Tanwar v Aslam - [2022] NSWCA 149

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Tanwar v Aslam [2022] NSWCA 149
Hearing dates: 08 August 2022
Decision date: 08 August 2022
Before: Leeming JA
Decision:
1. Direct that the first and second respondents file and serve their submissions on the appeal on or before Monday 22 August 2022.
2. Stand the appeal over for directions in the Registrar’s list on Wednesday 24 August 2022 with a view to its being allocated a date.
3. Grant leave to the Workers Compensation Nominal Insurer to relist the appeal before me for further directions if in the next seven days it forms the view that Mr Ghazi or his estate should continue as a respondent to the appeal.
4. Remove the third respondent as a party to the appeal, this order having effect from Tuesday 16 August 2022. Note that the effect of such order will not be to create any issue estoppel or res judicata against Mr Ghazi or his estate.

Catchwords:
PRACTICE – parties – misjoinder – third respondent to appeal died after appeal commenced – appellant challenged findings that worker was injured and that appellant was employer – third respondent contingently liable in event that appellant established that third respondent was the deemed employer – neither appellant nor third respondent had paid workers compensation insurance premiums – Nominal Insurer liable to indemnify worker but entitled to recovery from employer – risk that estate of third respondent might contest Nominal Insurer’s entitlement to recover if not joined to this litigation – certainty that joinder of third respondent’s estate would involve expense and time – many circumstances in which joinder would serve no end – third respondent removed from proceedings

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 56
Probate Act 1898 (NSW), 69
Supreme Court Rules 1970 (NSW), Pt 78 r 55
Uniform Civil Procedure Rules 2005 (NSW), r 6.30, 7.10
Workers Compensation Act 1987 (NSW), s 145
Workplace Injury Management and Workers Compensation Act 1998 (NSW), Sch 1, cl 10

Cases Cited:
Tanwar v Aslam [2021] NSWPICPD 30

Category: Procedural rulings
Parties: Ramesh Tanwar (Appellant)
Farooq Aslam (First Respondent)
Workers Compensation Nominal Insurer (Second Respondent)
Abdul Hameed Ghazi (Third Respondent)
Representation:
Counsel:
Appellant in person
F D Curran (First Respondent)
R Hanrahan (Second Respondent)
Solicitors:
Carters Law Firm (First Respondent)
HWL Ebsworth Lawyers (Second Respondent)

File Number(s): 2021/00309660
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Personal Injury Commission

Citation:

[2021] NSWPICPD 30

Date of Decision:

5 October 2021

Before:

Deputy President Elizabeth Wood

File Number(s):

A1-5498/19

EX TEMPORE Judgment

LEEMING JA: The Registrar has referred this matter to me, on the basis that the appellant, Mr Ramesh Tanwar, should show cause why the third respondent, Mr Abdul Hameed Ghazi, should not be removed from the appeal. After a constructive exchange with each of Mr Tanwar, who appears in person, Mr Curran who appears for Mr Farooq Aslam who has been found to have been the injured worker, and Mr Hanrahan who appears…

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.

Continue reading Tanwar v Aslam

Details

AGLC: Tanwar v Aslam [2022] NSWCA 149
Case: [2022] NSWCA 149
Decision Date: 08 August 2022

CaseChat Overview and Summary

The appeal concerned a dispute regarding findings that a worker was injured and that the appellant was the worker's employer. The third respondent was contingently liable to indemnify the worker if the appellant succeeded in arguing that the third respondent was the deemed employer. Neither the appellant nor the third respondent had paid workers compensation insurance premiums, meaning the Nominal Insurer was liable to indemnify the worker but was entitled to recover from the employer. The appeal was heard in the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the third respondent should remain a party to the appeal, particularly given that the third respondent had died after the appeal commenced. The Nominal Insurer raised concerns that the estate of the third respondent might contest its entitlement to recover from the estate if the estate was not joined to the litigation. However, the Court also noted that joining the estate would inevitably involve expense and time, and that in many circumstances, such joinder would serve no practical purpose.

