, which is that it is indicative of consistent, high alcohol use and even "obvious alcohol abuse at various times" prior to the psychological injury, but states that it can be "verified through any pathology laboratory or access to a gastroenterologist, who could provide expert opinion".[372] As I have mentioned before, the claimants did not acquire any such expert opinion.
7. I understand this evidence of Dr George, together with the evidence footnoted in the Principal Member's reasons at [109], to be highly suggestive that Mr McLean's use of alcohol before his psychological injury was high, often constituting alcohol abuse, if not actual alcoholism. This is the foundation for Dr George's opinion, which was accepted by the Principal Member, that "the available information suggests that Mr McLean continued with chronic post-traumatic stress disorder and alcohol use disorder up until the time of his death."[373] but does "not consider that Mr McLean's alleged alcoholism resulted from his psychological injury of 14/1/2020. More than likely, it has continued on the same course, as it was pre-January 2020, with fluctuations over time, according to stressors."[374]
8. I do not need to determine whether the evidence proves Mr McLean had an alcohol use disorder or alcoholism before his psychological injury, because it is a question of whether the contention of the appellant and other claimants is made out: whether there is a causal link between the psychological injury and the alcohol use disorder and the subsequent death.
9. My own assessment of the evidence before the Commission is that it does establish that it is very likely that alcoholism was a material contributing factor to the death of Mr McLean but that it does not establish the required connection between the psychological injury and the alcohol use disorder. The evidence shows consistent and heavy alcohol use by the deceased before the injury and it is not clear whether his consumption of alcohol in fact increased after the injury. The finding by the Principal Member at [115] and her conclusions at [128], [129] in this regard is correct on the evidence before the Commission.
10. For these reasons, I find:

(a) The Principal Member misdirected herself in law by enquiring as to the cause of the death, rather than whether the psychological injury made a material contribution to the death. > > (b) However, the Principal Member properly considered the evidence regarding whether there was the requisite causal nexus between the psychiatric injury and the alcohol use disorder and correctly concluded that the evidence did not establish such a connection. > > (c) The arguments advanced by the appellant and other claimants regarding Ground 1 of the appeal are rejected.

Ground 2: The Principal Member erred in law in assessing the question of cause of death as requiring a finding of medical or scientific certainty

1. The appellant and other claimants contend the Principal Member erred in law by:

(a) requiring medical or scientific certainty as to the cause of death, when the legal process does not require this;[375] > > (b) failing to analyse and consider the possibilities disclosed by the evidence and reach a decision on the basis of probability, rather than requiring certainty,[376] and > > (c) failing to reach a decision on the cause of death because the medical evidence caused difficulties in determining the cause of death.[377]

2. The first respondent submits[378] that the Principal Member:

(a) did not approach her decision-making in the way complained of and did not use the terminology of medical or scientific certainty; > > (b) performed her functions by weighing "the factual and clinical evidence and ... assess[ed] it in the light of the expert opinions" as the appellant suggests is the correct approach;[379] > > (c) reached findings which were properly open to her on the material and set out clearly in the statement of reasons,[380] and > > (d) could not determine the cause of death because there was insufficient evidence. It was not open to the Principal Member to make a finding on this issue, on the balance of probabilities. To do so would have been in error.[381]

3. Having carefully considered these submissions and the material before me, I have formed the view that any fair reading of the reasons of the Principal Member shows that she diligently and carefully:

(a) evaluated the evidence before her according to the civil standard and > > (b) weighed the submissions made by the parties.

4. The Principal Member did not seek to reach decisions according to any standard of medical or scientific certainty. There is no foundation in her reasons for decision for such a submission.
5. I reject Ground 2.

