State of New South Wales v Culhana

1. [1]

   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.

2. [2]

   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.

Overview

1. [3]

   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.

2. [4]

   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.

3. [5]

   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.

4. [6]

   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.

Factual background

1. [7]

   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.

2. [8]

   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.

3. [9]

   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.

4. [10]

   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.

5. [11]

   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.

6. [12]

   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.

7. [13]

   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”.

8. [14]

   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:

9. [15]

   Unfortunately, this decision was not cited to the member, despite the superabundance of representation.

10. [16]

    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.

11. [17]

    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 Insurer v Hill [2020] NSWCA 54; 295 IR 172 at [20], which shall be addressed below.

12. [18]

    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].

13. [19]

    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.

14. [20]

    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 should be dismissed

1. [21]

   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.

2. [22]

   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.

3. [23]

   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:

4. [24]

   Three months later, after a biopsy confirmed adenocarcinoma, Dr Kumar said:

5. [25]

   Professor Pavlakis gave the opinion that:

6. [26]

   Dr Pollard, a treating general practitioner, referred to the deceased’s increased alcohol consumption following his diagnosis with PTSD and stated:

7. [27]

   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.

8. [28]

   This ground should be dismissed.

Ground 1

1. [29]

   Since the enactment of the WIM Act, s 352 has conferred a right of appeal from certain decisions to a Presidential member. Formerly, this was from decisions of the Workers Compensation Commission constituted by an Arbitrator; now it is from decisions of the Personal Injury Commission constituted by a member, but nothing turns on that.

2. [30]

   Prior to 2011, s 352(5) provided “[a]n appeal under this section is to be by way of review of the decision appealed against”. By amendments introduced with effect from February 2011, the appeal ceased to be by way of review. Section 352(5) now relevantly provides:

3. [31]

   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.

   1. (1)

      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.

   2. (2)

      The amended provision also now provides that the appeal is not a “new hearing”. I shall return to what that term means.

   3. (3)

      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).

4. [32]

   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.

5. [33]

   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.

6. [34]

   Prior to those amendments, a series of decisions of this Court had drawn attention to the right of appeal conferred by s 352(5) being “by way of review”, and contrasted that with an appeal which was only available if error had been identified. In Tan v National Australia Bank Ltd [2008] NSWCA 198; 6 DDCR 363 at [12], Basten JA, with whom Bell JA agreed, said:

7. [35]

   However, Young CJ in Eq said at [60]:

8. [36]

   Subsequently, in Sapina v Coles Myer Ltd [2009] NSWCA 71; 7 DDCR 54, the joint judgment of Allsop P and Hoeben JA, with whom Beazley JA agreed, referred to Tan and other cases, and said at [53] that “[t]his approach of Young CJ in Eq was, as a statement of the task of the Presidential member, with respect, wrong”. Allsop P and Hoeben JA articulated the approach to be adopted by Presidential members in the appeal by way of review under s 352(5) as it then stood at [57]:

9. [37]

   There is no doubt that Parliament intended to narrow the right of appeal as a consequence of what had been held in the decisions mentioned above. That is clear not merely from the similarity between Young CJ’s statement of the operation of former s 352(5) which was disapproved in Sapina and the language of new s 352(5). It is also clear from the extrinsic materials. The Second Reading Speech accompanying the Workers Compensation Legislation Amendment Act 2010 (NSW) included:

10. [38]

    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”.

11. [39]

    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].

12. [40]

    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.

13. [41]

    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]:

14. [42]

    Shortly thereafter, the joint judgment in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 at [13] stated:

15. [43]

    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”.

16. [44]

    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:

17. [45]

    Although the text of the bill had been drafted before Kostas was delivered, nonetheless, it was plain from at least Allesch v Maunz and Coal and Allied Operations Pty Ltd that the words used in s 352(5) invoked the incidents of the most familiar appeal in the legal system, namely, the appeal by way of rehearing. In most appeals by way of rehearing, it necessary to identify an “error of fact, law or discretion”. Such appeals are not, to use the traditional language used by the High Court in those decisions, appeals de novo. Section 352(5) does not say that the appeal is not an appeal de novo but instead provides that it is not a review or “new hearing”. Contemporary New South Wales legislation tends not to use Latin. Indeed the valuable document published by the NSW Parliamentary Counsel’s Office, PCO Standard: A guide to drafting principles for NSW legislation, states at section 1.3:

