City of Canada Bay Council v Nylund
[2025] NSWPICPD 75
•28 October 2025
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | City of Canada Bay Council v Nylund [2025] NSWPICPD 75 |
APPELLANT: | City of Canada Bay Council |
RESPONDENT: | Lindsay Edwin Nylund |
INSURER: | StateCover Mutual Ltd |
FILE NUMBER: | A1-W3774/25 |
PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
DATE OF APPEAL DECISION: | 28 October 2025 |
ORDERS MADE ON APPEAL: | 1. The appellant’s application for leave to bring this appeal pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 is refused. |
CATCHWORDS: | WORKERS COMPENSATION – Leave to bring an interlocutory appeal pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998; Licul v Corney [1976] HCA 6; 180 CLR 213; the ‘guiding principle in s 42 of the Personal Injury Commission Act 2020; the monetary threshold in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 – application of Grimson v Integral Energy [2003] NSWWCCPD 29; Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 39; 148 CLR 170 – appeal on matters of practice and procedure |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr P Perry, counsel | |
| Hicksons Lawyers | |
| Respondent: | |
| Mr J Dodd, counsel | |
| Marsdens Law Group | |
DECISION UNDER APPEAL: | Nylund v City of Canada Bay Council (W3774/25, 11 August 2025) |
MEMBER: | Mr J Turner |
DATE OF MEMBER’S DECISION: | 11 August 2025 |
INTRODUCTION AND BACKGROUND
Lindsay Nylund (the worker/respondent) worked with the City of Canada Bay Council (the Council/appellant) as a gymnastics coach from June 2020. From 26 October 2020 he had the role of Sports Program Team Leader, which involved managing the gymnastic coaching program at Five Dock Leisure Centre and the supervision of approximately 25 coaching staff. The worker had extensive achievements in gymnastics and coaching.[1] The worker claimed lump sum compensation in respect of 22 per cent whole person impairment for a psychological injury,[2] expressed to result from personal injury and disease injury in the alternative. The Council’s insurer, StateCover, disputed liability relying on s 11A of the Workers Compensation Act 1987 (the 1987 Act) and additionally denying the worker suffered from relevant incapacity.[3] The pleaded injury relies on the actions of the Council from 1 August 2022 to 19 May 2023, with a deemed date of 19 May 2023.
[1] Worker’s statement 28/9/23, [13]–[14], Application to Resolve a Dispute (ARD), pp 66–7.
[2] Marsdens letter 16/5/24, ARD p 334.
[3] ARD, pp 337–351.
The matter was listed for hearing before Member Turner on 24 July 2025. Mr Dodd appeared for the worker and Mr P Perry appeared for the Council. The Member dealt with applications for leave to lodge additional documents, dated 15 July 2025 (on the worker’s part) and 24 April 2025, 8 July 2025 and 18 July 2025 (on the Council’s part).
The Member dealt with the contested admission of the worker’s Application dated 15 July 2025 (the contested Application) in an interlocutory written decision dated 11 August 2025.[4]
[4] Certificate of Determination and reasons, 11/8/25 (reasons).
THE INTERLOCUTORY DECISION UNDER APPEAL
The Member noted the contested Application consisted of a statement from the worker dated 15 July 2025 together with the following annexures:
(a) Gymnastics Australia Complaints, Disputes and Discipline Policy;
(b) Workplace Behavioural Standards and Expectations Policy;
(c) Email from [redacted] providing prior written consent for [redacted];
(d) Email from [redacted] providing prior written consent for [redacted], and
(e) Local Government State Award.
The Member said the worker responded to statements by a number of people. The Member referred to the Council’s submission that there was no reason why the material in the contested Application could not have been served previously. [5]
[5] Reasons, [6]–[7], [10]–[12].
The Member, at [13] of the reasons, dealt with the Council’s objections to multiple paragraphs of the worker’s statement dated 3 April 2025. The Member noted there were over 2,000 pages of evidence in the matter, riddled with references to policies and alleged breaches of policy. The Member by and large rejected the multiple objections taken by the Council. This earlier statement is not that at issue in the interlocutory appeal before me.