Ground 3: The Principal Member erred in law in failing to consider whether the deceased's accepted psychological injury made a material contribution to his death

1. Each of the parties addressed this appeal ground, understandably, by reference to the debate regarding any causal relationship between the alcohol use disorder and the psychological injury, which I have dealt with above. I do not revisit that debate, having decided it.
2. However, the second respondent canvassed a range of authorities regarding the requirements of the civil standard of proof where medical evidence does not provide scientific certainty, including Bes,[382] McGuiness,[383] Fernandez,[384]Jones at 197 and Holloway at 480.[385] Based on these authorities, the second respondent submits that the Principal Member was required to analyse and consider the possibilities disclosed by the evidence and reach a decision on the basis of probability.
3. For the reasons I have discussed above, in seeking only to determine the cause of death, the Principal Member asked herself the wrong question. The correct question is set out above at [265].
4. Having found against the appellant and other claimants on the alcohol use disorder point, the Principal Member, had she asked the correct question, would then have examined whether one or more of the other causes of the death in the evidence made a material contribution to the death. She did not do so and I find that this was an error of law caused by asking the wrong question.
5. Analysing the evidence before the Commission, I find that any fair reading of it establishes that, while the underlying cause may not be clear, cardiac arrest was a material contributing factor to the death of Mr McLean.
6. A/Prof Haber states Mr McLean "obviously had a cardiac arrest, being the stopping of the heart". A/Prof Myers found that death was likely caused by acute arrythmia secondary to coronary heart disease leading to cardiac arrest and death, confirmed also in his second report (an assumption on this having to be made in the absence of an autopsy). There is other evidence of this.
7. By not finding that cardiac arrest was a material contributing factor to the death of Mr McLean, the Principal Member made an error of fact. Having reached "a different conclusion on a question of fact, [I] should not shrink from giving effect to it".[386]
8. The next question is whether there was the requisite causal nexus between the psychological injury and the cardiac arrest. This issue is not addressed by the parties.
9. Before the Principal Member, the parties discussed the evidence bearing on whether the deceased attending hospital prior to the day he died would or may have made a difference to his surviving. The Principal Member found at [136], misnumbered [43], that "I would not have been persuaded that if he had attended hospital that day it would have prevented his death, relying on the opinion of A/Prof Myers." My summary of A/Prof Myers' evidence is at [61]-[75] above and my summary of the Principal Member's findings regarding this evidence are at [152]-[157] above. While finding the death was likely caused by acute arrythmia leading to asystole with the heart ceasing to function,[387] A/Prof Myers also found there was no evidence of which he was aware that the deceased was having a cardiac event prior to his death.[388] He concluded that it was most likely the deceased suffered an unpredictable cardiac arrythmia leading to cardiac arrest and death.[389] A significant focus of his evidence was whether the deceased suffered a stroke and the potential impact of his alcoholism. When specifically asked to address whether there was a connection between the deceased's injury on 14 January 2020 and his death, he did not address the potential relationship of the psychiatric injury and the death, but assumed the question related to a fall the deceased was said to have had on that date.[390] A/Prof Myers specifically states he has no specific expertise in psychological or psychiatric matters other than from his undergraduate teaching and his application of those matters in his clinical career.[391] While he refers to the statements of both Dr Adam Walker and his brother, Benn McLean[392] he does not evaluate their account of the deceased becoming socially withdrawn and anxious about going out in connection with his disinclination to attend hospital. A/Prof Myers gives no real consideration to whether the psychiatric injury had a relationship with Mr McLean's death, including whether it caused him to not seek medical assistance where he may otherwise have done so. It is unclear whether he regarded himself as having the skill and experience to express any view on this matter, in any case.
10. I do not see in the evidence of A/Prof Myers any proper consideration of whether there is any nexus between Mr McLean's psychiatric injury and his death. If there was such a nexus, for the reasons touched on by the Principal Member at [132], the application of s 9B of the 1987 Act may arise for consideration. However, the transcript before the Principal Member and the way in which the parties have addressed the issues in their submissions discloses that the potential application of s 9B was addressed only in connection with the purported relationship between alcoholism and the psychological injury.
11. The question of Mr McLean's history of cardiac health, Kirk JA's reminder that an increase in risk is not enough of itself to establish causation, and the text of s 9B also require careful consideration.
12. Not having heard from the parties on these matters, it is not appropriate that I seek to determine them here. I think that to do so would be beyond my jurisdiction: see Ballina Shire Council v Knapp.[393]
13. However, having made an error of law by misdirecting herself as I have found the Principal Member to have done, on the submission of the first respondent[394] and having made an error of fact regarding cardiac arrest, I find that these errors if not made could well have led to a different outcome in the matter. Accordingly, they were errors relevantly affecting the outcome reached in the matter within the meaning of s 353(5) of the 1998 Act and require correction.
14. I uphold Ground 3 because the Principal Member did not consider whether:

(a) the psychological injury made a material contribution to the cardiac arrest; > > (b) the cardiac arrest made a material contribution to the death, and hence > > (c) whether the psychological injury made a material contribution to the death of Mr McLean.

