Tanwar v Aslam - [2021] NSWPICPD 30

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 that, where a person enters into a contract of bailment in order to drive a taxi, the person is deemed to be an employee of the bailor. Mr Aslam did not own the taxi or the taxi plates. He paid a sum of money for each shift in which he drove the taxi.
Liability for Mr Aslam’s alleged injuries was denied by the Nominal Insurer, who became involved in the proceedings because neither Tanwar Enterprises nor Mr Tanwar held a workers compensation policy at the time of Mr Aslam’s injury. The matter came to arbitration in 2014 before Arbitrator Wynyard, as he then was. A late issue arose as to whether a third party was the bailor of the taxi Mr Aslam was driving at the time of the incident and the proceedings were discontinued.
Mr Aslam recommenced proceedings in 2019, in which Mr Abdul Ghazi was joined to the proceedings on the basis that Mr Tanwar and Tanwar Enterprises alleged that he was the bailor of the taxi. After protracted procedural delays in the matter, the proceedings came to arbitration before Arbitrator Rimmer (as she then was) on 15 October 2020 and 2 December 2020. The issues for determination were:
(a) whether, pursuant to cl 10 of Sch 1 of the 1998 Act, liability rested with Tanwar Enterprises, Mr Ramesh Tanwar or Mr Abdul Ghazi as the bailor of the taxi;
(b) whether Mr Aslam suffered injury to his lower back and right knee, as well as psychological injury, and
(c) whether Mr Aslam’s deemed employment was a substantial contributing factor to any injury pursuant to s 9A of the Workers Compensation Act 1987 (the 1987 Act).
The Arbitrator issued a Certificate of Determination on 11 January 2021, which she amended on 21 January 2021 to correct certain non-contentious errors. The Arbitrator determined that Mr Tanwar was the bailor of the taxi, Mr Aslam suffered injury to his right knee and psychological injury in the assault on 21 October 2006, and Mr Aslam’s employment was a substantial contributing factor to the injuries.
The Nominal Insurer wrote to the Commission on 18 June 2021, seeking further correction of non-contentious errors. On 3 September 2021, the Arbitartor issued a further amended Certificate of Determination, correcting those errors.
The Arbitrator’s determination is the subject of this appeal, which is brought by both Mr Tanwar and Tanwar Enterprises (the appellants).

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
The appellants indicated in their Application – Appeal Against Decision of Member (appeal) that they were content for the appeal to be determined on the papers, as did Mr Ghazi. Mr Aslam indicated in his Notice of Opposition to Appeal Against Decision of Member (opposition) that the matter ought to be afforded an oral hearing.
I conducted a telephone conference on 11 August 2021 in order to clarify certain procedural matters. At that telephone conference, Mr Aslam’s counsel indicated that, as the time for filing submissions had closed, he was happy for the matter to be determined without an oral hearing being conducted.
I have had regard to Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding a formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
The Certificate of Determination records that the Arbitrator determined that:
(a)    Mr Tanwar was uninsured in respect of workers compensation obligations;
(b)    the Nominal Insurer was liable to pay Mr Aslam’s workers compensation payments, and
(c)    Mr Aslam suffered a right knee injury and psychological injury in the assault but did not suffer from a lumbar spine injury.
The Arbitrator remitted the claim for whole person impairment to the then Registrar for referral to an Approved Medical Specialist for assessment of Mr Aslam’s whole person impairment. She deferred the claim for weekly payments and treatment expenses until after the Approved Medical Assessor had issued the Medical Assessment Certificate. Thus, while liability for the injuries was established, further issues for determination remained outstanding.
Subsection 352(1) of the 1998 Act provides for an appeal “against a decision in respect of the dispute by the Commission constituted by an Arbitrator” (emphasis added). A “decision” is defined in subs 352(8) to include “an award, interim award, order, determination, ruling and direction”. Subsection 352(3A) provides:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
The meaning of “interlocutory” in subs 352(3A) is undefined.
In Licul v Corney,[1] Gibbs J (as his Honour then was) said (footnotes omitted):
“The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutory is to be determined. One view - which was preferred by the Court of Appeal in Salter Rex and Co v Ghosh - is that the test depends on the nature of the application made to the Court. The other view which, since Hall v Nominal Defendant, should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties?”[2]
[1] [1976] HCA 6; 180 CLR 213 (Licul).
[2] Licul, [11].
The observations of the High Court as to what constitutes an interlocutory order provide some guidance but need to be considered in the context of the legislative and procedural framework of the Commission.
There are many Presidential decisions as to whether a decision is or is not interlocutory. It is not necessary to refer to each of them, however the following decisions assist in identifying the established principles applicable to this case.
In P & O Ports Limited v Hawkins[3] the issue decided by an Arbitrator (which was the subject of an application for leave to appeal) was whether the deemed date of injury in a ‘disease’ case was before or after 31 December 2001. The resolution of that issue dictated whether the worker’s lump sum entitlement was to be assessed by the AMS on the basis of the Table of Disabilities, or whole person impairment. The Arbitrator’s finding did not involve an actual award of compensation. Deputy President Roche concluded that the decision was of an interlocutory nature, observing that:
“The Arbitrator’s determination that the deemed date of injury was 20 July 2005 is more difficult. It amounts to a finding on a preliminary issue that is relevant to deciding if the Respondent Worker’s lump sum compensation is to be calculated under the Table of Disabilities or under the new WorkCover Guides for whole person impairment applicable to injuries sustained after 31 December 2001. The finding has not determined the parties’ rights or whether the Respondent Worker is entitled to compensation, as would be the case if a determination had been made on an issue such as injury, worker or substantial contributing factor.”[4]
[3] [2007] NSWWCCPD 87; 6 DDCR 12 (Hawkins).
[4] Hawkins, [44].
Acting Deputy President Snell (as he then was) applied Hawkins in Maricic v Medina Serviced Apartments Pty Limited,[5] saying:
“The Appellant Worker submits the nature of the Arbitrator’s determination is that ‘the injuries determined to have been suffered as a result of the appellant’s workplace accident have been finally and bindingly determined.’ Reference is made to both the decision in Hawkins, and the decision of the High Court in Licul v Corney. I accept this submission. It is consistent with the reasoning in Hawkins. It is the nature of the Arbitrator’s decision that the Appellant Worker could no longer succeed in recovering compensation of any description, on the basis of symptoms in his neck and left shoulder, on the basis they resulted from the pleaded incident. This decision on ‘injury’ is final and binding, and should not be characterized as ‘interlocutory’.”[6]
[5] [2007] NSWWCCPD 196 (Maricic).
[6] Maricic, [20].
The distinction was further examined by Deputy President Roche in EdmundDiab v Salem Naji,[7] where he determined:
“The Arbitrator’s order concerning remitter has been made following his determination of a question concerning liability, that is, the occurrence of injury to both the neck and back. The determination of those issues was made as required by the provisions of section 293(3) of the 1998 Act ...
The Arbitrator’s determination concerning the dispute as to the nature of the injury received by Mr Naji is such that, in the words of Gibbs J, it does ‘... finally dispose of the rights of the parties.’ Those findings are conclusive, and bind the parties and define the rights and liabilities of each concerning the various heads of entitlement to compensation benefits as provided by the Acts. The Appellant, on this appeal, challenges those findings of fact made by the Arbitrator concerning injury. In the circumstances, I conclude that the Arbitrator’s decision, including those findings of fact, is not one of an interlocutory nature within the meaning of section 352(8).”[8]
[7] [2010] NSWWCCPD 33 (Naji).
[8] Naji, [20]–[21].
In this matter, the Arbitrator has finally determined the rights of the parties in respect of the question of injury and of the party liable to meet Mr Aslam’s compensation entitlements. Those findings are conclusive and bind the parties, subject to the outcome of this appeal. Applying the above principles, I conclude, therefore, that the Arbitrator’s decision is not interlocutory in nature.

