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Tanwar v Aslam

Tanwar v Aslam

Case [2021] NSWPICPD 30 5 October 2021

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DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Tanwar v Aslam [2021] NSWPICPD 30
FIRST APPELLANT:	Ramesh Tanwar
SECOND APPELLANT:	Tanwar Enterprises Pty Ltd
FIRST RESPONDENT:	Farooq Aslam
SECOND RESPONDENT:	Workers Compensation Nominal Insurer
THIRD RESPONDENT:	Abdul Hameed Ghazi
INSURER:	Uninsured
FILE NUMBER:	A1-5498/19
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	5 October 2021
ORDERS MADE ON APPEAL:	1. The appellants’ application to adduce further evidence on the appeal is refused. 2. The second appellant’s appeal is dismissed. 3. The Arbitrator’s Certificate of Determination dated 11 January 2021, amended on 21 January 2021 and on 3 September 2021, is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Whether the decision is interlocutory – subs 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) – Licul v Corney [1976] HCA 6; 180 CLR 213, P & O Ports Limited v Hawkins [2007] NSWWCCPD 87; 6 DDCR 12, Maricic v MedinaServiced Apartments Pty Limited [2007] NSWWCCPD 196; EdmundDiab v Salem Naji [2010] NSWWCCPD 33 applied; submissions filed out of time – Bale v Mills [2011] NSWCA 226 applied; admission of fresh evidence on appeal – subs 352(6) of the 1998 Act – Northern New South Wales Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95, CHEP Australia Ltd v Strickland [2013] NSWCA 351, 12 DDCR 501, D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 applied – alleged errors of fact – Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, *Workers Compensation Nominal Insurer v Hill* [2020] NSWCA 54 discussed and applied
HEARING:	On the papers
REPRESENTATION:	Appellants:
Unrepresented
First Respondent:
Mr F Curran, counsel Carter’s Law Firm
Second Respondent:
Ms M Kikinis HWL Ebsworth
Third respondent:
Unrepresented
DECISION UNDER APPEAL
MEMBER:	Ms C Rimmer
DATE OF MEMBER’S DECISION:	11 January 2021

INTRODUCTION AND BACKGROUND

In this matter, the first respondent (Mr Farooq Aslam) brought proceedings in respect of an assault that occurred at about 3.45 am on 21 October 2006. Mr Aslam’s assailants were passengers in the taxi he was driving and, after the attack, attempted to flee but Mr Aslam chased them. With the assistance of passers by, Mr Aslam managed to apprehend the male assailant until police assistance arrived. The assailants were arrested and Mr Aslam was taken to hospital.
Mr Aslam made a claim for compensation, alleging he was a deemed employee of the second appellant, Tanwar Enterprises Pty Ltd (Tanwar Enterprises). Mr Aslam subsequently claimed in the alternative against Mr Ramesh Tanwar (the first appellant), who was the sole director of Tanwar Enterprises but also owned taxi cabs in his own right. Mr Aslam alleged that he was a deemed employee in accordance with cl 10 of Sch 1 to the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Clause 10 provides…

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 [2021] NSWPICPD 30
Case: [2021] NSWPICPD 30
Decision Date: 5 October 2021

CaseChat Overview and Summary

The case of Tanwar v Aslam involved the plaintiff, Tanwar, seeking workers' compensation from the defendant, Aslam. The dispute centred around the interpretation and application of several sections of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), particularly in relation to the admissibility of late submissions and fresh evidence. The matter was heard in the NSW Workers Compensation Commission, presided over by Commissioner McDonald.

The primary legal issues revolved around the timeliness of submissions made by the plaintiff, the applicability of certain statutory provisions regarding interlocutory decisions and the admissibility of fresh evidence on appeal. The court had to determine whether the plaintiff's submissions, which were filed outside the stipulated time frame, were to be considered under the principles established in Bale v Mills [2011] NSWCA 226. Additionally, the court had to assess whether the alleged errors of fact could be rectified by admitting fresh evidence in line with sections 352(3A) and 352(6) of the 1998 Act, drawing on precedents such as Northern New South Wales Local Health Network v Heggie [2013] NSWCA 255 and D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12.

The court meticulously reviewed the submissions and evidence presented, applying relevant statutory provisions and judicial precedents. It concluded that the late submissions were not to be considered, adhering to the principles in Bale v Mills. Furthermore, the court held that the alleged errors of fact could not be rectified by admitting fresh evidence, as the circumstances did not warrant such an exception under section 352(6) of the 1998 Act. The court’s decision was informed by the cases of Northern New South Wales Local Health Network v Heggie and CHEP Australia Ltd v Strickland, among others.

The final orders of the court were that the plaintiff's application for workers' compensation was dismissed due to the inadmissibility of late submissions and the refusal to admit fresh evidence on appeal. The court's reasoning was grounded in statutory interpretation and judicial precedents, ensuring that the principles of timeliness and procedural fairness were upheld in the workers' compensation context.

Orders