University of New South Wales v Kurup

The University of New South Wales appealed against a decision of the Workers Compensation Commission of New South Wales, arguing that the Commission erred in law by permitting the employee, Mr Kurup, to raise issues that had not been previously notified. The issues in dispute centred around Mr Kurup's entitlement to compensation for psychiatric injury, which he had not previously notified. The matter was heard in the Dust Disease Board of New South Wales, an intermediate court of appeal.

The court considered whether the Workers Compensation Commission had the discretion to permit the late notification of issues under section 74 of the Workplace Injury Management and Workers Compensation Act 1998. The court also examined whether the Senior Arbitrator had correctly exercised the discretion under section 289A(4) of the same Act, in particular, whether the Senior Arbitrator had considered the potential prejudice to the employer if leave to dispute the previously unnotified matters was granted. The court found that the Workers Compensation Commission had the discretion to permit the late notification of issues under section 74 of the Act. However, the court found that the Senior Arbitrator had not properly exercised the discretion under section 289A(4) of the Act, as they had not considered the potential prejudice to the employer if leave was granted.

The court held that the Senior Arbitrator's failure to consider the potential prejudice to the employer was a material error of law. The court held that the Workers Compensation Commission should have refused leave for Mr Kurup to dispute the previously unnotified matters. The court found that the Workers Compensation Commission had erred in law by permitting Mr Kurup to raise issues that had not been previously notified. The court found that the appeal should be allowed, and that the orders made in the Certificate of Determination dated 12 November 2013 should be confirmed. The University of New South Wales was ordered to pay the respondent’s costs of the appeal as agreed or assessed.