Iqbal v Hotel Operations Solutions Pty Ltd

[2022] NSWCA 88

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Iqbal v Hotel Operations Solutions Pty Ltd [2022] NSWCA 88

Hearing dates:

6 June 2022

Date of orders:

7 June 2022

Decision date:

07 June 2022

Before:

Meagher JA

Decision:

Dismiss the appellant’s application for referral for legal assistance under UCPR r 7.36

Catchwords:

CIVIL PROCEDURE – application for pro bono referral under UCPR r 7.36 – where grounds of appeal do not describe or identify any relevant question of law necessary to engage the right of appeal under Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 353 – application refused

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 7.36

Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 352(5), 353

Workers Compensation Act 1987 (NSW), s 4(b)(ii)

Cases Cited:

Renshaw v NSW Lotteries Corporation Pty Ltd [2021] NSWCA 41

Category:

Procedural rulings

Parties:

Mohammed Javed Iqbal (Appellant)
Hotel Operations Solutions Pty Ltd (Respondent)

Representation:

Counsel:

C Roberts (Respondent)

Solicitors:

(Appellant self-represented)
Hicksons Lawyers (Respondent)

File Number(s):

2021/00353147

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Personal Injury Commission

Citation:

[2021] NSWPICPD 40

Date of Decision:

15 November 2021

Before:

M Snell, Deputy President

Judgment

1. MEAGHER JA: By his notice of motion filed on 31 May 2022, the applicant, Mohammed Iqbal, seeks an order for pro bono “legal assistance” under Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 7.36.

2. In Renshaw v NSW Lotteries Corporation Pty Ltd [2021] NSWCA 41 at [10]-[12], Brereton JA observed in relation to the requirement in r 7.36(1) that the court be satisfied that referral is in the “interests of the administration of justice”:

“…Mere satisfaction that a litigant cannot otherwise obtain legal assistance is an insufficient reason. As subrule (2) contemplates, it is relevant to consider the person’s means, needs and capacity, the nature of the proceedings, and the likely availability and utility of legal assistance.

Moreover, pro bono assistance is a valuable and scarce resource, dependent on the goodwill of members of the legal profession, which should not be lightly dissipated. The Court has a responsibility to husband this resource carefully. The obligations undertaken by a lawyer who accepts a referral import a concomitant obligation on the Court to exercise discretion in the making of referrals. As I said in Dafaalla v Concord Repatriation General Hospital:

‘The success of the scheme is dependent upon the support of the profession, and the obligations which are undertaken by a lawyer on the pro-bono panel import a concomitant obligation on the Court to exercise discretion in the grant of referral certificates. While, by r 66A.1(4), a referral does not indicate that the Court has formed an opinion on the merits of a litigant’s case, the Court should ordinarily be reluctant to grant certificates in respect of matters that appear to be without merit. That is not to say that a referral should never be made in a case apparently lacking merit: for example, it may well be appropriate to grant a certificate, for the limited purpose of obtaining advice, in a case without legal merit, where there is some prospect that the advice will assist the litigant to understand the defects in the case, so that unnecessary litigation may be avoided.’

While referral for legal assistance does not reflect any opinion on the merits of a litigant’s case, normally the Court will want to see some signs of merit in a case before making a referral; absent merit, referral will rarely be “in the interests of the administration of justice”. In some cases, the possibility that examination of the case by a competent practitioner will reveal merit may suffice. In still others, apparently devoid of merit, the Court may grant a referral for the purposes of advice, if there is a prospect that such advice may assist the litigant to appreciate the defects in the case, with the result that unnecessary and futile litigation may be avoided…” [footnotes omitted]

3. Mr Iqbal’s application is made in relation to his appeal brought under Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act), s 353 from a decision of the Personal Injury Commission (PIC) (constituted by Deputy President Michael Snell) of 15 November 2021 (Iqbal v Hotel Operations Solutions Pty Ltd [2021] NSWPICPD 40). That appeal is fixed for hearing on 28 July 2022.

4. Section 353 confers a limited right of appeal to this Court where the appellant “is aggrieved by” the decision appealed from “in point of law”.

5. That decision of the PIC constituted by the Deputy President dismissed Mr Iqbal’s appeal from part of the determination of the Workers Compensation Commission constituted by an arbitrator, Rachel Homan, which addressed questions of liability with respect to the proceedings commenced by him in the Workers Compensation Commission on 2 November 2020 (Iqbal v Hotel Operations Solutions Pty Ltd [2021] NSWWCC 61).

6. That claim was for injuries to Mr Iqbal’s cervical spine, lumbar spine and digestive system as a result of the nature and conditions of his employment with the respondent as a hotel room attendant between October 2008 and October 2010. Addressing that claim, the arbitrator found that the applicant had sustained an aggravation, acceleration, exacerbation or deterioration of underlying asymptomatic biological age-related changes in his cervical spine where his employment was the main contributing factor to that aggravation, acceleration, exacerbation or deterioration; thus constituting an “injury” within the meaning of Workers Compensation Act 1987 (NSW) (1987 Act), s 4(b)(ii). The arbitrator determined that the deemed date of injury to the applicant’s cervical spine was 7 October 2010. The arbitrator was also satisfied that as a result of that injury Mr Iqbal developed a consequential upper gastrointestinal tract condition. The arbitrator was not satisfied that the applicant had established that there was any injury, involving aggravation or otherwise, to his lumbar spine, which arose out of or in the course of his employment.