TRANSITIONAL MATTERS

After this case had been heard and determined and before the appeal in this matter was allocated to me, the New South Wales Workers Compensation Commission was abolished.[9] The matter became a matter within the Workers Compensation Division of the Personal Injury Commission by operation of the 2020 Act, from 1 March 2021.[10] The 2020 Act amended certain parts of the 1998 Act. Relevantly, the Arbitrators of the former Workers Compensation Commission became non-presidential members of the Personal Injury Commission, and thus the decision-maker involved in these proceedings became a member of the Personal Injury Commission. However, as at the time of the various orders made in the proceedings, the decision maker bore the title of Arbitrator, in this decision she will be referred to by her former title of “Arbitrator”.

PRELIMINARY MATTERS

[9] Clause 3 of Div 2 of Pt 2 of Sch 1 to the 2020 Act.

[10] Clause 12(1) of Div 2.3 of Pt 2 of the 2020 Act.

Submissions filed out of time

The appeal, with the appellants’ submissions attached, was lodged with the Commission on 19 February 2021. On 26 February 2021, a delegate of the then Registrar of the former Workers Compensation Commission issued a Direction directing the respondents to the appeal to lodge and serve their oppositions. The delegate provided the opportunity to the appellants to lodge any submissions in reply to the respondents’ submissions by 27 April 2021.
On 3 March 2021, the delegate of the President issued a further Direction, attaching the transcripts of proceedings before Arbitrator Rimmer which were recorded on 24 April 2020, 15 October 2020 and 2 December 2020. He advised that if the appellants wished to “make any supplementary submissions in respect of the transcripts” they were to do so by 17 March 2021.
Mr Aslam and Mr Ghazi filed oppositions to the appeal on or about 7 April 2021 and the Nominal Insurer emailed the Commission on the same day, indicating that it “neither opposes nor joins with the appeal and agrees to be bound by the decision of the Presidential Unit.”
On 17 March 2021, the appellants filed a thirty page document titled “Appellant’s Written Supplementary Submission” which contained submissions relating to each ground of appeal. In a telephone call to the Presidential Unit on 17 March 2021, Mr Tanwar indicated that he would be filing submissions on the transcript that day. The document made no reference at all to the transcript, or any additional matters raised following receipt of the transcript. The document was clearly not a response to the submissions made by the respondents, which had not yet been filed. The submissions, to a large extent, reflected the submissions made in the appeal application. The appellants provided no explanation as to why this document was filed or what its contents were intended to address.
The appellants provided lengthy written submissions annexed to the appeal application and availed themselves of the opportunity provided to make further submissions in reply to the respondents’ submissions on 27 April 2021. In that document, the appellants made extensive references to the transcript and responded to both Mr Aslam’s and Mr Ghazi’s appeal submissions. The appellants have had ample opportunity to put their case on appeal before the Commission in accordance with the timetable. It is not appropriate for a party to file additional material outside of the Commission’s timetable without leave of the Commission.[11] The document lodged with the Commission on 17 March 2021 is rejected.
[11] Bale v Mills, [2011] NSWCA 226 (Bale), [58]–[61].

Additional evidence

The appellants filed a large body of material attached to the appeal application, described as “new evidence.” It was clear to the delegate of the then Registrar that at least some of those documents were already in evidence in the arbitral proceedings and that the appellants had not made an application to adduce additional evidence. Consequently, the delegate issued a Direction on 19 February 2021 directing the appellants to comply with the former Practice Direction No 6, that is to:
(a)    identify precisely the documents to the Appeal Application which were not before the Arbitrator;
(b)    provide submissions in respect of each of those documents as to why those documents should be admitted on the appeal, and
(c)    provide reasons why the evidence was not in the proceedings before the Arbitrator.
The appellants responded on 26 February 2021, advising that the only document that was not before the Arbitrator was the document dated 24 November 2020 which was an “Interim Update Report” from Ms Charmaine Keir-Ward, a process server. Ms Keir-Ward informed that Mr Taseer Qasim, a witness in these proceedings, was unable to be located and could not be served with a summons to attend the arbitration.[12] The appellants explained that the document could not have been put before the Arbitrator because it did not come into their possession until after the arbitration.
[12] Annexures to the Appeal, p 370.
Section 352(6) of the 1998 Act provides:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
The Court of Appeal considered the Commission’s power to admit late evidence on appeal in Northern New South Wales Local Health Network v Heggie,[13] in which Basten JA said that:
“the basic purpose of the power in s 352(6) is to allow the Commission to admit further additional evidence which, if accepted, would be likely to demonstrate that the decision appealed against was erroneous.”[14]
[13] [2013] NSWCA 255;12 DDCR 95 (Heggie).
[14] Heggie, [66].
In CHEP Australia Ltd v Strickland,[15] Barrett JA discussed the test to be applied in consideration of whether the failure to admit late documents would cause a substantial injustice. At [30]–[31] of the decision, his Honour said:
“Counsel for the appellant submitted that the Commission misdirected itself in law in construing the ‘substantial injustice’ criterion in s 352(6). It was submitted that that criterion may be satisfied in circumstances where it is not possible to say that availability of new evidence would have produced a different result; and that the criterion will be satisfied if the evidence is compelling and might have influenced the outcome even though it cannot be said that it would certainly have done so.
That construction cannot be accepted. The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.”
[15] [2013] NSWCA 351; 12 DDCR 501 (Strickland).

