Datta v AAI Limited t/as GIO Limited

[2025] NSWCA 209

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Datta v AAI Limited t/as GIO Limited [2025] NSWCA 209

Hearing dates:

On the papers

Date of orders:

9 September 2025

Decision date:

09 September 2025

Before:

Leeming JA at [1]
Free JA at [2]

Decision:

(1)   An order extending the time for the filing of the summons seeking leave to appeal to 13 June 2025.

(2)   The application for leave to appeal is dismissed.

(3)   The applicants are to pay the respondents’ costs.

Catchwords:

SUMMARY DISMISSAL – Leave to appeal from order for summary dismissal – Requirement for leave – Absence of any factor warranting the grant of leave – Defects in claim seeking to re-litigate workers compensation entitlements

Legislation Cited:

Civil Liability Act 2002 (NSW), s 15

Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, ss 236, 237

Supreme Court Act 1970 (NSW), s 101

Workers Compensation Act 1987 (NSW), ss 59, 60, 60AA

Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 51.10

Cases Cited:

AB v State of New South Wales [2014] NSWCA 243

Datta v Universal Consultancy Services Pty Ltd [2019] NSWWCC 290

Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164

D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12

Macatangay v State of New South Wales (No 2) [2009] NSWCA 272

Poulos v Commonwealth Bank of Australia [2019] NSWCA 241

Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206

Universal Consultancy Services Pty Ltd v Datta [2008] NSWWCCPD 87

Category:

Procedural rulings

Parties:

Mrinal Datta (First applicant)
Raj Ama Tembur (Second applicant)
AAI Limited t/as as GIO Limited (First respondent)
Matthew Garling (Second respondent)
Nicole Compton (Third respondent)
Joshua Dale (Fourth respondent)
Paul Stockley (Fifth respondent)

Representation:

Counsel:
M Datta / R A Tembur (Self-represented applicants)
L D Robison (First respondent)
K E Holcombe (Second and fourth respondents)
S Maybury (Third respondent)
Q M Noakhtar (Fifth respondent)

Solicitors:
Hall & Wilcox Lawyers (First respondent)
Mills Oakley (Second respondent)
DLA Piper (Third respondent)
Moray & Agnew (Fourth respondent)
Barry Nilsson Lawyers (Fifth respondent)

File Number(s):

2025/104882

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2025] NSWSC 112

Date of Decision:

26 February 2025

Before:

Rothman J

File Number(s):

2023/224777

JUDGMENT

1. LEEMING JA: I agree with Free JA.

2. FREE JA: The applicants, Mrinal Datta (Mr Datta) and Raj Ama Tembur (Ms Tembur), are husband and wife. They were the first and second plaintiffs respectively in a claim filed in the Supreme Court seeking damages and other relief against the five respondents. The primary judge summarily dismissed that claim and the applicants now seek leave to appeal from his Honour’s decision. In order to understand the nature of the claim brought, and why there is no reason to doubt that the primary judge was correct to dismiss it summarily, it is necessary to explain some of the long history of the matter.

The workers compensation claim of Mr Datta and subsequent disputes

3. On 3 February 2001 Mr Datta was the victim of an assault, as a result of which he suffered serious facial injuries and psychological injury in the form of post-traumatic stress disorder, depression and anxiety. This was accepted to be a workplace injury for the purposes of the Workers Compensation Act 1987 (NSW) (WC Act). At that time, he was employed as a database administrator by Universal Consultancy Services Pty Ltd, an information technology consultancy. The first respondent (GIO) was the workers compensation insurer for Mr Datta’s employer.

4. Mr Datta claimed workers compensation under the WC Act. In 2002 an award was made in his favour based on an assessment of his total incapacity for work, including an order requiring the payment of weekly compensation and an order requiring the payment of his medical and other treatment expenses under s 60 of the WC Act: Universal Consultancy Services Pty Ltd v Datta [2008] NSWWCCPD 87 at [4].

5. Mr Datta returned to India in 2002. Ms Tembur commenced work as his carer. In 2015 Mr Datta and Ms Tembur were married, and Ms Tembur continued to provide care to Mr Datta, apparently on a gratuitous basis.