7. The applicant’s appeal to the PIC against the arbitrator’s decision was limited to a determination of whether that decision was or was not “affected by any error of fact, law or discretion, and to the correction of any such error” (WIM Act, s 352(5)).

8. The appeal was made on two grounds. The first was that the finding of injuries to the cervical spine should have been that the injuries were caused by his employment and did not involve any aggravation, acceleration, exacerbation or deterioration of any existing condition. The second was that the arbitrator erred in finding that Mr Iqbal had not established that he had also sustained injuries to his lumbar spine caused by his employment. The Deputy President rejected each of those grounds which required detailed consideration of the applicant’s evidence as to his work and medical treatment history as well as the opinions of various experts, some treating and some providing medicolegal assessments.

9. Mr Iqbal’s Amended Notice of Appeal to this Court, by grounds 1, 2 and 3, challenges the correctness of the Deputy President’s dismissal of the appeal in relation to the arbitrator’s finding of an aggravation injury to his cervical spine (ground 1); and dismissal of the appeal from the arbitrator’s conclusion that he had not established any injury, by aggravation or otherwise, to his lumbar spine (grounds 2 and 3).

10. There is no ground 4 and ground 5 does not challenge any decision of the Deputy President in disposing of the appeal from the arbitrator. Rather it is directed to a permanent impairment assessment made on 2 March 2022 which was addressed to the injuries the subject of the arbitrator’s certificate of determination dated 24 February 2021, as confirmed by the PIC.

11. None of grounds of appeal 1, 2 or 3 identifies any error of law of the Deputy President in dismissing the appeal from the arbitrator’s findings of fact as to whether there were injuries to Mr Iqbal’s cervical spine and lumbar spine and the nature and cause of those injuries.

12. The applicant represented himself in the proceedings before the arbitrator. The arbitrator records that he was “strongly encouraged” to obtain legal representation funded through the Workers Compensation Independent Review Office (WIRO) and declined to do so. The proceedings were conducted by telephone and Mr Iqbal participated orally and by the making of written submissions. He was also self-represented in the proceedings before the Deputy President which were conducted on the papers, including written submissions prepared by the applicant.

13. In his affidavit in support of his application for legal assistance, Mr Iqbal maintains that he was having difficulty in “dealing with the case [in this Court] due to the following reasons –

a) I have spinal injuries which has limited my physical capacity to deal the case by myself.

b) I am on Centrelink disability support pension and have difficulty with the cost of the case.

c) My case is complex and I am not a lawyer so, I am having difficulty to deal the case.”

14. In this Court Mr Iqbal participated by telephone. During the course of oral exchanges he identified the respects in which his spinal injuries limited his physical capacity as including his ability to travel from his home in Queensland for the purpose of conducting an appeal in Sydney. He did not however suggest that he would not travel to Sydney to be present at the hearing of any appeal in the event he was represented. Nor did he suggest that he could not participate by telephone in the conduct of any appeal.

15. More generally, those short exchanges indicated that Mr Iqbal had not given much consideration to the precise assistance he might request or take advantage of if it was available. When asked whether he might seek advice as to the merits of his appeal Mr Iqbal indicated that he considered that his appeal had good prospects and that he would not be deflected from pursuing it in the face of legal advice suggesting otherwise. He also made clear that if he received assistance he would decide whether or not he should continue to be self-represented.

16. These exchanges did not make apparent how Mr Iqbal’s application for pro bono assistance might overcome any difficulties he was experiencing with the cost of the appeal. In elaboration of his statement that the case was “complex” and giving rise to difficulties, Mr Iqbal compared the procedures within the Commission with those in this Court, which he described without elaboration as involving less guidance and requiring more input from him.

17. In the circumstances summarised above I am not satisfied that the referral of Mr Iqbal for assistance under r 7.36 is in the interests of the administration of justice.

18. The right of appeal which he seeks to pursue is limited to decisions which involve errors of law. The issues to which the grounds of appeal are directed are issues of fact which principally turned on his evidence and that of treating and medicolegal experts. Those factual issues are thoroughly addressed by the arbitrator and in the decision of the Deputy President. On the face of those reasons, it is not obvious that the examination of Mr Iqbal’s proposed appeal will identify some error of law which arises for determination. It is more likely that such advice might include that Mr Iqbal has no right of appeal to this Court under WIM Act, s 353. However, it is not likely that such advice will avoid unnecessary and futile litigation. In the course of exchanges with Mr Iqbal he indicated that he had formed a view about the merits of his appeal and was not likely to abandon it in the face of such advice.

19. For these reasons I decline to make any referral under UCPR r 7.36 in respect of any aspect of Mr Iqbal’s appeal. His motion seeking an order to that effect is dismissed.

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Amendments

07 June 2022 - Reference in catchwords to Workplace Compensation Act 1998 changed to Workplace Injury Management and Workers Compensation Act 1998

Decision last updated: 07 June 2022