Iqbal v Hotel Operations Solutions Pty Ltd - [2014] NSWWCCPD 45

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Iqbal v Hotel Operations Solutions Pty Ltd [2014] NSWWCCPD 45
APPELLANT:	Mohammed Javed Iqbal
RESPONDENT:	Hotel Operations Solutions Pty Ltd
INSURER:	QBE Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-17013/12
ARBITRATOR:	Ms K Haddock
DATE OF ARBITRATOR’S DECISION:	21 March 2014
DATE OF APPEAL DECISION:	22 July 2014
SUBJECT MATTER OF DECISION:	Interlocutory orders; leave to appeal; dismissal of proceedings by Arbitrator for want of prosecution pursuant to s 354(7A)(c) of the Workplace Injury Management and Workers Compensation Act 1998; failure to comply with an Arbitrator’s directions; failure to properly particularise a claim for permanent impairment compensation
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Carters Law Firm
Respondent:	Curwoods Lawyers
ORDERS MADE ON APPEAL:	1. Leave to appeal is refused. 2. No order as to costs.

INTRODUCTION

On 21 March 2014, a Commission Arbitrator ordered that Mr Iqbal’s proceedings be dismissed for failure to prosecute the claim with due dispatch, pursuant to s 354(7A)(c) of the Workplace Injury and Management and Workers Compensation Act 1998 (the 1998 Act) and r 15.8 of the Workers Compensation Rules 2011 (2011 Rules).
As the Arbitrator’s decision is interlocutory, Mr Iqbal requires leave to appeal the Arbitrator’s determination, pursuant to s 352(3A) of the 1998 Act.

BACKGROUND

The appellant, Mohammed Javed Iqbal, was employed by the respondent, Hotel Operations Solutions Pty Limited, as a room attendant.
Mr Iqbal’s duties involved cleaning hotel rooms. He alleges that as a result of pushing, pulling and twisting of his body, whilst cleaning hotel rooms, he suffered a serious spinal injury and is incapacitated for work.
In a claim form dated 11 July 2012, Mr Iqbal claimed weekly payments of compensation from an unspecified date, in respect of an injury allegedly sustained on 7 October 2010.
On 21 September 2012, the respondent’s insurer, QBE Workers Compensation (NSW) Ltd (QBE), issued a notice under s 74 of the 1998 Act, denying liability.
On 27 December 2012, through his then solicitors, Auzasia Lawyers, Mr Iqbal lodged an Application to Resolve a Dispute (the Application) in the Commission. He claimed weekly payments of compensation from 7 October 2012 to date and continuing, lump sum compensation in the amount of $230,000 in respect of 19 per cent whole person impairment and $50,000, being the maximum amount then available under s 67 of the Workers Compensation Act 1987 (the 1987 Act), in respect of pain and suffering.
On 13 September 2013, the matter was listed for a telephone conference before a Commission Arbitrator. The respondent sought to have the matter struck out on the basis that the evidence filed with the Application failed to support the claims made. The Arbitrator refused that application at that time and made a series of orders, which included an order that by 29 November 2013, Mr Iqbal serve on the respondent’s solicitors, Curwoods Lawyers, a claim for permanent impairment benefits supported by appropriate medical evidence. The matter…

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.

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Details

Case: [2014] NSWWCCPD 45
Decision Date: 22 July 2014

CaseChat Overview and Summary

Iqbal commenced proceedings in the County Court against Hotel Operations Solutions Pty Ltd, alleging that he was permanently impaired due to injuries sustained during his employment. The case was subsequently referred to arbitration. The Arbitrator dismissed Iqbal's claim on the basis that he had failed to comply with the Arbitrator's directions and had not properly particularised his claim for permanent impairment compensation. Dissatisfied with this outcome, Iqbal sought leave to appeal to the Court of Appeal from the decision of the Arbitrator. The court was required to decide whether Iqbal was entitled to appeal the Arbitrator's decision, and if so, whether the appeal should proceed.

The court considered whether Iqbal's application for leave to appeal was an appealable matter under the statutory provisions of the Workplace Injury Management and Workers Compensation Act 1998. The court also considered whether Iqbal had a reasonable prospect of success on appeal, and whether the appeal would be in the interests of the administration of justice. After considering these factors, the court concluded that Iqbal's application did not meet the criteria for leave to appeal. The court held that the Arbitrator's decision was based on sound legal principles and that there was no reasonable prospect of success on appeal. The court further held that allowing the appeal would not be in the interests of the administration of justice, as it would not result in a just outcome for either party.

Accordingly, the court refused Iqbal's application for leave to appeal. No order was made as to costs.

Orders

Orders of the court

1. Leave to appeal is refused.

2. No order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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