In D’Orta-Ekenaike v Victoria Legal Aid,[16] the plurality, (Gleeson CJ, Gummow, Hayne and Heydon JJ) said:
“A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few narrowly defined, circumstances. ...
The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature and availability of appeals, rules about what points may be taken on appeal and rules about when further evidence may be called in an appeal (in particular, the so-called ‘fresh evidence rule’) are all rules based on the need for finality. As was said in the joint reasons in Coulton v Holcombe: ‘[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial.’”[17]
[16] [2005] HCA 12; 223 CLR 1 (D’Orta-Ekenaike).
[17] D’Orta-Ekenaike, [34] and [35].
In submissions made to the Arbitrator on 2 December 2020, the respondents’ counsel advised the Arbitrator that Mr Qasim could not be located for the purpose of being served with an order to attend the arbitration and be cross-examined on his evidence. No counter submission was made by any party and the matter proceeded. No application was made for an adjournment and the Arbitrator was clearly aware of the reason for Mr Qasim’s absence. In that context, I do not consider the document dated 24 November 2020 authored by Ms Keir-Ward to be of sufficient probative value that it ought to be admitted on the appeal.
In my view, the document could not be described as “compelling” evidence that, if admitted, would be likely to affect the outcome of the case.[18] I cannot see how the failure to admit this evidence would create a “substantial injustice” as is required before I can exercise my discretion in favour of Mr Tanwar. That document is not admitted.
[18] Strickland, [27]–[32].
The Commission’s file indicates that on 17 March 2021, 29 April 2021, and on 27 August 2021, Mr Tanwar or alternatively a person from the appellants’ office, contacted the Presidential Unit by telephone making enquiries about filing new evidence in the appeal. It was not until 8 September 2021 that Mr Tanwar advised the Commission and the parties that he had sent to the Commission’s agent (an agent appointed to collect and forward hard copy material directed to the Commission during the COVID-19 lockdown) fresh evidence in the form of a statement made by him on 27 August 2021, a statement from Ms Gurpreet Kaur (an employee of Tanwar Enterprises) dated 27 August 2021 and two USB sticks containing video footage and still photographs.
The timetable for filing submissions issued by the delegate of the former Registrar required the respondents in this appeal to lodge their submissions in reply to the appeal on or before 7 April 2021.The appellants had the opportunity to lodge submissions in reply by 27 April 2021. At the telephone conference held by me on 11 August 2021 I set a further timetable providing for the appellants to clarify their grounds of appeal on or before 27 August 2021 and for the respondents to address any issue arising from the clarification on or before 3 September 2021. At the telephone conference, I brought it to the attention of the appellants that the Arbitrator had made no adverse orders against Tanwar Enterprises and directed the appellants to advise whether Tanwar Enterprises sought to be removed from the proceedings. The Commission was advised that Tanwar Enterprises wished to remain as an appellant in the proceedings. At the telephone conference, I also advised the parties that the time for filing submissions had closed and that I would proceed to a determination once the further timetable had expired. I commenced my deliberations on 5 September 2021. Consequently, although the appellants had flagged the intention to file fresh evidence as early as March and April 2021, the fresh evidence was not filed until submissions were finalised and the merits of the appeal were being considered.
The fresh evidence consisted of videos downloaded from the social media platform “Facebook” posted by Humwatan News, Humwatan International, the President of the Pakistan Association of Australia and Media Talk News, posted on 10 occasions between 14 February 2021 and 6 June 2021. The fresh evidence also included photographs, also downloaded from the Humwatan News Facebook posts on 11 occasions between 4 February 2021 and 5 June 2021. In addition, video footage taken by Ms Kaur through a car dash-cam recorder on 49 occasions between 7 May 2021 and 16 July 2021, was included in the bundle of fresh evidence.
The appellants submit that they were reliant upon the Nominal Insurer to defend the case against them and did not have the resources to undertake investigations as to the veracity of Mr Aslam’s complaints. The appellants assert that Mr Aslam was not at all active on social media until after his case had been determined by the Arbitrator and the evidence is sufficient to show that the history provided to the medical experts was wrong and Mr Aslam’s claim for compensation is fraudulent. The appellants add that the posts disclose that Mr Aslam and Mr Qasim were friends, and thus the Arbitrator erred in considering that Mr Qasim was a “truly independent” and reliable witness. The appellants point to their failed attempts to have the opportunity to cross-examine Mr Qasim.
The appellants refer to the whole person impairment assessment conducted by Dr Akkerman, psychiatrist, in respect of the categories of self-care and hygiene, social and recreational activity, travel, concentration, social relationships and employability, and submits that the fresh evidence establishes that the history recorded by Dr Akkerman is contrary to the activities seen in the posts. The appellants submit that this evidence goes to show that Mr Aslam’s claim is fraudulent and demonstrates that Mr Aslam has no ongoing physical or psychological limitations.
In respect of the video surveillance undertaken by Ms Kaur, the appellants submit that the footage establishes that Mr Aslam was able to frequently drive (including reversing) a vehicle, move pot plants, sweep, water the plants, walk at pace, sprint, carry a pram, put a baby in a car seat, greet people, carry, bend and lift boxes and place them in the boot of his car, wheel a garbage bin, retrieve and carry bags from his car, break foam packing with his right knee, converse with and visit neighbours, vacuum and clean out his car, carry car batteries, and carry a baby. I have viewed the video footage and the social media posts. Some of the activities described by Ms Kaur are not readily apparent from the car dash-cam recording, particularly the footage recorded after dark.
It is not appropriate for me to further comment upon the material without giving the opportunity to each of the respondents to make submissions about that material and potentially to adduce lay, medical or other expert evidence addressing the matters alleged to be the subject of that material. I have given consideration to whether the material should be admitted, and, in my view, the material should not be admitted on the appeal.
The appellants submit that they were not in a financial position to obtain the evidence prior to the Arbitrator’s determination. The material sought to be admitted was obtained by the appellants’ own investigations and not through a third-party agent and there is no evidence that those investigations involved any financial outlay.
They further submit that they were reliant upon the Nominal Insurer to defend the case against them. The appellants were legally represented at the arbitration. A party is bound by the manner in which the case was run before the Arbitrator and the forensic choices made at arbitration.[19]
[19] University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481, 483.
A substantial part of the material consisted of video footage and photographs, said to be of Mr Aslam, taken in February, March, April, May and June 2021, and was reasonably available to, or could have been obtained by the appellants at that time. Presumably the material recorded in February, March and April was the “fresh evidence” the appellants had in mind when they contacted the Commission on 17 March 2021 and on 29 April 2021. There is no explanation from the appellants as to why the material was not lodged prior to the expiration of the period during which submissions could be made and was in fact lodged, not only after the submissions had closed, but also after I had commenced my deliberations.
The appellants were well aware of those time frames. When the appeal was commenced, the delegate of the President set out a procedural timetable in the matter which provided for the respondents to the appeal to file their oppositions to the appeal and make submissions. The appellants were provided with a date by which they were to file submissions in reply. At the telephone conference held by me on 11 August 2021, I notified the parties that submissions were closed, and the matter would progress to a determination, pending amendment of the appellants’ first two grounds of appeal, which occurred within seven days of the telephone conference. It is contrary to principle that, except in exceptional circumstances, a party should be allowed to have further evidence admitted after consideration of the appeal has commenced.[20]
[20] Bale, [58]–[61].
The admission of the documents would cause substantial prejudice to Mr Aslam and potentially Mr Ghazi. If the evidence were admitted, each party would have to be afforded the opportunity to address the evidence sought to be tendered by Mr Tanwar and what is observed in the video footage. It is likely that they would seek to adduce evidence in response. A failure to afford the respondents those opportunities would amount to a denial of procedural fairness. That process, if allowed, would also amount to a re-hearing in contravention of s 352(5) of the 1998 Act and would involve further extensive delay in the resolution of the already protracted route this matter has taken.
The Arbitrator’s determination was a determination in relation to liability. That is, who or what entity was the bailor of taxi T-1078, and whether Mr Aslam suffered injuries to his right knee and back, and psychological injury as a result of the incident on 21 October 2006. The Arbitrator referred the injuries found for assessment of any whole person impairment by an Approved Medical Specialist and deferred the question of an entitlement to weekly compensation and treatment expenses until after that assessment. I do not consider, therefore, that how active Mr Aslam may be in a social or domestic environment in 2021 is relevant to whether Mr Aslam suffered a psychological injury, or a right knee injury in 2006. The material that may show activity inconsistent with Mr Aslam’s ongoing complaints could, of course, be relevant to the determination of his whole person impairment by the medical assessor but that is not a matter relevant to the appeal. Nor is the matter of Mr Aslam’s claim for weekly payments. Those matters are yet to be determined. Given those matters are pending in the proceedings below, the parties may avail themselves of the opportunity to adduce that evidence in the proceedings below, for example in accordance with r 33 of the Personal Injury Commission Rules 2021, subject, of course to whether the evidence was legally obtained or otherwise admissible.
The appellants submit that the evidence goes to establish that Mr Aslam’s evidence was not truthful. I have summarised the Arbitrator’s reasons below. The Arbitrator did not decide the issue of injury on the basis that Mr Aslam’s evidence was truthful. The Arbitrator acknowledged that there were inconsistencies in Mr Aslam’s evidence and looked for corroborative evidence in the material before her. She considered that more weight should be afforded to the contemporaneous accounts and reports and that she should also take into account the medical evidence that recorded that Mr Aslam had difficulties with his memory. She said that, for those reasons, she placed less weight on the later recollections and histories recorded in the later medical reports. She found support for the allegations of injury recorded in the medical evidence within months after the injury, including Dr Mahony’s report provided within three months of the injury. In respect of Mr Aslam’s psychological injury, she took into account that the first evidence of Mr Aslam being diagnosed with a psychological condition was the evidence Dr Anwar in Lahore on 7 September 2007. That is, a record made which was not recorded in a medico-legal context and was made well before Mr Aslam made a claim for compensation.
The Arbitrator also looked for evidence that was corroborative evidence before determining the issue of the bailment of the taxi. She had the opportunity to observe the oral evidence of Mr Ghazi, whose evidence she found to be truthful and reliable and corroborated the evidence of Mr Aslam. In addition, the evidence of Mr Qasim was corroborated by other evidence. Thus the issues determined in Mr Aslam’s favour did not rise and fall on Mr Aslam’s evidence.
The appellants argue that the material discloses that Mr Qasim and Mr Aslam were friends and therefore Mr Qasim could not be considered a truly independent witness, as found by the Arbitrator. If it is accepted that the material is evidence that Mr Qasim and Mr Aslam attended the same cultural community events and were acquainted, it is difficult to say that such an observation was contrary to the evidence before the Arbitrator. The statement evidence clearly indicated that they were known to each other in 2006.
For the above reasons, applying the authorities of Heggie, Strickland and D’Orta-Ekenaike referred to above, I do not accept that the admission of the additional evidence, if accepted, would be likely to demonstrate that the decision appealed against was erroneous, as required by s 352(6) of the 1998 Act.
The material sought to be relied upon by the appellants is, therefore, not admitted in the appeal.