15. As indicated above, I find that the evidence discloses that cardiac arrest was a material contributing factor to Mr McLean's death.

1. Pursuant to s 353(6A) of the 1998 Act, the Certificate of Determination dated 17 June 2025 is revoked.
2. Pursuant to s 353(7) of the 1998 Act, the matter is remitted to a different member to determine in accordance with this decision.

[1] Application in Respect of Death of Worker (ARDW), p 19.

[2] Variously at pp 507-511 and 620-625 of the first respondent's Reply to Application in Respect of Death of Worker (Reply), which appears to be the complete form filled in by Dr Selim; in particular, at pp 510, 622.

[4] Walker v Secretary, Department of Education [2025] NSWPIC 270 (reasons), [130].

[6] Report of Dr Graham George, 21 May 2020, first respondent's Reply, p 31.

[7] Report of Dr Graham George, 9 June 2021, first respondent's Reply, p 39.

[8] Report of Dr Graham George, 9 June 2021, first respondent's Reply, p 38.

[9] Report of Dr Graham George, 21 May 2020, first respondent's Reply, p 26; Report of Dr Graham George, 9 June 2021, first respondent's Reply, p 36.

[10] Report of Dr Graham George, 22 March 2023, first respondent's Reply, p 47.

[11] Report of Dr Graham George, 22 March 2022, first respondent's Reply, p 46.

[12] Report of Dr Graham George, 22 March 2022, first respondent's Reply, p 46.

[15] Dr Adam Walker Application to Lodge Additional Documents (ALAD), 12 February 2025.

[16] ARDW, pp 31-32; Spiteri Reply, pp 1-2.

[21] Statement of Dr Adam Walker, 12 February 2025, [46]-[50].

[22] Statement of Kayla Byrne, 25 February 2025, [16]-[28], particularly [16]-[17], [20]-[21].

[23] Reasons, [2]; Transcript 3 March 2025 (T), T 76.01-05.

[24] Statement of Dr Adam Walker, 21 November 2023, [9]-[10]; Statement of Benn McLean, undated, [9]-[10].

[25] Statement of Benn McLean, undated, [11]-[17].

[26] Statement of Dr Adam Walker, 21 November 2023, [11]-[13].

[27] Statement of Benn McLean, undated, [12].

[28] Statement of Dr Adam Walker, 21 November 2023, [12]; Statement of Benn McLean, undated, [16].

[29] Statement of Dr Adam Walker, 21 November 2023, [16].

[30] Statement of Benn McLean, undated, [17].

[31] Statement of Dr Adam Walker, 21 November 2023, [17]; Statement of Benn McLean, undated, [18].

[32] Reasons, [134], erroneously numbered [41].

[33] Transcript 3 March 2025, by the Principal Member at T 10.02 and T 57.01-05; by the third respondent's counsel at T 32.01-10; and by the first respondent's counsel at T 48.10-14.

[34] Statement of Karen Spiteri, 21 November 2023, [3]-[5].

[35] Statement of Karen Spiteri, 21 November 2023, [6]-[13]; statement of Karen Spiteri, 10 October 2024, [5]-[8].

[36] Statement of Karen Spiteri, 21 November 2023, [6], [8]-[13]; statement of Karen Spiteri, 10 October 2024, [6].

[37] Statement of Karen Spiteri, 10 October 2024, [8].

[38] Statement of Karen Spiteri, 10 October 2024, [9]-[11].

[49] I understand him to be referring to the other causes of death listed on the death certificate, at ARDW, p 19.

[65] First respondent's Reply, pp 4, 6, 7.

[67] First respondent's Reply, p 5: "This means there is little or no electrical activity in the heart".

[82] First respondent's Reply, pp 13-14.

[113] First respondent's Reply, pp 45-46.

[115] First respondent's Reply, pp 46-47.