6. A dispute subsequently arose concerning Mr Datta’s entitlement to payments under s 60AA of the WC Act in respect of domestic assistance. On 11 November 2018 the second defendant (Mr Garling) commenced acting for Mr Datta as his solicitor. On 26 June 2019 Mr Garling lodged an application with the Workers Compensation Commission (WCC) on behalf of Mr Datta to resolve a dispute relating to compensation for domestic assistance. The third defendant (Ms Compton) was retained as counsel to advise and to appear in the proceedings commenced by that application. On 3 September 2019 the WCC, pursuant to s 60AA of the WC Act, ordered GIO to pay the reasonable costs of the provision of commercial domestic assistance up to 19 hours per work, on the basis of a finding that this was reasonably necessary as a result of the injuries Mr Datta had sustained on 3 February 2001: Datta v Universal Consultancy Services Pty Ltd [2019] NSWWCC 290.

7. In late 2020 Mr Datta instructed the fourth respondent (Mr Dale), a different solicitor, to seek a determination from the WCC in respect of gratuitous domestic assistance provided by Ms Tembur. Mr Holcombe lodged an application on 2 November 2021 to resolve a dispute in respect of that matter. The fifth respondent (Mr Stockley), a barrister, was retained to advise and appear for Mr Datta. On 18 March 2022 the Personal Injury Commission (PIC) ordered GIO to pay Mr Datta the amount of $76.75 per week, in respect of 19 hours of gratuitous assistance, with effect from 3 September 2019.

Statement of claim filed in the Supreme Court

8. On 31 October 2023 the applicants filed a statement of claim in the Supreme Court, naming the respondents as defendants. The relief sought by the applicants was wide ranging:

1 An interlocutory order to compel the fulfillment of the specific performance obligation to arrange immediate medical treatment under Section 60 in a multidisciplinary medical facility as advised by the treating specialist, including costs for rehabilitation in a segregated accommodation for the First Plaintiff due to psychiatric illness;

2   Petition for the court to take suo moto cognizance and examine the WCC Matter Number 3108/19 to determine a clear winner so that proper order could be passed in respect of time rate for past domestic assistance starting from 21 June 2002 to 28 August 2015 and ongoing gratuitous domestic assistance commencing from 29 August 2015 to current;

3 A Declaration that the conduct of the Third Defendant against the First Plaintiff in the events during the conciliation/arbitration proceedings in respect of the WCC Matter No. 3108/19 was misconduct for the purposes of Legal Profession Uniform Conduct (Barristers) Rules 2015 under the Legal Profession Uniform Law (NSW) 2015;

4   Further or alternatively, referral to the New South Wales Bar Association for an investigation into the Third Defendant's conduct in Workers Compensation Commission Matter Number 3108/19;

5   A Declaration that the conduct of the First Defendant against the Claimants in the events following the making of the orders of the Compensation Court of New South Wales and Workers Compensation Commission was unconscionable conduct concerning unconscientious advantage being taken of the Claimants who are suffering from special disadvantage for the purposes of the general law;

6 A Declaration for the purposes of Section 35 of Civil Liability Act 2002 NSW and/or the general law, that Second, Third, Fourth and Fifth Defendant are concurrent wrongdoers;

7 An Order for the purposes of Sections 236 and 237 of Schedule 2 of the Australian Consumer Law and/or general law that the Respondents pay damages and/or compensatory damages such as the Court may so order to the First Plaintiff and to the Second Plaintiff;

8   Further or alternatively, equitable compensation;

9   Damages against each of the respondents;

10   Exemplary damages against each of the respondents;

11   Reimbursement of out-of-pocket expenses;

12   Reimbursement of past medical treatment;

13   Ongoing future medical treatment;

14   Past economic loss;

15   Future economic loss;

16   Lost Superannuation benefits;

17   Future Superannuation benefits;

18   Costs and disbursements;

19 Interest under s 100 of the Civil Procedure Act 2005 to the date of any judgment.

20   A declaration that the Claimant is entitled to set off any amount awarded by this Court in damages as against any monies it is found liable to pay the First Defendant.

21   Such further or other order(s) as the Court considers appropriate.

9. As can be seen, in addition to claiming damages and other compensatory relief the applicants sought orders requiring the provision of certain treatment under s 60 of the WC Act, a determination as to who was the “clear winner” of the dispute regarding payments for domestic assistance, findings of misconduct by legal practitioners and associated referrals of those practitioners to professional bodies.

10. The statement of claim features equally wide-ranging allegations of fact against the respondents over 171 paragraphs. It alleges in broad ways negligence “related to medical treatment and domestic assistance” provided to Mr Datta, extending to breaches of duties by each of the respondents. The duties said to be owed by the respondents are not conventional duties of care, but rather duties to do, or not do, specific things relevant to Mr Datta’s workers compensation claims. For example, the duties said to have been owed by GIO to Mr Datta include duties to comply with court orders, to ensure timely medical treatment, not to selectively use medical reports and to provide lifetime medical treatment for compensable injury in India or elsewhere.