The Member referred to r 67C(4) of the Personal Commission Rules 2021 (the Rules), pursuant to which leave could be given for the admission of a document if it was “necessary to facilitate the just, quick and cost effective resolution of the real issues in the proceedings”. The Member said the Application was “on the whole relevant to the matters in dispute”. He said the documents did not “raise any new issues nor diverge from the existing evidence such that the [Council] has not had the opportunity to previously consider and investigate”. He concluded:
“… the [Council] would not be prejudiced by the admission of the additional documents into evidence and that it is in the interests of a just, quick and cost effective resolution of the matter that the documents be admitted into evidence.”
The Member admitted the contested Application.[6]
[6] Reasons, [14]–[16].
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THE LEGISLATIVE PROVISIONS
Section 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(3) There is no appeal under this section unless the amount of compensation at issue on the appeal is both—
(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.”
Section 352(4) of the 1998 Act provides:
“(4) The appeal must be made within—
(a) 28 days after the decision appealed against is made, or
(b)a longer period determined or allowed, whether generally or for the kind of proceedings, in accordance with the Commission rules.”
Section 352(3A) of the 1998 Act provides:
“(3A) There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
Rule 67C of the Rules relevantly provides:
“(3) An additional document may also be introduced in applicable proceedings by a party—
(a) if—
(i) the party applies to the appropriate decision-maker for leave to introduce the document, and
(ii) the document complies with rule 67(1) and is served and lodged in accordance with subrule (1), and
(iii) the appropriate decision-maker gives leave, or
(b) if the appropriate decision-maker otherwise gives leave on the application of the party.
(4) The appropriate decision-maker may give leave if satisfied the introduction of the document is necessary to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.”
Section 42 of the 2020 Act provides:
“42 Guiding principle to be applied to practice and procedure
(1) The guiding principle for this Act and the Commission rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.
(2) The Commission must seek to give effect to the guiding principle when it—
(a) exercises any power given to it by this Act or the Commission rules, or
(b) interprets any provision of this Act or the Commission rules.
(3) Each of the following persons is under a duty to co-operate with the Commission to give effect to the guiding principle and, for that purpose, to participate in the processes of the Commission and to comply with directions and orders of the Commission—
(a) a party to proceedings in the Commission,
(b) an Australian legal practitioner or other person who is representing a party in proceedings in the Commission.
(4) In addition, the practice and procedure of the Commission should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Commission is proportionate to the importance and complexity of the subject-matter of the proceedings.
(5) However, nothing in this section requires or permits the Commission to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.”
Rule 73 of the Rules provides:
“73 Guiding principles for applicable proceedings
The appropriate decision-maker for applicable proceedings must, when informing itself or themselves on any matter in the proceedings, have regard to the following principles—
(a) evidence should be logical and probative,
(b) evidence should be relevant to the facts in issue and the issues in dispute,
(c) evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d) unqualified opinions are unacceptable.”
THRESHOLD MATTERS
The worker disputes that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
Was the appeal within time?
Worker’s submissions
The worker disputes that the appeal was filed within time. The worker submits time to file this interlocutory appeal expired on 8 September 2025. The Council attempted to file an appeal on that day however it was rejected by a Delegate of the President as it was not procedurally compliant. The worker submits a further attempt to file the appeal on 9 September 2025 failed as the Council did not comply with procedural directions. The Council’s Application to Appeal was successfully registered on 10 September 2025, although it did not contain an application for leave to appeal out of time, or submissions in compliance with s 133A, contrary to earlier correspondence from the Delegate of the President. The worker submits this appeal should be dismissed due to its non-compliance with s 352(4) of the 1998 Act.[7]
[7] Worker’s submissions, [15]–[18].
Council’s submissions
The Council disputes the worker’s version of events leading to registration of the appeal. It submits the appeal was filed on 8 September 2025, within time, although the appeal did not achieve “full technical compliance with the Commission’s requirements”. It submits an email from the Commission dated 9 September 2025 gave it until 5 pm on 10 September 2025 to file and relodge the appeal or it would be rejected. The Council submits it lodged amended submissions on 10 September 2025 which were accepted and sealed on that date. It disputes that the appeal was not made within time.[8]
[8] Council’s submissions in reply, [6].
