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

[2025] NSWCA 169

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

E B Murray Family Investments Pty Ltd t/as Bede Murray Racing Stables v Howard [2025] NSWCA 169

Hearing dates:

18 July 2025

Decision date:

30 July 2025

Before:

Adamson JA; McHugh JA; Griffiths AJA

Decision:

(1)   Allow the appeal.

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

(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)   Make no order as to costs in this Court.

Catchwords:

WORKERS COMPENSATION — appeal to Deputy President — where Deputy President dismissed appeal on basis that findings were “open” — where Court recently departed from established authority in State of New South Wales v Culhana [2025] NSWCA 157 — where appeal under s 352 governed by principles in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 and Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 — Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 352, 353

Legislation Cited:

Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 352, 353

Cases Cited:

Fisher v Nonconformist Pty Ltd (2024) 114 NSWLR 1; [2024] NSWCA 32

Howard v E B Murray Family Investments Pty Ltd t/as Bede Murray Racing Stables [2023] NSWPIC 410

Iqbal v Hotel Operation Solutions Pty Ltd [2022] NSWCA 138

Northern NSW Local Health Network v Heggie [2013] NSWCA 255

State of New South Wales v Culhana [2025] NSWCA 157

Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54; (2020) 295 IR 172

Category:

Principal judgment

Parties:

E B Murray Family Investments Pty Ltd t/as Bede Murray Racing Stables (Appellant)
Jo-Anne Howard (Respondent)

Representation:

Counsel:
J Turnbull SC / D Talintyre (Appellant)
D Del Monte (Respondent)

Solicitors:
Bartier Perry Lawyers (Appellant)
Turner Freeman Lawyers (Respondent)

File Number(s):

2024/427925

 Decision under appeal 

Court or tribunal:

Personal Injury Commission

Citation:

E B Murray Family Investments Pty Ltd t/as Bede Murray Racing Stables v Howard [2024] NSWPICPD 70

Date of Decision:

31 October 2024

Before:

Deputy President Michael Snell

File Number(s):

A1-W5892/22

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant, E B Murray Family Investments Pty Ltd t/as Bede Murray Racing Stables (the employer), appealed to this Court under s 353(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 1998 Act) against a decision of Deputy President Snell of the Personal Injury Commission (PIC), who had dismissed an appeal from a determination that the respondent, Jo-Anne Howard (the employee), lacked current work capacity.

The Deputy President applied established authorities which endorsed a limited factual review under s 352(5) of the 1998 Act. Before the appeal was heard, this Court delivered State of New South Wales v Culhana [2025] NSWCA 157 (Culhana), which rejected that line of authority. In Culhana, the Court held that appeals under s 352 should apply the approach in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 and Fox v Percy (2003) 214 CLR 118; [2003] HCA 22. This required the Presidential member to determine whether, after giving appropriate deference to the Member’s factual advantage, a different conclusion ought be reached rather than deciding whether the finding was “open”.

Following Culhana, the employer amended its notice of appeal to allege an error of law arising from the Deputy President’s application of an erroneous standard of review for an appeal under s 352 of the 1998 Act.

The Court held (Adamson JA, McHugh JA and Griffiths AJA) allowing the appeal:

1. 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 of the 1998 Act. The orders proposed by the parties indicate that it is common ground that the error was material. In these circumstances, the parties’ joint position as to materiality is accepted: [10].

JUDGMENT

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

An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.

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. 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:

[91] Future appeals under s 352 should apply the approach in Warren v Coombes [(1979) 142 CLR 531; [1979] HCA 9] and Fox v Percy [(2003) 214 CLR 118; [2003] HCA 22]. Appropriate deference is to be given to members where their findings are based on evidence in respect of which they have an advantage (such as the kind identified in Lee v Lee [(2019) 266 CLR 129; [2019] HCA 28] at [55]) over the Presidential member hearing an appeal. But it is not sufficient for an appeal to be dismissed on the basis that an inference was “open” to the member, as if the member were a jury and there was some evidence supporting it. If the Presidential member, after making appropriate allowance for the advantages enjoyed by the member, would reach a different conclusion on a question of fact, he or she should not shrink from giving effect to it. Otherwise, the Presidential member will be dismissing an appeal but without fully addressing whether there is an error of fact, law or discretion.

[92] There are apt to be decisions by the Commission constituted by a Presidential member which have applied the approach overturned by this Court’s judgment. Some may be pending appeals to this Court; others may be cases where no appeal has been lodged. The fact that a Presidential member has applied the incorrect approach does not without more mean that a further appeal to this Court under s 353 will be allowed. It will be necessary to establish material error of law. Unless it be shown that an application of the approach in Warren v Coombes and Fox v Percy and Lee v Lee would make a difference, an appeal will be dismissed.

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. 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. 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:

The Deputy President erred in law in applying an erroneous standard of review for an appeal under s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).

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

1   Appeal allowed.

2   Set aside the decision of the Personal Injury Commission constituted by Deputy President Snell.

3 Remit the appellant's appeal under section 352 back to the Personal Injury Commission for determination in accordance with law by a Deputy President other than Deputy President Snell.

4    Each party to pay their own costs.

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. 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

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

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

1. Allow the appeal.

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

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. Make no order as to costs in this Court.

**********

Decision last updated: 30 July 2025