11. As against the solicitors, Mr Garling and Mr Dale, there are no orthodox allegations of acts constituting a failure to take reasonable care in the context of a duty of care owed to their client. The allegations are instead pitched at the level of a duty to make particular claims and obtain particular benefits under the WC Act. Similar problems infect the pleaded claims against counsel, Ms Compton and Mr Stockley. As the primary judge correctly observed at [11], the statement of claim does not adequately particularise any professional negligence or any other negligence on which the applicants might rely.

12. The statement of claim includes a number of allegations about the substantive entitlements of Mr Datta under the WC Act and the process for determining such entitlements in the WCC and the PIC. Allegations are also made about GIO having wrongly failed to recognise or pay those entitlements. The statement of claim identifies a number of “substantive issues” of this kind which are said to require determination under the WC Act and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIMWC Act).

13. The statement of claim is unclear in a number of respects, including because of repeated assertions that a “cause of action” occurred, emerged or arose when particular events occurred or steps were taken or not taken in the context of conciliation, arbitration and other processes in the WCC and the PIC. Twenty-five such “causes of action” are referred to in the statement of claim. This includes causes of action said to arise from the way in which GIO dealt with Mr Datta’s claims for workers compensation and the way in which solicitors and counsel acting for Mr Datta conducted the proceedings before the WCC and the PIC.

14. Although the formula of “cause of action” is used, the statement of claim does not in this respect spell out allegations of fact comprising a recognisable cause of action in negligence or otherwise. The words are instead used as a conclusory label attached to particular steps in the process of litigation in the WCC and the PIC which the applicants allege were wrong. For example, the applicants are evidently aggrieved that when the WCC made an order on 3 September 2019 requiring that GIO pay Mr Datta the reasonable costs of domestic assistance for up to 19 hours per week the WCC did not specify the hourly rate. The lack of specification of an hourly rate in the order is said to give rise to the seventh cause of action referred to in the statement of claim.

Determination by the primary judge

15. Each of the defendants named in the statement of claim sought an order that the proceedings be summarily dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) (with alternative orders sought in each case, including orders striking out the statement of claim).

16. The primary judge found that no reasonable cause of action was disclosed by the statement of claim, as the claims brought by the applicants were so obviously untenable that they could not succeed. His Honour was therefore satisfied that it was appropriate to dismiss the proceedings summarily. In reaching these conclusions, his Honour noted that the essence of the applicants’ claim was dissatisfaction with the determinations that had been made by the WCC and the PIC. That was in circumstances where the determinations remained in effect. The validity of the determinations was not the subject of challenge, even collaterally, and neither the WCC nor the PIC was joined as a defendant to the claim.

17. To the extent that the claim against GIO involved agitation of Mr Datta’s rights under the WC Act, including as to payments for medical treatment under s 60 of the WC Act, the primary judge found that the Supreme Court has no jurisdiction to determine such claims. The responsibility for making such determinations lay instead with the WCC and the PIC. His Honour observed that although the applicants wanted the Supreme Court to declare the “clear winner” of the dispute over workers compensation entitlements, in circumstances where the determinations of the WCC and PIC were not challenged either by judicial review or purported appeal, there was no legal basis for the claim.

18. There was an allegation of unconscionability against GIO in respect of the manner in which it conducted proceedings under the WC Act, but the primary judge found that the claim was unsustainable in circumstances where Mr Datta had been represented by experienced solicitors and counsel. While a claim for damages under ss 236 and 237 of the Australian Consumer Law (being Sch 2 to the Competition and Consumer Act 2010 (Cth)) was made in the statement of claim, the primary judge observed that there was no corresponding allegation of liability under the Australian Consumer Law (other than the deficient claim of unconscionability).

19. In relation to the claims against the solicitors and counsel who had advised and represented Mr Datta, the primary judge found that on its face the conduct about which complaint was made in the statement of claim was conduct either performed in Court or so intimately connected with the conduct of the case that it would be subject to the immunity attaching to advocates in respect of matters arising in court or ancillary to the litigation process: D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [31]-[39]. In any event, the primary judge did not consider that the statement of claim contained any allegations against the second to fifth defendants that were maintainable in tort.

20. The primary judge also noted that the claims made by Ms Tembur, as the second plaintiff, were hopeless in circumstances where she had no recognisable legal relationship with any of the defendants capable of giving rise to a cause of action.