Consideration
The delegate of the President wrote to the Council’s solicitors on 8 September 2025. The letter stated that the Appeal Application lodged on that date “has been rejected”. It gave reasons that referred to Procedural Direction WC3:
(a) the appeal did not address each ground separately;
(b) it did not include submissions on the monetary threshold;
(c) it did not include a list of authorities, and
(d) it did not attach a chronology.
The letter informed the Council that it “may lodge a fresh appeal application that complies with Procedural Direction WC3”. The Commission’s records indicate the appeal was relodged, with amendment, on 8 September 2025 at 3.55 pm, within time. The Commission did not reject the appeal. By email it requested that the Council lodge submissions by 5 pm on 10 September 2025 addressing each ground of appeal separately. The Commission informed the Council that failure to lodge compliant amended submissions may result in the appeal being rejected. This process was consistent with the operation of cl 10 of Procedural Direction WC3. Amended submissions were lodged. The appeal was registered on 10 September 2025. The date of registration is not necessarily the date of lodgement.
The above sequence of events is consistent with the Council’s submissions. The appeal was lodged on 8 September 2025 at 3.55 pm. It was within time.
Was the monetary threshold satisfied?
The worker refers to the monetary requirements in s 352(3) of the 1998 Act. What is at issue on this appeal is the admission of additional documentary evidence. The worker submits a decision on whether the monetary threshold in s 352(3) is satisfied would be “entirely speculative”, an issue that is not assisted by any submissions from the Council.
The decision of Fleming DP in Grimson v Integral Energy[9] has been applied over many years in the Personal Injury Commission of New South Wales, and before that in the Workers Compensation Commission of New South Wales, in dealing with whether thresholds in s 352(3) are satisfied. In that decision the Deputy President said:
“The amount of compensation at issue on the appeal must be determined by reference to the amount of compensation at issue in the proceedings before the [Member] at first instance.”[10]
And:
The ‘... amount of compensation at issue on the appeal’ is determined by reference to the amount of any monetary award made by the [Member] or, where no monetary award is made, the amount of the claim as particularised by the Applicant.”[11]
[9] [2003] NSWWCCPD 29 (Grimson).
[10] Grimson, [19].
[11] Grimson, [30].
In NSW Department of Education and Communities v Colefax Keating P referred to Grimson, his Honour saying the reasoning has been “consistently applied in the Commission”.[12] The sum particularised in the current proceedings is $63,080 by way of lump sum entitlement pursuant to s 66 of the 1987 Act. It follows that the threshold in s 352(3) of the 1998 Act is satisfied.
[12] [2012] NSWWCCPD 63, [24].
GROUNDS OF APPEAL
The Council raises the following grounds of appeal:
(a) “The [Member] erred in granting the [worker] leave to lodge additional documents following the [worker’s] application to do so dated 15 July 2025, in the absence of the [worker’s] failure to provide an explanation for the delay or any evidence of compliance with [rule] 67(3)(a). This was an error of law and an error of discretion.” (Ground No. 1)
(b) “The [M]ember erred in concluding that to permit the introduction of the evidence contained in the application was not prejudicial to the [Council]. This was an error of law.” (Ground No. 2)
(c) “The [M]ember erred by failing to deal with a key aspect of the [Council’s] submissions in relation to prejudice and, in doing so, committed an error of law and a constructive error of jurisdiction.” (Ground No. 3)
(d) “The [M]ember erred by failing to apply the principles outlined in clause 28 of [Procedural Direction] PIC 3 and in decisions such as Woolstar Pty Limited v Draper [2024] NSWPICPD 72, when making his determination on the admissibility of the late evidence from the [worker]. This was an error of law and an error of discretion. It also amounted to inadequacy of reasons.” (Ground No. 4)
COUNCIL’S SUBMISSIONS
Ground No. 1
The Council submits the Application at issue was filed and served by the worker on 15 July 2025, nine days prior to the hearing date and about nine weeks after statements from five of the Council’s six lay witnesses. It submits the further lay evidence was not presaged by the worker at the preliminary conference on 13 May 2025. It submits there was no explanation for this delay and no evidence that the documents were recently acquired by the worker. It submits admission of the late documents was erroneous and leave to appeal should be granted.[13]
[13] Council’s submissions, [6], [11]–[14], [16], [18], [20].