THE EVIDENCE

The lay evidence

Mr Farooq Aslam

Mr Aslam provided a number of statements in respect of his claim for compensation. The first statement was undated and unsigned but was endorsed as having been witnessed on 10 April 2008.[21] Mr Aslam stated that he had been employed as a taxi driver with Combined Taxis for two and a half years, commencing in November 2005. He stated that he worked mainly for Mr Tanwar, who owned several taxis which operated under the Taxis Combined group. He said Mr Tanwar provided him with a Taxis Combined uniform and he usually worked for Mr Tanwar on night shift, five nights per week commencing at 3 pm. He would pick up the taxi from Mr Tanwar’s home or from the BP service station in Silverwater. Mr Aslam advised that, when he first started to work for Mr Tanwar, he would pay Mr Tanwar $135 per shift, which was the rent for the taxi, and any additional money that he received during the shift he was able to keep. Mr Aslam said that during this time, he did not work for anyone else, except for a short period from the end of 2005 until 2006. He said he returned to work for Mr Tanwar in about June 2006, at which time Mr Tanwar changed the amount he was required to pay for the taxi to various amounts according to the day of the week worked, which was a verbal agreement.
[21] Application to Resolve a Dispute (ARD), pp 103–109.
Mr Aslam referred to the injury suffered by him during his shift on 21 October 2006, in which he was assaulted. He said that he suffered injury to his left eye, neck and face, and that when he chased after and caught the offenders, he was kicked in the knee and hit in the stomach. Mr Aslam said that he was taken by ambulance to Sydney Hospital where he was admitted and stayed for a day and a half. He advised that he attempted to return to work and worked from 7 November 2006 for 10 shifts, but his knee became too painful.
Mr Aslam said that after he was discharged, he received treatment from Mr Jim Haddad, general practitioner, and Dr Grahame Mahony, general surgeon. Mr Aslam complained that he was unable to work until 14 June 2007, when he returned to taxi driving with a different employer. He recorded that, at the time of making the statement, he continued to drive a taxi for a Mr Dennis Papadatos. He stated that since the injury, he had been unable to work five shifts on a full time basis and his main problem was his right knee.
Mr Aslam denied having any prior injuries to his face, neck or eye, but did suffer a previous injury to the knee, which was on the right side, rather than the left, and was a different injury. Mr Aslam referred to the difficulties he experienced in trying to make a claim for workers compensation.
In a statement dated 27 March 2012,[22] Mr Aslam described the previous injury to his right knee in June 2004 while working for an earlier employer, which he further aggravated because of the nature of the work with that employer. He said he had time off work and consulted a specialist, who performed an arthroscopy in April 2006. He said he eventually ceased that employment when he obtained a taxi driver’s licence and commenced driving taxis. Mr Aslam advised that the pain in the right knee continued.
[22] ARD, pp 110–112.
Mr Aslam indicated that he commenced work with Mr Tanwar in October 2006, although he had previously worked for Mr Tanwar from December 2005 to January 2006. Mr Aslam said that he would usually pick up the taxi from Mr Tanwar’s home or from the BP service station in Silverwater, where he would have a conversation with Mr Tanwar.
Mr Aslam confirmed his earlier statement as to the arrangement between him and Mr Tanwar, who owned several taxis which were driven under the umbrella of the Taxis Combined fleet. He described the assault on 21 October 2006 and its aftermath. He complained of injury to the left eye, teeth, neck, shoulders and right knee. He said that he continued to experience pain in the neck, shoulders and back, and had difficulty with his left eye, as well as memory loss, poor concentration, dizziness and headaches. He added that he was receiving treatment for anxiety and depression, and continued to experience pain in the right knee, which was in a different location to the pain he previously experienced after the original knee injury.
Mr Aslam advised that he continued to work on and off as a taxi driver, with difficulties, but ceased work altogether on 20 December 2011 because of his injuries with both the previous employer and the appellant.
Mr Aslam made a further statement dated 11 September 2012,[23] in which he provided a detailed account of the right knee injury that occurred in the course of his employment with the previous employer. Mr Aslam also referred to a statement made by Mr Tanwar dated 18 April 2008. He denied having had an arrangement to drive a taxi on 21 October 2006 with any person or entity other than Mr Tanwar. He said that he had never heard of a Mr Millard or a person called “Hazzi.” He added:
“Moreover, I say that with respect to each shift in October 2006 and at all other times there would be a log or record completed containing details as to mileage and other matters and [Mr Tanwar] and I would sign off on that daily record and [Mr Tanwar] would keep the original and I would be given a copy.”[24]
[23] ARD, pp 113–115.
[24] Statement dated 11 September 2012, ARD, p 114.
Mr Aslam provided a detailed account of the assault that occurred on 21 October 2006 and the physical and psychological difficulties he experienced thereafter, including his inability to continue working beyond 20 December 2011.
Mr Aslam’s additional statement dated 26 August 2015[25] does not address any further matters relevant to this appeal.
[25] ARD, pp 116–117.