18. [46]

    It is not difficult to infer that the words “new hearing” were used as a replacement for “hearing de novo” (although one may be critical of the accuracy of the translation; “afresh”, or “from the beginning” might better capture the literal and legal meaning of the traditional term). That inference is strengthened by the fact that the right of appeal to this Court from “profession decisions” of NCAT involving legal practitioners in cl 29(4) of Schedule 5 of the Civil and Administrative Tribunal Act 2013 (NSW) is expressed as follows:

19. [47]

    At least in that instance, the Legislature made it clear beyond argument that “new hearing” was an English synonym for “hearing de novo”.

20. [48]

    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.

Raulston v Toll Pty Ltd

1. [49]

   Shortly after those amendments took effect, the Workers Compensation Commission constituted by Deputy President Roche considered their effect in Raulston v Toll Pty Ltd, delivered on 17 May 2011. The Deputy President identified at [16]-[31] nine “general principles” concerning the operation of the amended s 352. Of these, the first was the most elaborate, expressed as follows:

2. [50]

   The fifth and sixth are related, and were as follows:

3. [51]

   No exception was taken to the fifth and sixth points. They make it clear that the Deputy President was alert to Fox v Percy (2003) 214 CLR 118; [2003] HCA 22. However, the State contended that the first general principle was wrong. In order to explain why I would accept that submission, it is necessary to return to what was held in Warren v Coombes and confirmed in Fox v Percy.

Warren v Coombes

1. [52]

   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.

2. [53]

   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.

3. [54]

   The joint judgment at 537 identified the “important question”, namely:

4. [55]

   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.

5. [56]

   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.

6. [57]

   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:

7. [58]

   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.

8. [59]

   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.

9. [60]

   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:

10. [61]

    The joint judgment then proceeded to disapprove of the approach adopted by Windeyer J.

11. [62]

    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:

12. [63]

    In Fox v Percy at [25] the joint judgment said:

13. [64]

    It is unnecessary to be exhaustive. It suffices to note two recent statements by joint reasons for judgment. Most recently, in KMD v CEO (Department of Health NT) [2025] HCA 4; 99 ALJR 474 at [21], the joint judgment said that “the appellate court determines for itself the correct outcome on the relevant issue while making due allowance for such advantages as may have been enjoyed by the primary judge”. The joint judgment of the High Court constituted by five judges in Steven Moore (a pseudonym) v The King [2024] HCA 30; 98 ALJR 1119 at [14] said, by reference to Warren v Coombes, that:

14. [65]

    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.

15. [66]

    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:

16. [67]

    It will be recalled that in articulating the “first general principle” in Raulston the Deputy President cited extensively from the reasons of Allsop J in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [28]. However, earlier in the same paragraph Allsop J succinctly summarised the history recounted above:

17. [68]

    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”.

18. [69]

    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.

Decisions of this Court applying the approach in Raulston

1. [70]

   The first respondent identified decisions of this Court which have endorsed or at least applied the reasons in Raulston.

   1. (1)

      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.

   2. (2)

      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.

   3. (3)

      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.

   4. (4)

      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”.

2. [71]

   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]:

3. [72]

   Importantly for present purposes, Basten JA considered the distinction which is central to the State’s submission at [20]-[22]:

4. [73]

   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].

5. [74]

   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.

Whiteley Muir & Zwanenberg Ltd v Kerr does not apply to s 352(5)

1. [75]

   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.

2. [76]

   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.

3. [77]

   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).

4. [78]

   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.

5. [79]

   Why should s 352(5) be construed in accordance with a long-since deprecated approach? Many considerations point against doing so.

6. [80]

   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.

7. [81]

   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”.

8. [82]

   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”.

9. [83]

   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.

10. [84]

    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.

11. [85]

    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.

12. [86]

    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:

13. [87]

    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.

14. [88]

    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).

15. [89]

    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.

Conclusions

1. [90]

   The appeal should be allowed on the first ground.

2. [91]

   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.

3. [92]

   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.

4. [93]

   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 Nominal 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.

5. [94]

   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).

6. [95]

   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.

7. [96]

   I propose the following orders:

8. [97]

   KIRK JA: I agree with Leeming JA.

9. [98]

   McHUGH JA: I agree with Leeming JA.

10. [99]

    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.