Ground No. 2
The Council submits Mr Male (the Council’s co-ordinator of people and culture)[14] was overseas and unavailable to respond to assertions about him in the worker’s statement dated 15 July 2025 (part of the disputed Application). The Council submits this statement of the worker referred to emails which the Council needed to verify and, if appropriate, place in context. It submits this prejudice was erroneously dismissed by the Member.[15]
[14] Mr Male’s statement 16/12/24, Reply part 2, p 255, [4].
[15] Council’s submissions, [21]–[22].
The Council refers to the Member’s reasons at subparagraphs (ii) and (ix) of paragraph [13]. The Member said the Council’s policies and alleged breaches of them were a matter for him, not the opinion of Mr Male.
The Council submits it had produced evidence that the worker was afforded procedural fairness which arguably established the reasonableness of its actions for the purposes of its s 11A defence. The Council’s submissions at [25] to [28] go more to the merits of this defence rather than to exercise of the Member’s discretion to admit the disputed Application.
The Council submits it was entitled to a reasonable opportunity to respond to allegations of its alleged breaches of its own policies and the industrial award, which went to the reasonableness of its actions. The Council submits it had obtained a supplementary statement from Mr Wolfe, the Council’s Director of Community, Culture and Leisure, which was served on the day of the earlier hearing. It had not been able to get further instructions from Mr Male (who was overseas) or Ms Rogic, Acting Manager People and Culture (who had a certificate from her general practitioner excusing her from giving oral evidence).[16]
[16] Council’s submissions, [29].
Ground No. 3
The Council submits the Member failed to deal with its submission that admission of the disputed Application caused it prejudice. It submits this involved “a constructive error of jurisdiction”. It refers to Cheers v Mid Coast Council.[17] It refers to the Member’s reasons at [15] where it was said that the additional evidence did “not raise any new issues nor diverge from the existing evidence”. It submits this was inconsistent with the submission it made in support of Ground No. 2.[18]
[17] [2024] NSWSC 1553 (Cheers), [34]–[39].
[18] Council’s submissions, [31]–[32].
Ground No. 4
The Council quotes from the decision of Woolstar Pty Ltd v Draper[19] in which Parker SC ADP dealt with the exercise of the discretion pursuant to r 67(4). The Council is critical of the Member’s reasons. The Council submits there has not been timely resolution of the dispute because the Member’s determination resulted in the current appeal being filed. (Acting Deputy President Parker referred to Procedural Direction PIC3 in its form as at 6 November 2024, the date of his decision in Draper. Procedural Direction PIC3 was subject to significant amendment as at 25 November 2024. The worker’s submissions refer to the amended Procedural Direction and submit the basis for admission of late documents thereafter is to be r 67C(4) of the Rules – “the just, quick and cost effective resolution of the real issues in the proceedings”, the test applied by the Member. The Council’s submissions, to the extent to which they rely on Draper and the Procedural Direction in its earlier form, must be treated with caution.)
[19] [2024] NSWPICPD 72 (Draper).
The Council submits the requirements of subrr 67(3) and (4) are not the subject of meaningful analysis by the Member. It submits the reasons for delay were not articulated by the worker. It submits the Member failed to act “according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”.[20]
WORKER’S SUBMISSIONS
[20] Council’s submissions, [35], quoting s 43(3) of the 2020 Act.
Ground No. 1
The worker submits the hearing would not have concluded on the date of hearing, 24 July 2025. There were 2,262 pages of evidence, plus possible evidence from lay witnesses on both sides. It submits the exercise of determining whether determination of the appeal on an interlocutory basis would affect the proper and effective determination of the dispute is “entirely speculative”.[21]
[21] Worker’s submissions, [6]–[13].