Leave to appeal is required

21. An order summarily dismissing a proceeding is an interlocutory order: Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 at [11]-[13]; AB v State of New South Wales [2014] NSWCA 243 at [10]; Poulos v Commonwealth Bank of Australia [2019] NSWCA 241 at [24]. As such, leave to appeal is required pursuant to s 101(2)(e) of the Supreme Court Act 1970 (NSW).

22. Leave to appeal will ordinarily be granted only when the proposed appeal raises an issue of principle or question of public importance, or seeks to address a reasonably clear injustice going beyond something that is merely arguable: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28].

23. The applicants in the present matter dispute the requirement for leave. They filed a notice of appeal, without leave, on 14 March 2025. They were subsequently advised of the requirement for leave by the Registrar of the Court of Appeal on 16 April 2024, leading to the filing of a summons seeking leave to appeal on 13 June 2025 and later an amended summons seeking leave to appeal on 18 July 2025. Neither summons was accompanied by a draft notice of appeal, but it is sufficient for the purposes of the application to rely on the proposed grounds of appeal identified in the amended summons and the earlier notice of appeal filed on 14 March 2025.

24. The first of the arguments advanced by the applicants for a grant of leave is itself directed to what the applicants describe as the Registrar’s “reclassification” of the appeal as one requiring leave. That aspect of the application is misconceived. As explained above, leave is required because of the interlocutory character of the judgment that the applicants seek to overturn. The Registrar did not “reclassify” the appeal, but rather correctly and fairly drew to the applicants’ attention the requirement for leave.

The applicants require an extension of time

25. Because the applicants did not in fact seek leave to appeal until 13 June 2025, the application was out of time. Judgment was delivered by the primary judge on 26 February 2025 and any application for leave was required to be filed within 28 days (in circumstances like the present where no notice of intention to appeal was served): UCPR, r 51.10(1)(b). The applicants therefore require, and seek, an extension of time.

26. The third respondent consented to such an extension of time, whereas the second and fourth respondents (who were jointly represented) contended that in circumstances where the application itself was without substance and should be refused the request for an extension of time should also be refused. None of the respondents complained of any prejudice arising from the late filing of the summons. That is unsurprising, given that a notice of appeal (albeit an incompetent one, given the requirement for leave) was filed within time, on 14 March 2025. In the circumstances an extension of time ought be granted to allow the amended summons to be determined on its merits.

The decision of the primary judge is not attended by sufficient doubt to warrant a grant of leave

27. The applicants, in Ground 2 of their summary of argument, contend that the primary judge committed “jurisdictional error” because he described Mr Datta as having been a security officer in 2001, in circumstances where Mr Datta had in fact been a database administrator. As a matter of fact, the primary judge did err in his description of Mr Datta’s employment. However, nothing turns on the error and it is not jurisdictional in character. The reference appears in a section of his Honour’s reasons for judgment summarising the history of the proceedings. The erroneous description of Mr Datta as having been a security officer had no bearing on his Honour’s treatment of the substantive issues concerning the viability of the claims made by the applicants in their statement of claim.

27. The next set of arguments advanced by the applicants is organised under the heading “Ground 3: Jurisdictional Error – Foreign Wage Rate and Domestic Assistance”. These arguments start from the erroneous premise that the primary judge “upheld” the PIC’s gratuitous care rate of $4.04 per hour, which is said to lack a statutory basis under s 15(5) of the Civil Liability Act 2002 (NSW), s 60AA of the WC Act and the pre-2021 State Insurance Regulatory Authority Guidelines (SIRA Guidelines).

28. This argument misconceives the judgment below. The primary judge did not purport to make a finding as to the correctness or otherwise of the determination which had been made by PIC concerning Mr Datta’s entitlement to payments in respect of gratuitous care. To the contrary, the primary judge found, correctly, that these were matters within the jurisdiction of PIC and the statement of claim was misconceived to the extent that it depended upon the Supreme Court effectively re-determining entitlements under the WC Act.

29. The next set of arguments of the applicants, styled as “Ground 4: Jurisdictional Error – Medical Expenses Refusal”, involves a similar misconception about the judgment below, and the need to demonstrate a reasonably clear injustice arising from the way in which the primary judge resolved the application for summary dismissal. Ground 4 does not in fact identify any error on the part of the primary judge. Instead it involves an attack on the conduct of the GIO in its approach to the determination of claims in the PIC. The applicants complain that GIO selectively relied on particular medical reports and ignored other reports, and ignored expenses associated with Indian doctors, contrary to the SIRA Guidelines. These matters are said to demonstrate a breach of s 60 of the WC Act because Mr Datta did not receive the payments to which he was entitled for reasonably necessary medical expenses. There is also a complaint that GIO did not pay the invoice for a medical report that it had solicited, which is said to demonstrate a breach of s 59 of the WC Act.