Mr Aslam also gave oral evidence at the arbitration on 15 October 2020.[26] He indicated that he injured his right knee in the incident on 21 October 2006 when he was attempting to catch his assailant, and while holding one of them, the other assailant hit his leg. He said that he gave the keys to the taxi to his wife and then returned them to Mr Tanwar, who had come to visit Mr Aslam at his home.
[26] Transcript of proceedings, Aslam v Ramesh Tanwar & others [2021] NSWWCC 13, 15 October 2020 (T1), T42.1–T65–30.
Mr Aslam agreed that he had provided a copy of the taxi driver’s daily worksheet dated 21 October 2006 to his legal representatives. Mr Aslam confirmed that he had written in the document the odometer reading of 490,987 at the beginning of his shift. It was put to Mr Aslam that the daily worksheet was a false document. Mr Aslam responded that he had written the entry in the document, that Mr Tanwar had taken this sheet from him when he came to his home and picked up the taxi, and that there was an obligation on the taxi operator to keep those worksheets for six years. Mr Aslam queried that, if the document was incorrect, where was the correct worksheet? Mr Aslam asserted that Mr Tanwar would sign on the document before each shift and leave the document in the taxi.

Mr Ramesh Tanwar

Mr Tanwar also provided a number of statements which were all ultimately admitted into evidence.
In a short statement dated 18 June 2018, which was not attached to an Application to Admit Late Documents (AALD) but was admitted into evidence, Mr Tanwar advised that he was the sole director of the company Tanwar Enterprises. He said he owned and operated three taxis prior to 2005 and then in about November 2005, he purchased more taxis. He added, however, that at the time he was having family issues and had other commitments, so he arranged with Mr Abdul Ghazi to lease taxi T-1078 to Mr Ghazi for a fixed weekly payment. Mr Tanwar explained that Mr Ghazi would hire the vehicle to a driver of his choice, negotiate with the driver the amount to be paid, and arrange what shifts the drivers would work.
Mr Tanwar said that he was aware that Mr Aslam hired taxi T-1078 on 21 October 2006, but was not aware of what shifts were arranged, or what payment would be made by Mr Aslam. He said he had no discussions at all with Mr Aslam, who he had not met during 2006. Mr Tanwar added that, on the night of the assault, Mr Aslam had only hired the taxi until 3 am and the assault occurred at 3.45 am. Mr Tanwar observed that Mr Aslam would have been stressed at that time, because a weekend was the busiest period and was when most disputes and assaults took place. Mr Tanwar said that when Mr Aslam returned to driving taxis in November 2006, all of the arrangements were made between Mr Aslam and Mr Ghazi, as they had been done previously.
Mr Tanwar made a further statement dated 26 June 2018.[27] Mr Tanwar advised that, in or around 2005, he met Mr Ghazi, who used to own and operate taxis, but wished to sell the taxis while remaining as the taxi operator. Mr Tanwar said that he purchased the taxis from Mr Ghazi on the basis that Mr Ghazi would continue to operate them as a bailor. He said that the manner in which the taxis were operated did not change after he became the registered owner. He asserted that Mr Ghazi:
(a)    mainly used the same drivers who had been driving the taxis prior to the sale;
(b)    negotiated and collected the drivers’ payments for bailment of the taxis;
(c)    arranged the shifts and changeovers, which took place at the BP service station at Silverwater;
(d)    provided the drivers’ worksheets, visiting cards and paper rolls for the Eftpos machine, and
(e)    maintained and organised the registration requirements for all the taxis, using the same mechanic as he had used prior to selling the taxis.
[27] The Nominal Insurer’s reply, pp 42–45.
Mr Tanwar described Mr Ghazi’s actions as those of a bailor. He stated that Mr Ghazi concurrently provided the same services to other taxi owners who were attached to the BP service station at Silverwater. He said that the drivers would not be aware who owned the taxis Mr Ghazi was dealing with. In particular, Mr Aslam would not have known that Mr Tanwar was the owner of the taxi that Mr Aslam drove.
Mr Tanwar reiterated that, in October 2006, the bailment arrangement for the taxi driven by Mr Aslam was between Mr Aslam and Mr Ghazi and Mr Aslam would not have been aware that he (Mr Tanwar) owned that taxi.
Mr Tanwar further asserted that, during 2006, Mr Aslam had not given him any worksheets and had not contacted him in relation to bailment matters at all. He said he did not know about the assault on 21 October 2006 until he received correspondence from Mr Aslam’s solicitor about a year after the event. He said he was not aware of Mr Aslam’s absence from work after the incident.
Mr Tanwar filed an undated statement in the Commission on 21 February 2020 which was not under cover of an AALD) and which the Arbitrator referred to as the “127 page statement,”[28] as it consisted of a statement by Mr Tanwar together with numerous annexures to the statement, totalling 127 pages. The annexures included copies of correspondence passing between Tanwar Enterprises and Carters Law Firm (Mr Aslam’s solicitors) and a letter sent by Remington and Co Solicitors (on behalf of Tanwar Enterprises) to Carters Law Firm. The correspondence included:
(a)    a letter of claim for workers compensation made by Mr Aslam, with various medical and radiological reports attached;
(b)    letters from Tanwar Enterprises disputing the claim and disputing that Mr Aslam was ever employed by that company;
(c)    daily worksheets and similar documents allegedly showing an employment relationship between Tanwar Enterprises and Mr Aslam;
(d)    correspondence to and from the Commissioner of Police alleging that those documents were fraudulent, and
(e)    various statements in support of the allegation of fraud.
[28] Certificate of Determination, Aslam v Ramesh Tanwar & others [2021] NSWWCC 13 (reasons), [159(e)].
The statement and annexed documents were eventually filed under cover of an AALD dated 23 October 2020. The attachments to the statement, where relevant, are discussed below.
On 21 February 2020, Mr Tanwar filed an additional statement which was also not annexed to an AALD. This statement was dated 21 February 2020 and was subsequently lodged in the Commission under cover of the AALD dated 23 October 2020.[29] Mr Tanwar repeated his previous evidence about the agreement for Mr Ghazi to act as the bailor of the taxis, which included taxi T-1078, although Mr Tanwar was the registered owner. Mr Tanwar stated again that Mr Aslam would not have been aware of the fact that Mr Tanwar owned the taxi. He said that there was no contact between him and Mr Aslam and he did not know about the assault on 21 October 2006 until many years later, when Mr Aslam made a claim for compensation. Mr Tanwar attached various witness statements, which are discussed below. Mr Tanwar also annexed copies of “Taxi Driver’s Daily Worksheets,” which had been filed in previously discontinued proceedings in the Commission. He asserted that that evidence showed that Mr Aslam drove for Tanwar Enterprises so that the evidence confirmed that on 20 October 2006, taxi T-1078 was not bailed out by Mr Tanwar himself.
[29] AALD dated 23 October 2020, pp 128–132.
Mr Tanwar filed two further statements attached to the AALD dated 23 October 2020, both bearing the date 8 May 2020. The Arbitrator differentiated those statements by reference to the number of paragraphs contained in each.
In the statement consisting of 35 paragraphs,[30] Mr Tanwar responded to a statement made by Mr Ghazi dated 20 April 2020. He advised that in 2005, he owned three taxi registration plates and leased three others. He said he owned and was the accredited operator of all six taxis. Mr Tanwar stated that in November 2005, he purchased five taxis from Mr Ghazi and took over the taxi plate leases from Taxis Combined for those vehicles. He said that he became the registered owner and accredited operator and lessee of those additional taxis, which included taxi T-1078.
[30] AALD dated 23 October 2021, pp 176–185.