Regarding delay, the worker submits r 67C(1) required lodgement of its Application to Admit Late Documents by no later than three working days before the hearing. This it did. The worker submits there was no delay that required further explanation. Some of the documents had been previously provided.[22]
[22] Worker’s submissions, [33]–[38].
Ground No. 2
The worker submits the reference to the policies identified by Mr Male was not new and adjournment of the matter would in any event give the Council an opportunity to respond to the worker’s views regarding the Council’s policies. If Mr Male was overseas Ms Rogic was available on one hour’s notice on the hearing date, and other evidence could be adduced from the Council’s Human Resources Division.[23]
[23] Worker’s submissions, [40]–[42].
Ground No. 3
The worker submits the Council had already introduced its policies to justify the actions of its witnesses for the purpose of its defence based on s 11A of the 1987 Act. It submits the worker should now have an opportunity to adduce such evidence.
The worker submits the decision of Cheers is irrelevant to the issues in the current matter.[24]
[24] Worker’s submissions, [44]–[45].
Ground No. 4
The worker submits the Council’s submissions on 24 July 2025 did not refer to the decision of Draper. The worker submits the Council cannot now argue the Member erred in failing to refer to the decision in his reasons, when the Member’s attention was not directed to the case.
The worker refers to the amendment to Procedural Direction PIC3 on 25 November 2024. Rule 67C(4) is now the basis for admission of late documents. This was the relevant test at the time of the Member’s decision, he cited it at [14] of his reasons and applied it, there was no error of law. The worker refers to the use of the word ‘may’ in r 67C(4). The worker submits the principles in House v The King[25] are engaged. The worker submits none of the factors in House v The King are identified by the Council in seeking to impugn the Member’s decision.[26]
LEAVE PURSUANT TO S 352(3A) OF THE 1998 ACT
[25] [1936] HCA 40; 55 CLR 499 (House v The King).
[26] The worker’s submissions refer to Steven Moore v The King [2024] HCA 30.
The Council’s submissions
The Council’s submissions accompanying its appeal mentioned s 352(3A) and formally sought leave to bring the appeal.[27] They did not specifically address why the discretion to grant leave pursuant to s 352(3A) should be granted in the circumstances of the current matter.
[27] Council’s submissions, [1].
The worker’s submissions
The worker submitted the Commission should not grant leave in the circumstances and submitted the interlocutory appeal should be dismissed.[28] The worker submitted the Council’s appeal dealt only with the admission of the disputed Application which, in determining the case, would be considered with the other evidence. This other evidence involved the ARD lodged by the worker (350 pages), the Reply lodged by the Council (499 pages), and three Late Documents Applications lodged by the Council (24 April 2025 – 1,320 pages), 8 July 2025 (13 pages) and 18 July 2025 (72 pages). The worker was to be cross-examined and four other people (employees and ex-employees of the Council) had been required to give evidence. Submissions regarding the disputed Application were continuing at 3.32 pm on 24 July, 2025, the first hearing date. There was no way the hearing would complete that day. The worker submitted it would be impossible for the Member to form a view on whether the disputed application (139 pages) was necessary or desirable for the proper determination of the matter. This would require an assessment of the material filed or sought to be filed by both parties. The worker submitted “[w]hether determining this appeal on an interlocutory decision will affect the proper and effective determination of the dispute is entirely speculative”. It submitted a Presidential member could not form such an opinion.[29]
[28] Worker’s submissions, [6]
[29] Worker’s submissions, [8]–[13].
The Council’s submissions in reply
The Council submitted its original submissions identified multiple ways in which admission of the material, in the disputed Application, exposed it to “real prejudice”. It submitted the proper and effective determination of a dispute could not take place where a party is exposed to “real prejudice” through the admission of material, if one party was “under prejudice” and denied procedural fairness. It submitted that if the additional documents were admitted there could be no proper and effective determination of the dispute.[30]
[30] Council’s submissions in reply, [2]–[5].
Consideration of the leave issue
In Licul v Corney Gibbs J dealt with the test to establish whether a judgment was final or interlocutory, saying:
“The other view which, since Hall v Nominal Defendant should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties?”[31]
[31] [1976] HCA 6; 180 CLR 213, [11].