30. These arguments do not assist the applicants in demonstrating any error on the part of the primary judge in summarily dismissing their claim. Again, the arguments serve only to confirm the correctness of his Honour’s assessment that the applicants were in substance seeking to have the Supreme Court reconsider Mr Datta’s entitlement to workers compensation, in circumstances where that is a matter that had already been determined by the WCC and the PIC as the bodies with the relevant statutory responsibilities. The claim brought by the applicants in the Supreme Court was neither a purported appeal nor a judicial review challenge to the determinations of the WCC and the PIC. Nor did the Supreme Court have jurisdiction to itself engage in a process of determining substantive entitlements under the WC Act.

31. The notice of appeal filed by the applicants identifies three other matters that are not developed in the amended summons or the applicants’ summary of argument. The first is that the applicants were subjected to procedural unfairness in their capacity as self-represented litigants. The notice of appeal refers to the applicants having been referred to the Legal Assistance Referral Scheme, but failing to secure representation, and also to the assistance provided to the applicants by an advocate named Jyoti Ranjan Pattanaik, who is a legal practitioner in India. Neither of the matters referred to provides any logical basis to suggest a denial of procedural fairness. It is plain from the record that the applicants were given a reasonable opportunity to respond to the applications for summary dismissal made by the respondents and they took up that opportunity. The fact that they were unable to persuade the primary judge that the statement of claim disclosed a reasonable cause of action is not an indication of a denial of procedural fairness.

32. The second matter referred to in the notice of appeal, but not otherwise developed by the applicants, is that the primary judge misapplied advocate’s immunity in reasoning that GIO was entitled to the benefit of such immunity. The reasoning of the primary judge in summarily dismissing the claim did not depend on any finding that GIO was entitled to advocate’s immunity. While the primary judge did make some comments about the potential application of the immunity to the conduct of a party in proceedings, that was in the context where his Honour made clear that he was not deciding that question: [23].

33. The third matter referred to in the notice of appeal only is that the primary judge overlooked “system collusion” between GIO and the legal professionals who represented Mr Datta. The applicants have done nothing to demonstrate that there is a proper basis for such a serious allegation. An examination of the statement of claim does not reveal any such basis. In the circumstances, it is nothing more than an unsubstantiated assertion.

34. These are the only matters advanced by the applicants that might be said to go to the question of whether it has been shown, on a basis that is more than merely arguable, that a reasonably clear injustice has occurred. None of the matters raised by the applicants withstands scrutiny or provides even an arguable basis for discerning a reasonably clear injustice.

There is no issue of principle or question of public importance warranting a grant of leave

36. Ground 5 in the applicants’ summary of argument involves an assertion that the application raises important public questions regarding “the procedural treatment of unrepresented litigants, the scope of the Registrar’s administrative power and the proper interpretation of statutory compensation entitlements”. Once the deficiencies in the applicants’ substantive claims are appreciated, it can be seen that no matter of public importance arises on the present application. As explained above, there is no substance to the complaint about the Registrar having highlighted the need for leave. Contrary to the applicants’ contentions, an appeal in the present matter would not be a vehicle for determining Mr Datta’s statutory compensation entitlements. Finally, no point arises for determination on appeal about the procedural treatment of unrepresented litigants. The applicants were not represented, and they were unsuccessful. The mere existence of those circumstances says nothing about the procedural treatment of unrepresented litigants.

37. The applicants argue that even if their application is dismissed, no order for costs should be made against them in circumstances where they are self-represented litigants acting in good faith, and where the respondents suppressed ABS data and medical advice. As to the first matter, even accepting that they have acted in good faith (and there is no allegation to the contrary put by any respondent) the status of the applicants as self-represented litigants is not a good reason to depart from the usual rule that costs follow the event. As to the second matter, it is unclear if the allegation of suppressing ABS data and medical advice, which tends to imply serious impropriety, is made against all of the respondents including those who represented Mr Datta. In any event, no impropriety of any kind, including of the kind that would be relevant to the costs of the application for leave to appeal, has been demonstrated.

38. The orders I would propose are:

1. An order extending the time for the filing of the summons seeking leave to appeal to 13 June 2025.

2. The application for leave to appeal is dismissed.

3. The applicants are to pay the respondents’ costs.

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Decision last updated: 09 September 2025