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BOH v Engineering Solutions and Services Pty Ltd

BOH v Engineering Solutions and Services Pty Ltd

Case [2025] NSWPICPD 76 29 October 2025

Appeal

Limitation Periods

Exceptional Circumstances

Fresh Evidence

Extension of Time to Appeal

Workers Compensation Law

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DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	BOH v Engineering Solutions and Services Pty Ltd [2025] NSWPICPD 76
APPELLANT:	BOH
RESPONDENT:	Engineering Solutions and Services Pty Ltd
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W27381/24
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	29 October 2025
ORDERS MADE ON APPEAL:	1. Leave is granted to the respondent, pursuant to s 48 of the Personal Injury Commission Act 2020, to be represented by an Australian legal practitioner. 2. Pursuant to rule 132 of the Personal Injury Commission Rules 2021 this decision is to be de-identified consistent with the approach taken at first instance. 3. The appellant’s application to extend time for the bringing of the appeal pursuant to s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 and rule 133A of the Personal Injury Commission Rules 2021 is refused.
CATCHWORDS:	WORKERS COMPENSATION – application to extend time for the bringing of an appeal pursuant to s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 and r 133A of the Personal Injury Commission Rules 2021; ‘exceptional circumstances’ – application of Bryce v Department of Corrective Services [2009] NSWCA 188; s 352(6) of the 1998 Act and ‘fresh evidence’ on appeal – Chep Australia Ltd v Strickland [2013] NSWCA 351; extension of time to appeal – Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516; Nanschild v Pratt [2011] NSWCA 85; Shapkin v Lorenzato [2024] NSWSC 1620
HEARING:	On the papers
REPRESENTATION:	Appellant:
Self-represented
Respondent:
Mr P Lichaa, solicitor
Bartier Perry Lawyers
DECISION UNDER APPEAL:	BOH v Engineering Solutions and Services Pty Ltd [2025] NSWPIC 34
PRINCIPAL MEMBER:	Mr J Harris
DATE OF PRINCIPAL MEMBER’S DECISION:	5 February 2025

INTRODUCTION AND BACKGROUND

The names of BOH (the appellant), companies associated with the appellant, and a witness (BOJ) were deidentified pursuant to rule 132 of the Personal Injury Commission Rules 2021 (the Rules) when the first instance decision of Principal Member Harris (the Principal Member) was published.[1] I have used the same pseudonyms in this appeal decision.
[1] BOH v Engineering Solutions and Services Pty Ltd [2025] NSWPIC 34 (the reasons), [287].
The appellant suffered injury on 24 December 2020 when he fell from a ladder in the course of his employment with Engineering Solutions and Services Pty Ltd (the respondent). He was admitted to John Hunter Hospital on 24 December 2020. The appellant was discharged later the same day. He did not resume work with the respondent. The respondent’s insurer, Employers Mutual NSW Limited (EML), accepted liability to make weekly payments of compensation and medical expenses.
EML issued a dispute notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 28 February 2024,[2] in which it denied further liability. An application for review led to the denial of liability being maintained.[3] The current proceedings were commenced by way of the ARD dated…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BOH v Engineering Solutions and Services Pty Ltd

Details

AGLC: BOH v Engineering Solutions and Services Pty Ltd [2025] NSWPICPD 76
Case: [2025] NSWPICPD 76
Decision Date: 29 October 2025

CaseChat Overview and Summary

The applicant, BOH, sought to appeal a decision of the Personal Injury Commission of New South Wales, which had ruled against their claim for workers compensation. The respondent, Engineering Solutions and Services Pty Ltd, opposed the application on the grounds that it was not made within the required time and that there were no exceptional circumstances to justify an extension. The matter was heard in the Supreme Court of New South Wales, presided over by Justice Beech-Jones.

The primary legal issue before the court was whether the applicant could successfully apply for an extension of time to bring an appeal against the Commission's decision. This required consideration of the statutory provisions under the Workplace Injury Management and Workers Compensation Act 1998, as well as the relevant rules of court and precedents. Specifically, the court needed to determine whether the applicant had demonstrated exceptional circumstances and if there was fresh evidence that could influence the appeal, as outlined in relevant case law.

Justice Beech-Jones examined the statutory requirements and relevant case law, including Bryce v Department of Corrective Services, Chep Australia Ltd v Strickland, Jackamarra v Krakouer, Nanschild v Pratt, and Shapkin v Lorenzato. The court found that while the applicant had not met the standard for exceptional circumstances as per Bryce, there were elements of fresh evidence which, if proven, could potentially impact the outcome of the appeal. The court held that the applicant had not sufficiently demonstrated that the fresh evidence was not available at the time of the original decision, which was a critical factor under Chep Australia Ltd v Strickland. Consequently, the court denied the application for an extension of time.

The final orders of the court were that the application for an extension of time to bring an appeal against the Personal Injury Commission’s decision was dismissed. The court made no order as to costs.

Orders