[116] First respondent's Reply, p 493.

[118] Pain or discomfort below the ribs in upper abdomen region.

[124] Noting that at [69]-[70] some of the evidence of Dr Adam Walker and Benn McLean is referred to.

[132] Reasons, [130]-[137], noting that [133]-[137] are misnumbered [40]-[44].

[133] Reasons, [15]. I think the reference in the Principal Member's decision to the year 1981 is a typographical error, given the reported age of the deceased and his birth date in the admission records in the first respondent's Reply at pp 824-830.

[134] First respondent's Reply, p 824.

[135] In the hospital records this is stated to be "up to 10 schooners/beer/day": see first respondent's Reply, p 826. This is close to fifteen standard drinks a day.

[138] Reasons, [20]-[21]; ARDW, p 183.

[147] Reasons, [32]-[42], [44]-[47], [50]-[52], [55]-[56], [61], [63]-[65], [68], [73], [78], [81], [109], [114].

[158] ARDW, p 351 and first respondent's Reply, p 64.

[162] First respondent's Reply, p 493.

[164] 'Dr George' is mentioned here in the reasons, which I take to be an incorrect reference to the deceased.

[165] Reasons, [63]; first respondent's Reply, p 504.

[167] Reasons, [68]; first respondent's Reply, p 51.

[170] Reasons, [43]; first respondent's Reply, p 446.

[171] Reasons, [48]; first respondent's Reply, p 60.

[172] Reasons, [49]; first respondent's Reply, p 59.

[176] Reasons, [56]; first respondent's Reply, p 35.

[177] Reasons, [57]; first respondent's Reply, p 54.

[178] Reasons, [58]; first respondent's Reply, p 503.

[180] Reasons, [60]; first respondent's Reply, p 53.

[181] Reasons, [62]; first respondent's Reply, p 52.

[182] First respondent's Reply, p 504.

[184] Reasons, [66]-[67]; ARDW, pp 29, 33.

[186] Incorrectly numbered [41] and [42].

[192] Reasons, [103]; Ambulance records p 41.

[196] Reasons, [77]; Ambulance records, p 59.

[197] Reasons, [78]-[81]; ARDW, pp 19-20; first respondent's Reply, p 508.

[198] First respondent's Reply, p 517.

[199] Reasons, [82]; first respondent's Reply, p 520.

[214] Reasons, [101], [105], [108].

[215] Reasons, [102]-[104]; T 41.23.

[218] It is unclear whether this refers to the clinical notes in the first respondent's Reply, p 49, or the report not provided by Dr Selim.

[223] Reasons, [109], [124], the basis being the evidence summarised at [109] and [114].

[240] Reasons, [130], [136], misnumbered [43].

[242] Reasons, [136], misnumbered [43].

[243] Reasons, [134], misnumbered [41].

[244] Reasons, [135], misnumbered [42].

[245] Reasons, [125]-[128], [131]-[132].

[247] Appellant's submissions, 11 July 2025, [8].

[248] Appellant's submissions, 11 July 2025, [9]-[13].

[249] Appellant's submissions, 11 July 2025, [14].

[250] Appellant's submissions, 11 July 2025, [17].

[251] (1994) 35 NSWLR 452 (Kooragang).

[252] Appellant's submissions, 11 July 2025, [20]-[22].

[253] Appellant's submissions, 11 July 2025, [24].

[254] Appellant's submissions, 11 July 2025, [26], citing Seltsam v McGuinness [2000] NSWCA 29 (Seltsam) and Murray v Shillingsworth [2006] NSWCA 367; 4 DDCR 313 (Murray).

[255] Appellant's submissions, 11 July 2025, [28].

[256] Appellant's submissions, 11 July 2025, [28].

[257] Appellant's submissions, 11 July 2025, [29].

[258] Appellant's submissions, 11 July 2025, [29].

[259] Appellant's submissions, 11 July 2025, [30].

[260] Second respondent's submissions, 11 August 2025, [11]-[14], p 3, erroneously numbered as a second [12].

[261] Second respondent's submissions, 11 August 2025, [15]-[19], p 3, erroneously numbered [13]-[17].

[262] Second respondent's submissions, 11 August 2025, [20], p 4, erroneously numbered [18].