The above test has been frequently applied in the Commission, and in the former Workers Compensation Commission of New South Wales, over many years. The Member’s decision dealing with admission of the disputed Application was plainly interlocutory. The Council requires leave pursuant to s 352(3A) if its appeal is to proceed. The basis for consideration of whether leave is appropriate is whether exercise of the discretion is “necessary or desirable for the proper and effective determination of the dispute.” The Council’s appeal challenges the Member’s exercise of discretion in the admission of late documents. The Council has not challenged the worker’s observation going to the sheer bulk of material already lodged by the parties (see [43] above). The Council basically submits that admission of the disputed Application causes prejudice and denies it procedural fairness. This reflects its substantive arguments in the interlocutory appeal. It effectively argues that if it is entitled to succeed in the appeal on its substantive grounds then leave should be granted.
In Collingridge v IAMA Agribusiness Pty Ltd[32] Roche DP granted leave under s 352(3A) in circumstances where the result in the interlocutory appeal would lead to either the referral of the worker to an Approved Medical Specialist for assessment, or dismissal of the proceedings. It would conclude the proceedings either way, subject to possibly a medical assessment. There have been multiple instances where leave has been granted where it would avoid the possibility of a worker undergoing needless medical assessment.[33] In Toll Transport Pty Ltd v Nand Wood DP granted leave to avoid the possibility of an unnecessary medical assessment which would be wasteful of the Commission’s resources.[34] The class of such cases is not closed, it depends on the circumstances of the particular matter.
[32] [2011] NSWWCCPD 31, [19].
[33] See for example, Campbelltown Tennis Club Ltd v Lee [2013] NSWWCCPD 50.
[34] [2023] NSWPICPD 64, [18]–[19].
Interlocutory appeals, by their nature, tend to slow down the determination of disputes. The ‘guiding principle’ in s 42(1) of the 2020 Act is that the 2020 Act and the Rules should facilitate “the just, quick and cost effective resolution of the real issues in the proceedings”. Rule 67C(4) (which the Member applied) provides for admission of an additional document if the decision-maker is “satisfied the introduction of the document is necessary to facilitate the just, quick and cost effective resolution of the real issues in the proceedings”. Satisfaction of the ‘guiding principle’ is not assisted by interlocutory appeals. Section 352(3A) provides a discretion that may be exercised where it is “necessary or desirable for the proper and effective determination of the dispute”, whilst otherwise prohibiting a Presidential appeal against an interlocutory decision. It is, of course, potentially possible in any event for the Council to appeal the Member’s discretionary decision on admission of the disputed Application, after the final decision in the matter.
In Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc the plurality in the High Court quoted the following passage[35] from In Re the Will of Gilbert, “with approval”:
"... I am of opinion that, ... there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal."[36]
[35] [1981] HCA 39; 148 CLR 170, 177.
[36] (1946) 46 SR (NSW) 318, 323.
The appellant’s success in its appeal would require that it establish error, in a challenge against the exercise by the Member of a statutory discretion, involving practice and procedure. This raises the principles in House v the King (which have not been specifically addressed in the Council’s submissions) together with the requirements of s 42 of the 2020 Act. It is appropriate to have regard to the above passage from In Re the Will of Gilbert in exercising this discretion. This is generally consistent with application of the ‘guiding principle’ in s 42 of the 2020 Act. I note this passage was referenced in the Council’s submissions that dealt with the reasons of Parker ADP in Draper. The Council has not identified any persuasive reason for why leave should be granted for this appeal to be made on an interlocutory basis. It is, of course, possible for the Council to challenge the relevant ruling by way of appeal after the final result.[37]
[37] Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478, [6].
I decline to grant the Council leave pursuant to s 352(3A) of the 1998 Act to appeal this interlocutory decision. The appeal cannot be brought.
DECISION
The Council’s application for leave to bring this appeal pursuant to s 352(3A) of the 1998 Act is refused.
Michael Snell
DEPUTY PRESIDENT
28 October 2025
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