Mr Tanwar asserted, however, that Mr Ghazi sold those taxis to him because he had legal and financial problems, and only did so on the condition that Mr Ghazi was to continue to operate those taxis. Mr Tanwar said that, as a consequence, he sub-leased the taxis back to Mr Ghazi for a fixed amount of approximately $1,300 per week, which Mr Ghazi paid to Mr Tanwar in the form of cab charge dockets, cash and Eftpos transactions. He said these were paid directly from the driver into Mr Tanwar’s network account with Taxis Combined as he was the registered owner and accredited operator of the taxis. He added that, if there was any shortfall in those deposits, Mr Ghazi would make up the balance of the agreed $1,300 in cash, or, if the deposits exceeded $1,300, Mr Tanwar would reimburse Mr Ghazi.
Mr Tanwar asserted that Mr Aslam never contacted him after the incident on 21 October 2006, and the first he heard about the claim was through Mr Aslam’s solicitor. Mr Tanwar attached telephone records purporting to show an absence of telephone calls between him and Mr Aslam.
Mr Tanwar confirmed his earlier evidence that Mr Ghazi would attend to all of the various responsibilities in relation to the arrangements with the drivers of those vehicles. Mr Tanwar said that he, as the registered owner, accredited operator and lessee of those taxis, was responsible for the registration, insurance and upkeep of the vehicles and any requisite payments to Taxis Combined.
Mr Tanwar asserted that between 2005 and January 2007, Mr Ghazi had complete and continuous control over all of the arrangements for taxi drivers in respect of taxi T-1078. Mr Tanwar denied that there were any arrangements at all between him and Mr Aslam.
Mr Tanwar said that, following a search of his records, he found book-keeping records for a number of taxis, but did not have records for the five taxis he acquired from Mr Ghazi (which included taxi T-1078). He said the absence of records for those five taxis was because of his arrangement with Mr Ghazi, who was responsible for the record keeping for those bailments. Pages from handwritten exercise books were annexed, which he asserted were the records kept by him of the taxis he operated, and which did not include the taxis he bought from Mr Ghazi.
Mr Tanwar disputed the assertion by Mr Ghazi that Mr Ghazi did not bail the taxi T-1078 to Mr Aslam. Mr Tanwar referred to conversations which he said he had with Mr Ghazi in which Mr Aslam’s compensation claim was discussed and Mr Ghazi acknowledged that he knew Mr Aslam and was aware of the assault, but disputed that Mr Aslam was injured. Mr Tanwar referred to his earlier statements and the evidence of Ms Shirley Tanwar and Ms Gurpreet Kaur.
Mr Tanwar repeatedly disputed that he had ever employed Mr Ghazi and disputed that he had ever provided any remuneration in the form of salary or other payments or benefits in favour of Mr Ghazi that would point to an employment relationship. Mr Tanwar agreed, however, that Mr Ghazi arranged drivers and rosters for the taxis because that was the main obligation of a bailor. He pointed out that Mr Ghazi’s assertion that he worked for him from the Petersham depot in February 2006 and managed thirteen taxis on Mr Tanwar’s behalf was inconsistent with the fact that Mr Tanwar purchased a service station at Lewisham in May 2006 and even after that time, Mr Ghazi mainly operated out of the BP service station at Silverwater. Mr Tanwar further disputed that Mr Ghazi managed thirteen taxis on his behalf.
Mr Tanwar referred to Mr Ghazi’s assertion that he had not met the drivers or taken their details. He said this assertion was inconsistent with the fact that it was not practical and was in fact illegal to arrange for drivers and their rosters without having met them or collected their details, according to the mandatory requirements of the Department of Transport. Mr Tanwar said that it was mandatory for operators and bailors to check the identities of drivers, keep a record of their drivers’ licence and their authority to drive a taxi and ensure those were current and not suspended or cancelled, before a taxi could be bailed to them. Mr Tanwar said that, in those circumstances, it was almost impossible for Mr Ghazi not to have met Mr Aslam.
Mr Tanwar disputed Mr Ghazi’s assertions that he was not a bailor for Mr Tanwar in respect of taxi T-1078, or in fact any taxi owned by him, but agreed that Mr Ghazi ceased operating taxis for him in late December 2006 or in early 2007. Mr Tanwar also disputed the conversations reported by Mr Ghazi as conversations between him and Mr Ghazi. He referred to his earlier statements and the statements from Mr Abhay Tanwar (his son) and Ms Shirley Tanwar (his wife), and disputed the assertions made by Mr Ghazi in [26]–[36] of his statement dated 20 April 2020.
In an 11 paragraph statement dated 8 May 2020, Mr Tanwar again disputed that Tanwar Enterprises had ever employed Mr Ghazi, and denied that Mr Ghazi began working from Petersham in February 2006 managing 13 taxis on behalf of that company.[31]
[31] AALD dated 23 October 2021, pp 204–206.
Mr Tanwar also gave oral evidence and was cross-examined at the arbitration hearing on 15 October 2020 and again on 2 December 2020.[32] He said that he owned and operated some taxis and some were also owned by Tanwar Enterprises. He further confirmed that, as at 17 July 2006, he was the owner of taxi T-1078.
[32] T1, T106.12–T148.8; Transcript pf proceedings dated 2 December 2020 (T2), Aslam v Ramesh Tanwar & others [2021] NSWWCC 13, T9.13–T30.29.
Mr Tanwar stated that the unsigned statement of Mr Ghazi, as well as the various witness statements relied upon by him were typed by his son, Mr Abhay Tanwar, following a meeting with the witnesses or otherwise the witnesses were contacted by telephone. He said the evidence was collected by either his son, a member of staff from Tanwar Enterprises or by himself.
Mr Tanwar agreed that, during 2005 and 2006, he owned and was the registered operator of thirteen taxis. He admitted that he did not have in place workers compensation insurance covering the drivers of the taxis. Mr Tanwar said that in October 2006, he was unaware that as an owner of a taxi, he may have been liable for any injury suffered by a driver of one of his taxis. He then stated that his understanding was that as an owner he was responsible but found out from his legal representatives in 2018 that, even though he was the owner, because he did not the operate the taxi as a bailor, he was not liable. Mr Tanwar confirmed that in 2006, he owned taxi T-1078, and contracted with Mr Ghazi who, in turn, engaged Mr Aslam to drive the taxi. Mr Tanwar denied that assertion was concocted and false.
When asked about why Mr Tanwar had not, until recently, mentioned the arrangement, and involvement with Mr Ghazi, Mr Tanwar explained that he did not understand about the liability of workers compensation, he was required to pay his own legal costs and he did not want to name Mr Ghazi. He said that once he found out that he was not responsible for the workers compensation liability, he sought to have Mr Ghazi joined to the proceedings. In response to the proposition put to Mr Tanwar that in about 2008 and 2012 he put forward Mr Millard as the bailor, Mr Tanwar said that he was not involved in the operation of the taxi at all and at the time was not sure whether taxi T-1078 was bailed to Mr Aslam by Mr Millard or Mr Ghazi.
Mr Tanwar was shown the driver’s daily worksheet, which was in evidence and was endorsed with a stamp “Tanwar Enterprises.” Mr Tanwar denied that either he, or his company, had such a stamp. He said that in about 2008 or 2009, there was a company stamp which the company still used, but it was an oval shape.
In response to further cross-examination, Mr Tanwar denied that in the 2012 proceedings brought by Mr Aslam, the defence of bailment was abandoned. Mr Tanwar asserted that it was not abandoned, it was simply the case that he and his company did not want to continue in relation to that particular point.
Mr Tanwar confirmed that of the thirteen taxis in his fleet, some were owned by his company and some were owned by him. He stated that he personally owned taxi T-1078 and paid the registration and insurance for that taxi. Mr Tanwar further confirmed that, when Mr Ghazi sold him the five taxis, Mr Ghazi continued to operate those taxis, including taxi T-1078. Mr Tanwar said that Mr Ghazi was operating almost all of his taxis. He then corrected himself and stated that Mr Ghazi operated some of the taxis and he operated others until in or about 2007 or 2008, when Mr Ghazi left, Ms Kaur became the bailor of all of the taxis through Tanwar Enterprises. Mr Tanwar said that after Mr Ghazi left, the mechanic he generally used, and also his wife, operated the taxis.