Leeming JA reasoned that the potential for the estate to contest the Nominal Insurer's recovery rights was a relevant consideration, but balanced this against the certainty of expense and time involved in joining the estate. The Court concluded that the joinder of the third respondent's estate was not necessary for the proper determination of the appeal and would not serve a useful purpose. Consequently, the Court ordered that the third respondent be removed as a party to the appeal. The Court also made directions regarding the filing of submissions by the first and second respondents and granted the Workers Compensation Nominal Insurer leave to relist the appeal for further directions if it considered it necessary for the estate to continue as a respondent.

Orders

Orders of the court

1. Direct that the first and second respondents file and serve their submissions on the appeal on or before Monday 22 August 2022.

2. Stand the appeal over for directions in the Registrar’s list on Wednesday 24 August 2022 with a view to its being allocated a date.

3. Grant leave to the Workers Compensation Nominal Insurer to relist the appeal before me for further directions if in the next seven days it forms the view that Mr Ghazi or his estate should continue as a respondent to the appeal.

4. Remove the third respondent as a party to the appeal, this order having effect from Tuesday 16 August 2022. Note that the effect of such order will not be to create any issue estoppel or res judicata against Mr Ghazi or his estate.

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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Medium Neutral Citation:	Tanwar v Aslam [2022] NSWCA 149
Hearing dates:	08 August 2022
Decision date:	08 August 2022
Before:	Leeming JA
Decision:	1. Direct that the first and second respondents file and serve their submissions on the appeal on or before Monday 22 August 2022. 2. Stand the appeal over for directions in the Registrar’s list on Wednesday 24 August 2022 with a view to its being allocated a date. 3. Grant leave to the Workers Compensation Nominal Insurer to relist the appeal before me for further directions if in the next seven days it forms the view that Mr Ghazi or his estate should continue as a respondent to the appeal. 4. Remove the third respondent as a party to the appeal, this order having effect from Tuesday 16 August 2022. Note that the effect of such order will not be to create any issue estoppel or res judicata against Mr Ghazi or his estate.
Catchwords:	PRACTICE – parties – misjoinder – third respondent to appeal died after appeal commenced – appellant challenged findings that worker was injured and that appellant was employer – third respondent contingently liable in event that appellant established that third respondent was the deemed employer – neither appellant nor third respondent had paid workers compensation insurance premiums – Nominal Insurer liable to indemnify worker but entitled to recovery from employer – risk that estate of third respondent might contest Nominal Insurer’s entitlement to recover if not joined to this litigation – certainty that joinder of third respondent’s estate would involve expense and time – many circumstances in which joinder would serve no end – third respondent removed from proceedings
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56 Probate Act 1898 (NSW), 69 Supreme Court Rules 1970 (NSW), Pt 78 r 55 Uniform Civil Procedure Rules 2005 (NSW), r 6.30, 7.10 Workers Compensation Act 1987 (NSW), s 145 Workplace Injury Management and Workers Compensation Act 1998 (NSW), Sch 1, cl 10
Cases Cited:	Tanwar v Aslam [2021] NSWPICPD 30
Category:	Procedural rulings
Parties:	Ramesh Tanwar (Appellant) Farooq Aslam (First Respondent) Workers Compensation Nominal Insurer (Second Respondent) Abdul Hameed Ghazi (Third Respondent)
Representation:	Counsel: Appellant in person F D Curran (First Respondent) R Hanrahan (Second Respondent) Solicitors: Carters Law Firm (First Respondent) HWL Ebsworth Lawyers (Second Respondent)
File Number(s):	2021/00309660
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Personal Injury Commission Citation: [2021] NSWPICPD 30 Date of Decision: 5 October 2021 Before: Deputy President Elizabeth Wood File Number(s): A1-5498/19