E B Murray Family Investments Pty Ltd t/as Bede Murray Racing Stables v Howard

1. [1]

   THE COURT: The appellant, E B Murray Family Investments Pty Ltd t/as Bede Murray Racing Stables (the employer), appealed to this Court pursuant to s 353(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 1998 Act) from a decision of the Personal Injury Commission (PIC) given by Deputy President Snell on 31 October 2024: E B Murray Family Investments Pty Ltd t/as Bede Murray Racing Stables v Howard [2024] NSWPICPD 70 (the Decision). The Decision determined an appeal from a certificate of determination given by Member Sweeney on 15 August 2023, who had found that the respondent, Jo-Anne Howard (the employee), lacked current working capacity: Howard v E B Murray Family Investments Pty Ltd t/as Bede Murray Racing Stables [2023] NSWPIC 410.

2. [2]

   The Deputy President was exercising jurisdiction pursuant to s 352(5) of the 1998 Act, which provides:

3. [3]

   As to the proper construction of that provision, the Deputy President referred at [38]-[40] to authority in this Court which bound him, including Northern NSW Local Health Network v Heggie [2013] NSWCA 255; Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54; (2020) 295 IR 172 and Iqbal v Hotel Operation Solutions Pty Ltd [2022] NSWCA 138. The effect of those decisions was that where the basis of the appeal pursuant to s 352(5) was error of fact, the authority of the Deputy President to intervene depended on establishing not merely a preference for a different view of the evidence but an error in the fact-finding exercise undertaken by the Member. Accordingly, it was not inappropriate to ask whether the findings of fact were “open” to the Member. That was the approach the Deputy President then applied in determining the appeal: see, eg, at [69], [70], [86] and especially [119].

4. [4]

   However, on 17 July 2025 (the day before the appeal in the present matter was listed for hearing), this Court (constituted by Bell CJ, Leeming, Kirk, McHugh and Free JJA) delivered judgment in State of New South Wales v Culhana [2025] NSWCA 157 (Culhana). The Court declined to follow the earlier authority to which the Deputy President had referred. Leeming JA, with whom the other members of the Court agreed, said as follows:

5. [5]

   On the same day, this Court drew the parties’ attention to Culhana and invited submissions as to its effect on the present appeal. At the hearing of the appeal, Mr Turnbull SC, who appeared with Mr Talintyre for the employer, sought leave to amend the notice of appeal and submitted that the appeal be allowed, the Decision ought be set aside, the matter be remitted to a different presidential member, and there be no order as to costs (with the intention that each party pay their own). Mr Del Monte who appeared for the employee sought time to consider his position. To that end, directions were made requiring an amended notice of appeal to be filed and requiring the parties to notify the Court of their position, whether joint or separate.

6. [6]

   The appeal to this Court is strictly limited by s 353(1) to a “point of law”. Grounds 1 to 5 in the employer’s original notice of appeal were all expressed in terms of a failure to find that Member Sweeney had failed to accord adequate weight to various matters. Those grounds did not articulate an error in point of law. Ground 6 alleged a failure to provide sufficient reasons, which does articulate a point of law: Fisher v Nonconformist Pty Ltd (2024) 114 NSWLR 1; [2024] NSWCA 32 at [53]-[55] (Kirk JA, Meagher JA and Simpson AJA agreeing).

7. [7]

   On 21 July 2025, the employer filed an amended notice of appeal which added the following ground, which articulates an error in point of law. We take this ground to be the only relevant ground, having regard to Culhana:

8. [8]

   Subsequently, the parties filed short minutes of order in which they jointly proposed the following orders:

9. [9]

   Having regard to what is proposed – the setting aside of a decision made under a statute – it is necessary for this Court to satisfy itself that it is appropriate that the orders agreed to by the parties be made.

10. [10]

    The effect of Culhana is that the Deputy President (although bound at the time by the authority which he applied) erred in point of law in adopting the approach that he did to his function on the appeal pursuant to s 352. The orders proposed by the parties indicate that it is common ground that the error was material. There are several references throughout the reasons for the Decision to particular findings being “open to” the Member. In these circumstances, we accept the parties’ joint position as to materiality.

Costs

1. [11]

   We accept that it is appropriate, in the circumstances of the present case, for this Court to accept the parties’ proposal that there be no order as to costs.

Orders

1. [12]

   For the reasons given above, we make the following orders:

   1. (1)

      Allow the appeal.

   2. (2)

      Set aside the decision of Deputy President Snell given on 31 October 2024 confirming the Certificate of Determination dated 15 August 2023.

   3. (3)

      Remit the matter to the Personal Injury Commission for determination in accordance with law by a presidential member other than Deputy President Snell.

   4. (4)

      Make no order as to costs in this Court.