Mr Abdul Ghazi

The Nominal Insurer annexed to its reply a copy of a document described as a statement by Mr Ghazi bearing date 18 June 2018. The document was unsigned and not witnessed.[33] The relevant paragraphs of that document said as follows:
[33] Nominal Insurer’s reply, pp 37–41.
“1.     …
2.     My name is Hamid Ghazi, I have owned and operated taxis for a period of more than 20 years.
3.     Due to my personal issues and financial difficulties, I could not continue to own my taxis. Therefore, I sold all my taxis to different owner/operators. One of those owners was Mr Tanwar.
4.     After selling taxis to Mr Tanwar, Mr Tanwar tried to operate them but it was very difficult for him due to his family and other commitments, therefore Mr Tanwar leased some of his taxis to me on a weekly basis. One of these taxis was T-1078.
5.     As the operator of T-1078 it was my responsibility to bail/hire the taxi to the different drivers and make the necessary arrangements with them for the shifts they wish to drive. It was also my job to find drivers, discuss payment (Pay Ins) charges/rate, arrange the drivers for morning shift and afternoon shift, discuss with the drivers about general conditions of their bailment and arrange any repairs and maintenance as required for the taxi.
6.     One of these drivers was Faroq Aslam. I remember meeting Aslam at the end [of] 2005 at our BP Service Station at Silverwater. During our conversation he informed me that he wanted to work night shift Monday to Friday. We discussed and agreed on a fixed payment for the 5 days. I did not supply him with a uniform as he advised me he already had one.
7.     …
8.     At the start I made arrangements with Aslam to pay his Pay-ins on a weekly basis. Despite this after a week he started making excuses to not pay on time and consequently became behind in his Pay-ins.
9.     After working at the end of November and December 2005 (busiest period of the year for taxi drivers to work) he stopped hiring the taxi from me in early 2006.
10.    ln June or July 2006 Aslam came back and wanted to hire the taxi on a bailment.
11.    This time I had to change my previous bailment arrangement regarding the Pay-ins. This was because while he was working in 2005, I made the same Pay-ins rate for Monday to Friday but he always found an excuse not to work on Monday or Tuesday (quiet earning days for taxi drivers). Aslam's Pay-ins were different for each day. He continued to drive shifts 3 pm – 3am Monday to Friday.
12.    During this period he was becoming more behind with his pay-ins. He was always aggressive and ready to pick a fight with anybody. Most of the time he kept working over his bailment period and was late frequently and due to this reason he had many fights with the morning shift taxi driver. Despite all these problems I continued to bail the taxi to him for the simple fact that there was a shortage of taxi drivers for night shift in Sydney.
13.    ….
14.    On the 21st October 2006 Aslam bailed the Taxi from 3pm to 3am his shift was to finish at 3 am. Due to his usual habit he was still driving at 3:45 am in the city well past his bailement [sic]/changeover time.
15.    About two weeks after Aslam’s assault incident he started driving the taxi for me as normal.
16.    Aslam did not work in January 2007 as the busy period was over and for this same reason he did not drive the taxi in January 2006 as well. I found out that he had gone overseas, however he did not pay me for many weeks Pay-ins before he left for overseas.
17.    After a few months he returned to Australia. I tried to contact him by telephone and went to his house on many occasions but was unable to locate him. Till date he owes me 3-4 weeks Pay-ins which is approximately $2,025.”

