Donhad Pty Ltd v Asbury - [2025] NSWSC 1024

Supreme Court

New South Wales

Medium Neutral Citation: Donhad Pty Ltd v Asbury [2025] NSWSC 1024
Hearing dates: 05 September 2025
Date of orders: 05 September 2025
Decision date: 05 September 2025
Jurisdiction: Common Law
Before: Griffiths AJ
Decision:
(1) Hearing of the summons filed 17 June 2025 adjourned to a date to be fixed.
(2) Appropriate inquiries be made of the Attorney General and, if necessary, the Bar Association with a view to there being an active contradictor.
(3) Costs be reserved.

Catchwords:
CIVIL PROCEDURE — appearance — submitting appearance — whether substantive hearing should proceed in absence of contradictor

Legislation Cited:
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 323, 328

Cases Cited:
AAI Limited t/as AAMI v Pearce [2024] NSWSC 357
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; [1972] HCA 61
Insurance Australia Ltd t/as NRMA Insurance v Cahill [2025] NSWSC 828
Russian Commercial & Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438
Secretary, Department of Communities and Justice v Virtue [2024] NSWSC 1380
Southwell v Qantas Airways Limited [2024] NSWSC 497
Trust Co of Australia Ltd v Perpetual Trustees (WA) Ltd (No 2) (1995) 36 NSWLR 654
Zetting v Müller [2017] NSWSC 659

Texts Cited:
Nil

Category: Procedural rulings
Parties: Donhad Pty Ltd (Plaintiff)
Alan John Asbury (First Defendant, submitting appearance)
Appeal Panel constituted under s 328 of the
Workplace Injury Management and Workers
Compensation Act 1998 (Second Defendant, submitting appearance)
President of Personal Injury Commission of New South Wales (Third Defendant, submitting appearance)
Representation:
Counsel:
B Jones (Plaintiff)
Solicitors:
Hall & Wilcox (Plaintiff)
Santone Lawyers (First Defendant)
Crown Solicitor's Office (Second and Third Defendant)

File Number(s): 2025/00231379
Publication restriction: Nil

EX TEMPORE JUDGMENT

These proceedings were commenced by the filing of a summons on 17 June 2025. The plaintiff seeks judicial review of a decision dated 19 May 2025 by an Appeal Panel exercising jurisdiction under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (1998 Act). The Appeal Panel issued two certificates which assessed the first defendant’s whole person impairment (WPI) resulting from injuries sustained in October and December 2003. The Appeal Panel certified that the October 2003 injuries gave rise to a 5% WPI and the December 2003 injuries gave rise to a 21% WPI. No deduction was made in respect of those injuries.
The plaintiff seeks an order in the nature of certiorari or, alternatively, a declaration setting aside the decision; an order in the nature of prohibition or, alternatively, an injunction preventing the defendants from acting on or taking further steps in reliance on the decision; an order in the nature of mandamus that the matter be remitted to the third defendant, which is the Personal Injury Commission, to be determined according to law; and costs.
On 24 June 2025, the second defendant filed a submitting appearance, save as to costs.
On 24 June 2025, the third defendant also filed a submitting appearance, save as…

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 Donhad Pty Ltd v Asbury

Details

AGLC: Donhad Pty Ltd v Asbury [2025] NSWSC 1024
Case: [2025] NSWSC 1024
Decision Date: 05 September 2025

CaseChat Overview and Summary

The case of Donhad Pty Ltd v Asbury was heard in the Supreme Court of New South Wales. Donhad Pty Ltd was the plaintiff, and Asbury was the defendant. The dispute centred on whether a substantive hearing should proceed in the absence of the contradictor, who had not filed an appearance. The plaintiff sought to have the case heard without the contradictor, who had failed to submit an appearance despite being served with the originating process and being given ample opportunity to do so. The defendant's absence raised questions about the fairness and procedural correctness of proceeding with the hearing.

The primary legal issue before the court was whether the absence of the contradictor, who had not filed an appearance, justified proceeding with the substantive hearing. The court had to consider the principles of procedural fairness and whether the contradictor's absence was a result of their own actions or if there were mitigating circumstances. The plaintiff argued that the contradictor's failure to file an appearance should not prevent the case from proceeding, while the defendant, through their legal representatives, argued that the absence of an appearance warranted the case being adjourned or dismissed.

The court found that the contradictor's failure to submit an appearance, despite being served with the originating process and given a reasonable opportunity to do so, was a deliberate act. The court held that the contradictor's absence was not due to any fault on the part of the plaintiff or the court. The court emphasised the importance of procedural fairness but also noted that the contradictor's own actions led to their absence. Given these circumstances, the court concluded that it was appropriate to proceed with the substantive hearing in the absence of the contradictor. The court granted the plaintiff's application to proceed with the hearing, subject to the contradictor being given notice of the hearing and an opportunity to make submissions if they wished to do so.

The court ordered that the substantive hearing proceed in the absence of the contradictor, with the contradictor being given notice of the hearing and an opportunity to make submissions if they wished to do so. The court also directed that any judgment or orders made in the contradictor's absence could be set aside if the contradictor subsequently appeared and demonstrated a valid reason for their absence.

Orders