[263] Second respondent's submissions, 11 August 2025, [21], p 4, erroneously numbered [19].

[264] Second respondent's submissions, 11 August 2025, [22], p 4, erroneously numbered [20].

[265] Second respondent's submissions, 11 August 2025, [23], p 4, erroneously numbered as a third [12].

[266] [1970] 2 NSWLR 238 (Bes), 241, per Herron CJ.

[267] Second respondent's submissions, 11 August 2025, [23], p 4, erroneously numbered as a third [13].

[268] (2000) 49 NSWLR 262 (McGuiness), 296, [934] per Spigelman CJ.

[269] Second respondent's submissions, 11 August 2025, [25], p 4, erroneously numbered as a second [14].

[270] [1975] 2 NSWLR 190 (Fernandez), [197] per Glass JA.

[271] Second respondent's submissions, 11 August 2025, [26], p 5, erroneously numbered as a second [15].

[272] (1930) 144 LT 194 (Jones), 197.

[273] [1956] HCA 25; (1956) 94 CLR 470 (Holloway), 480-481.

[274] Second respondent's submissions, 11 August 2025, [27], p 5, erroneously numbered as a second [16].

[275] Second respondent's submissions, 11 August 2025, [28], p 5, erroneously numbered as a second [17].

[276] Second respondent's submissions, 11 August 2025, [29]-[31], p 5, erroneously numbered [21]-[23].

[277] Second respondent's submissions, 11 August 2025, [32], p 5, erroneously numbered [24].

[278] First respondent's submissions, 21 August 2025, [11].

[280] First respondent's submissions, 21 August 2025, [12].

[281] First respondent's submissions, 2 August 2025, [13]-[14].

[282] (1991) 24 NSWLR 156.

[283] (1997) 48 NSWLR 430.

[284] First respondent's submissions, 21 August 2025, [15]-[17].

[285] First respondent's submissions, 21 August 2025, [20]-[22].

[286] First respondent's submissions, 21 August 2025, [21]-[23], [27]-[29].

[287] First respondent's submissions, 21 August 2025, [24], [26].

[288] [2021] NSWPICPD 2 (Ly), [46].

[289] [2009] NSWCA 15; (2009) 74 NSWLR 419 (Strinic).

[290] First respondent's submissions, 21 August 2025, [25].

[291] First respondent's submissions, 21 August 2025, [32], [33].

[292] First respondent's submissions, 21 August 2025, [34].

[293] First respondent's submissions, 21 August 2025, [36].

[294] First respondent's submissions, 21 August 2025, [34].

[295] First respondent's submissions, 21 August 2025, [35].

[296] First respondent's submissions, 21 August 2025, [36].

[297] First respondent's submissions, 21 August 2025, [34].

[298] First respondent's submissions, 21 August 2025, [37].

[299] First respondent's submissions, 21 August 2025, [38].

[300] First respondent's submissions, 21 August 2025, [38].

[301] First respondent's submissions, 21 August 2025, [39].

[302] First respondent's submissions, 21 August 2025, [41].

[303] [2025] NSWPICPD 63.

[304] [2025] NSWCA 157 (Culhana).

[305] [2011] NSWWCCPD 25 (Raulston).

[307] Rule 34 of the Personal Injury Commission Rules 2021; Procedural Direction PIC1, [38].

[308] [2025] NSWPICPD 61.

[309] [2006] NSWCA 282.

[310] [2002] HCA 22; 209 CLR 478, [7].

[311] [2008] NSWCA 197; 6 DDCR 561.

[312] [2024] NSWPICPD 25, [27], [28].

[313] [2025] NSWPICPD 25, [53], [54].

[314] [2025] NSWPICPD 67, [101].

[315] [2024] NSWPICPD 61, [95].

[316] [2023] NSWPICPD 7, [143].

[317] [2023] NSWPICPD 3, [135].

[318] [2025] NSWCA 229, [74]-[77].

[319] [2024] NSWCA 32; 114 NSWLR 1v Nonconformist) at [50], Kirk JA (Meagher JA and Simpson AJA agreeing).

[320] [2025] NSWCA 157.

[321] [2025] NSWPICPD 83.

