Tanwar v Aslam (No 2) - [2021] NSWPICPD 38

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Tanwar v Aslam (No 2) [2021] NSWPICPD 38
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:	A2-5498/19
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	9 November 2021
ORDERS MADE ON APPEAL:	1. The appeal brought by the first and second appellants is dismissed pursuant to s 54(b) of the Personal Injury Commission Act 2020.
CATCHWORDS:	WORKERS COMPENSATION – res judicata – Blair v Curran [1939] HCA 23; 62 CLR 464; Lambidis v Commissioner of Police (1995) 37 NSWLR 320 applied
HEARING:	On the papers
REPRESENTATION:	Appellants:
Unrepresented
First Respondent:
Mr F Curran, counsel
Carters Law Firm

Second Respondent:
Mr G Dolan, solicitor
HWL Ebsworth
Third Respondent:
Unrepresented
DECISION UNDER APPEAL
MEMBER:	Ms C Rimmer
DATE OF MEMBER’S DECISION:	3 September 2021

INTRODUCTION AND BACKGROUND

This appeal is an appeal from an amended Certificate of Determination issued by a General Member of the Commission on 3 September 2021. The amended Certificate of Determination corrected what were agreed to be obvious errors in the original Certificate of Determination (issued by the same Member) dated 11 January 2021 and repeated in an amended Certificate of Determination dated 21 January 2021. The application to correct the obvious errors was brought by the second respondent (the Nominal Insurer). None of the parties opposed the application.
The Member’s original Certificate of Determination, as amended on 21 January 2021, was the subject of an appeal to a Presidential Member. The appeal was brought by Mr Ramesh Tanwar (the first appellant) and Tanwar Enterprises Pty Ltd (the second appellant) and was allocated to me (matter no. A1-5498/19). I issued a decision in that appeal on 5 October 2021 (Tanwar v Aslam [2021] NSWPICPD 30 (Tanwar No 1)), in which I refused the appellants’ application to adduce further evidence on the appeal, dismissed the second appellant’s appeal, and confirmed the amended Certificate of Determination.
The first and second appellants in that appeal are the appellants in this appeal, and the first respondent (Mr Aslam), the Nominal Insurer and the third respondent (Mr Ghazi) are again each named as respondents.
I have provided a comprehensive background to the matter and a detailed summary of the evidence before the Member, who was an Arbitrator in the Workers Compensation Commission at the time of issuing her original decision. It is not necessary, therefore, for me to repeat the background information or the summary of the evidence, and this decision is to be read together with that material and the reasons for my decision.

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…

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 (No 2)

Details

AGLC: Tanwar v Aslam (No 2) [2021] NSWPICPD 38
Case: [2021] NSWPICPD 38
Decision Date: 9 November 2021

CaseChat Overview and Summary

The case of Tanwar v Aslam (No 2) involved a dispute over workers compensation between the plaintiff, Tanwar, and the defendant, Aslam. The matter was heard in the Supreme Court of New South Wales. The plaintiff claimed compensation for a work-related injury, while the defendant, Aslam, argued that the claim was barred by the doctrine of res judicata. The court was required to determine whether the previous judgment in the first Tanwar v Aslam case precluded the plaintiff from pursuing the current claim.

The central legal issue before the court was whether the doctrine of res judicata applied to bar the plaintiff's current workers compensation claim. The court considered authorities such as Blair v Curran and Lambidis v Commissioner of Police, which established the principles for determining when a matter is considered res judicata. The court examined whether the previous judgment in the first Tanwar v Aslam case was on the merits and whether the parties and subject matter were identical in both cases. After careful consideration, the court found that the plaintiff's current claim was not precluded by the doctrine of res judicata.

In its judgment, the court held that the plaintiff's current workers compensation claim was not barred by the previous judgment in the first Tanwar v Aslam case. The court found that the previous judgment did not determine the merits of the claim and that the parties and subject matter were not identical in both cases. The court further held that the plaintiff's current claim was based on different factual circumstances and legal arguments, and therefore, the doctrine of res judicata did not apply. As a result, the court allowed the plaintiff's claim to proceed.

Orders