Yun Fu Wang v Botany View Hotel [2008] NSWCA 229 (17 September 2008)

Last Updated: 29 September 2008

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Yun Fu Wang v Botany View Hotel [2008] NSWCA 229


FILE NUMBER(S):
40071/08

HEARING DATE(S):
17 September 2008


EX TEMPORE DATE:
17 September 2008

PARTIES:
Yun Fu Wang (Applicant)
Botany View Hotel (Respondent)

JUDGMENT OF:
Beazley JA McColl JA

LOWER COURT JURISDICTION:
Workers Compensation Commission

LOWER COURT FILE NUMBER(S):
WCC 3530-07

LOWER COURT JUDICIAL OFFICER:
Acting Deputy President O'Grady

LOWER COURT DATE OF DECISION:
26 February 2008

LOWER COURT MEDIUM NEUTRAL CITATION:
Yun Fu Wang v Botany View Hotel Limited [2008] NSWWCCPD 25

COUNSEL:
In person (Applicant)
L King SC; D A Baker (Respondent)

SOLICITORS:
Sparke Helmore (Respondent)

CATCHWORDS:
WORKERS COMPENSATION - appeal against decision of Workers Compensation Commission - Deputy President's refusal of leave to adduce fresh evidence - refusal within Deputy President's discretion - evidence of workplace injury - employment not a substantial contributing factor - no appealable error demonstrated

LEGISLATION CITED:



CASES CITED:


TEXTS CITED:


DECISION:
The summons for leave to appeal is dismissed with costs



JUDGMENT:

- 3 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 040071/08

BEAZLEY JA

McCOLL JA

Ex tempore 17 September 2008

Yun Fu Wang v Botany View Hotel

Judgment

1 THE COURT: This is an application for leave to appeal from a decision of a Deputy President, Mr K O’Grady, of the Workers’ Compensation Commission given on 26 February 2008. The applicant, Mr Yun Fu Wang, appeared for himself in the proceedings. He made three substantial points as to why he should be granted leave to appeal.

2 The first was that the Deputy President was in error in proceeding upon the basis that he had not filed an application for leave to appeal from the arbitrator’s decision until 2 October 2007, when in fact he had lodged an application for leave to appeal on 24 August 2007. He provided the Court with a stamped copy of the Commission document showing that such an application had been filed at that time. Mr Wang did not inform the Deputy President of that application during the course of the hearing, but he did make known to the Deputy President that there had been other applications for leave to appeal filed, one on 17 August and one on 31 August. The application of 17 August was placed before us and it was shown to have been rejected by the Commission. The application of 31 August, for reasons which are not clear, was not proceeded with before the Commission, but the Deputy President was fully aware of its existence. It appears that none of the applications had been served. Nothing arises from that. That does not affect their validity. However, the matter proceeded before the Deputy President on the basis of an application filed on 2 October 2000, which was, of course, out of time.

3 If reliance upon an application that was out of time was the only issue in the hearing before the Deputy President, then it might be expected that leave to appeal might have been granted and that no point would have arisen about the late filing. However, there were two other alleged errors.

4 The second alleged error was that the Deputy President erred in refusing leave to adduce fresh evidence. The fresh evidence was the report of Dr Peter Conrad, specialist surgeon, dated 19 November 2007 and a report of Dr Ernest Tan, consultant physician and geriatrician, dated 5 November 2007. There was also a third report of Dr Grant of 18 March 2004, but, as I understand it, that evidence was permitted to be relied upon.

5 The Deputy President considered the reports of Dr Conrad and Dr Tan for the purposes of deciding whether he would allow them to be relied upon by Mr Wang. He decided that he would not do so, because no sufficient explanation had been given for the delay in adducing that evidence. That was a decision which was within his discretion and nothing has been indicated to show that there was an error of law such that this Court ought to grant leave in respect of that matter.

6 The third issue related to the reason why the Deputy President considered that the application for leave to appeal to the Commission should be refused. The Deputy President’s reasoning is essentially contained in [59] of his reasons given on 26 February 2008, less than two weeks after the hearing. The Deputy President accepted that there had been a work place injury, but found that the evidence did not support the fact that his employment was a substantial contributing factor to the fall that Mr Wang had on 9 August, or any of the consequences and injuries that he has had since that date. In reaching that conclusion, the Deputy President had regard to the medical evidence, which he discusses at [39] ff in his reasons.

7 Mr Wang says that his employer had initially recognised that he had a fall at work, but subsequently changed its position and said that there was no injury at work. That seems to be a misunderstanding by Mr Wang. More importantly, however, it is a misunderstanding of the reasons for the Deputy President’s decision. The Deputy President accepted that the fall on 9 August occurred during the course of Mr Wang’s employment. However, he came to the view that the medical evidence did not support that Mr Wang’s employment was a substantial contributing factor, either to the fall, or to any other injuries or disabilities that he has suffered.

8 No arguable error of law has been demonstrated in respect of that finding. Mr Wang has not demonstrated that there is an arguable basis for the grant of leave to appeal. Accordingly, leave is refused and the Court orders that the summons for leave to appeal be dismissed with costs.

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LAST UPDATED:
25 September 2008