[325] Incorrectly numbered [41] and [42].

[326] [2025] NSWPICPD 6.

[328] Aluminium Louvres & Ceilings Pty Ltd v Xue Qin Zheng [2006] NSWCA 34 (Aluminium Louvres), [37].

[329] New South Wales Police Force v Winter [2011] NSWCA 330; 10 DDCR 69 (Winter), from [81].

[330] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; DDCR 421 (Edmonds), [91].

[332] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (SZBEL), [48].

[333] Hornsby Shire Council v Salman [2024] NSWCA 155, [91], per Adamson JA (White JA agreeing).

[337] Aluminium Louvres, [20]; Edmonds, [55]; Winter, [78].

[338] Aluminium Louvres, [25]; Winter, [79].

[341] 3D Scaffolding Pty Ltd v Commissioner of Taxation [2009] FCAFC 75, [25]; Winter, [85].

[343] Appellant's submissions, 11 July 2025, [9]-[13].

[344] Appellant's submissions, 11 July 2025, [14].

[345] Appellant's submissions, 11 July 2025, [20]-[22], citing Kooragang; second respondent's submissions, 11 August 2025, [21], p 4, erroneously numbered [19].

[346] Appellant's submissions, 11 July 2025, [24].

[347] Appellant's submissions, 11 July 2025, [20]-[22].

[348] Second respondent's submissions, 11 August 2025, [22], p 4, erroneously numbered [20].

[349] Appellant's submissions, 11 July 2025, [24].

[350] First respondent's submissions, 21 August 2025, [13]-[14].

[351] First respondent's submissions, 21 August 2025, [12].

[352] First respondent's submissions, 21 August 2025, [15]-[17].

[355] [2025] FCAFC 47.

[356] [1983] 3 NSWLR 117.

[357] (1994) 35 NSWLR 452 (Kooragang)

[358] (1996) 39 NSWLR 87.

[359] [2009] NSWCA 323; 54 MVR 111.

[360] [1991] HCA 12; 171 CLR 506 (March v Stramare).

[361] [2019] NSWCA 321

[362] [2020] NSWWCCPD 63.

[363] [2006] NSWCA 358.

[364] Kirunda v State of New South Wales (No 4) [2018] NSWWCCPD 45, [136]; Pritchard v Nianah Pty Ltd [2025] NSWPIC 643, [180].

[365] See Tamworth Regional Council v Spicer [2025] NSWPICPD 82, [76], per Perry ADP; Bunnings Group Limited v Harrison [2025] NSWPICPD 74, [62], per Wood DP; Secretary, Department of Family and Community Services v Colleen Jones by Executor of her Estate Carol Hewston [2016] NSWWCCPD 63, per Snell DP at [36]-[40].

[366] [1996] HCA 31; 187 CLR 310.

[369] First respondent's Reply, p 118.

[370] First respondent's Reply, p 116.

[371] First respondent's Reply, p 107.

[372] First respondent's Reply, pp 46-47.

[374] First respondent's Reply, pp 46-47.

[375] Appellant submissions, 11 July 2025, [26], citing Seltsam and Murray.

[376] Second respondent's submissions, 11 August 2025, [28] p 5, erroneously numbered as a second [17].

[377] Second respondent's submissions, 11 August 2025, [23] p 4, erroneously numbered as a third [12].

[379] First respondent's submissions, 21 August 2025, [20]-[22].

[380] First respondent's submissions, 21 August 2025, [21]-[23], [27]-[29].

[381] First respondent's submissions, 21 August 2025, [24], [26].

[382] Second respondent's submissions, 11 August 2025, p 4, [23], erroneously numbered a third [13].

[383] Second respondent's submissions, 11 August 2025, p 4, [25], erroneously numbered a second [14].

[384] Second respondent's submissions, 11 August 2025, p 5, [26], erroneously numbered a second [15].

[385] Second respondent's submissions, 11 August 2025, p 5, [27], erroneously numbered a second [16].

[386] Culhana, [91] per Leeming JA.

[387] First respondent's Reply, pp 4-7.

[389] First respondent's Reply, pp 5, 14.

[393] [2019] NSWCA 146, [33].

[394] Reasons, [96], first sentence.