The foundation for the acceptance of Mr Aslam’s evidence and that of his witnesses is discussed above. For those reasons, there is no error disclosed in the Arbitrator’s reasons for preferring that evidence and the submission has no merit.
On the facts found by the Arbitrator, Mr Ghazi did not enter into an agency agreement with Mr Tanwar or Tanwar Enterprises but was an employee of Tanwar Enterprises, being remunerated at the rate of $650 per week.
The facts in Bolton were that Mr Ibrahim paid the owner of the taxi (Mr Dimitrikakis) $1,400 per week for the use of the taxi, with the owner paying all outgoings on the vehicle except for the use of fuel, which was the driver’s responsibility. In turn, Mr Ibrahim bailed the taxi to Mr Bolton (the driver). Mr Bolton was not aware of the existence of Mr Dimitrikakis, or his ownership of the vehicle, and all his dealings were through Mr Ibrahim.
In the present case, the Arbitrator observed:
“In Bolton Armitage J held that the bailment contract for the purposes of Sch 1 cl 10 of the 1998 Act was only between Mr Ibrahim as bailor and Mr Bolton as bailee, and that even if Mr Dimitrikakis was the undisclosed principal of Mr Ibrahim, this was insufficient in law, having regard to relevant legal doctrines under the law of agency, to make Mr Dimitrikakis the bailor under the bailment contract, and thus the deemed employer of Mr Bolton.
By contrast, the contract of bailment in the present case was at all stages between Mr Tanwar as bailor and Mr Aslam as bailee and did not include Mr Ghazi as a party to such contract. No issue in relation to liability of an undisclosed principal arises. Mr Ghazi was merely receiving $650 per week in relation to assisting Mr Tanwar … in some ancillary aspects of Mr Tanwar’s business which involved various taxi cabs. As Mr Campbell fairly recognised … a payment of $650 per week would not be consistent with [the] type of arrangement as in Bolton.”[120]
[120] Reasons, [367]–[368].
As discussed above, the Arbitrator’s findings of fact were open to her on the evidence. Thus, the facts as found by the Arbitrator were clearly distinguishable from the facts in Bolton and the Arbitrator correctly explained that distinction. The first appellant has failed to show error on the part of the Arbitrator in distinguishing that authority and this appeal ground fails.

Ground Seven

The first appellant asserts error on the part of the Arbitrator in rejecting the evidence of Ms Tanwar and Mr Tanwar’s son. He submits that the Evidence Act provides that family members are entitled to give evidence.
The Arbitrator reasoned firstly that Mr Tanwar’s son was not an investigator but was involved in the typing of numerous witness statements in relation to the matter. The fact that he prepared those witness statements in circumstances where he was also a witness of itself compromised his independence. The first appellant’s argument that Mr Tanwar’s son was a civil engineer and thus unaware of the business of operating taxis is irrelevant as to whether his evidence was given independently of his relationship with Mr Tanwar, or whether his evidence should be accepted as to what Mr Ghazi said to the Tanwar family about the bailment arrangements when they met.
The first appellant submits that if the Arbitrator inferred that Mr Tanwar’s son was lying, then the same should be said about Mr Ghazi’s statement, which was drafted by his daughter, and Mr Aslam’s statement, which was drafted by his legal representative. This submission cannot be accepted. It is often the case that evidence is adduced in statement form prepared by legal representatives and signed by the deponent. The evidence of Mr Tanwar’s son, which was not accepted by the Arbitrator, was that Mr Ghazi purportedly told Mr Tanwar and his son certain things and Mr Tanwar’s son prepared a document on the basis of notes taken at that meeting. The notes were not in evidence, the document purporting to be a statement from Mr Ghazi was not signed, and in fact Mr Ghazi refuted the contents of the document in a signed statement and in oral evidence. There was ample reason for the Arbitrator to consider that Mr Tanwar’s son was not a truly independent witness and to reject his evidence.
The only submission made by the first appellant in respect of the Arbitrator’s conclusion that Ms Tanwar was not a truly independent witness was that the Evidence Act does not preclude family members from giving evidence. The Arbitrator did not exclude Ms Tanwar’s evidence, or Mr Tanwar’s son’s evidence, because they were family members. Their evidence was admitted into the proceedings and assessed by the Arbitrator.
It follows that this ground of appeal is not made out and the ground fails.

Ground Eight

The first appellant alleges error on the part of the Arbitrator in respect of her determination that Mr Aslam’s deemed employment was a substantial contributing factor to his injury, in accordance with s 9A of the 1987 Act. The first appellant contends that the Arbitrator was wrong because the injury occurred outside of the bailment period and it occurred while Mr Aslam was in pursuit of the assailants, which action was not part of his duties as a driver of a taxi and was contrary to the training he would have received.
A review of the transcripts discloses that those submissions were not made to the Arbitrator and in fact, no submissions were made in respect of the issue of whether Mr Aslam’s employment was a substantial contributing factor to his injury. Whether Mr Aslam’s employment was a substantial contributing factor to the injury in accordance with s 9A of the 1987 Act was raised as an issue in the Notice issued pursuant to s 74 of the 1998 Act and was identified by the Arbitrator in her reasons as a matter requiring determination. The parties had the opportunity to make submissions about that issue. A matter which a party failed to address in submissions before the Arbitrator is not a matter in respect of which an error can be raised in an appeal from the Arbitrator’s decision to a Presidential member.[121]
[121] Brambles Industries Limited v Bell [2010] NSWCA 162.
The Arbitrator’s reasons for determining that Mr Aslam’s employment was a substantial contributing factor to the injury were soundly based, in accordance with the legislation and consistent with the relevant authorities. The first appellant has failed to identify error and this ground of appeal fails.

CONCLUSION

None of the grounds of appeal brought by the first appellant disclose error on the part of the Arbitrator and the appeal fails.

DECISION

The appellants’ application to adduce further evidence on the appeal is refused.
The appeal brought by the second appellant is dismissed.
The Arbitrator’s Certificate of Determination dated 11 January 2021, amended on 21 January 2021 and on 3 September 2021, is confirmed.

Elizabeth Wood
DEPUTY PRESIDENT

5 October 2021