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 enabling legislation without holding any conference or formal hearing.”
I have had regard to Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions by the appellant 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 any conference or 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 Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.

APPLICATION TO ADDUCE ADDITIONAL EVIDENCE

The appellants seek to adduce additional evidence on this appeal. The material sought to be adduced consists of:
(a)    a statement made by Mr Tanwar dated 27 August 2021, identifying the late evidence and giving reasons why the material should be admitted;
(b)    a statement from Ms Gurpreet Kaur, an employee of Tanwar Enterprises Pty Ltd, dated 27 August 2021, also describing the late evidence;
(c)    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 between 14 February 2021 and 6 June 2021;
(d)    still photographs, downloaded from the Humwatan News Facebook posts between 4 February 2021 and 5 June 2021, and
(e)    video footage taken by Ms Kaur through a car dash-cam recorder on numerous occasions between 7 May 2021 and 16 July 2021.
Mr Aslam opposes the admission of the documents. In response to a Direction issued by me on 14 October 2021, Mr Aslam indicated that he sought 14 days in which to file and serve submissions in respect of his objection.[1] After I issued a further Direction dated 29 October 2021 in which I advised the respondents that I intended to take into account their submissions made in Tanwar No 1 (discussed below), Mr Aslam advised that he no longer intended to make further submissions in relation to the admission of the further evidence.[2]
[1] Email to the Commission from Mr Aslam’s legal representatives dated 21 October 2021.
[2] Email to the Commission from Mr Aslam’s legal representatives dated 2 November 2021.
It was not necessary in the circumstances of this case to require further submissions from Mr Aslam in that regard. It is sufficient to note that Mr Aslam did not resile from his position of opposing the application by the appellants to have admitted further documents.
The material sought to be adduced is the same material that the appellants sought to rely on as additional evidence in the appeal in Tanwar No 1. A file note recorded by the Commission’s Presidential Unit discloses that Mr Tanwar confirmed that to be the case in a telephone conversation with the Unit on 6 October 2021. The appellants rely upon the same reasons put forward in Tanwar No 1, save that, in this appeal, the appellants submit that the documents should be admitted because the application to have them admitted was made at the time of filing the appeal and not on the eve of the issue of my decision in Tanwar No 1.
I considered the application to adduce this evidence in Tanwar No 1 at [40]–[55] and rejected the application. Apart from the fact that the material was sought to be lodged very late in the appeal, I took into account that:
(a)    some of the activities described by Ms Kaur in her statement were not readily apparent from the recorded footage;
(b)    it would have been procedurally unfair to admit the material without giving the respondents the opportunity to make submissions and potentially adduce evidence in reply, which would result in unacceptable delay in finalising the matter and would amount to a re-hearing, contrary to s 325(5) of the 1998 Act;
(c)    a reason put forward by the appellants for not having put such evidence before the Member was that they could not afford the financial outlay, and yet the evidence now obtained was obtained through the appellants’ own resources and not by going to the expense of engaging a third party;
(d)    while the appellants submitted that the material is relevant to the assessment of Mr Aslam’s whole person impairment and entitlement to weekly compensation, those matters were not relevant to the appeal and were yet to be determined at first instance;
(e)    the Member did not determine the injuries suffered in the incident on the basis of Mr Aslam’s credit or on the basis of his current complaints. She decided the issues on the basis of the contemporaneous medical and other material before her in relation to the injuries suffered in the incident and the factual evidence that corroborated the evidence about the bailment, and
(f)    the evidence was not contrary to the evidence before the Member in relation to the question of bailment.
I applied the authorities of CHEP Australia Ltd v Strickland,[3] Northern New South Wales Local Health Network v Heggie,[4] and D’Orta-Ekenaike v Victoria Legal Aid,[5] and, in accordance with those authorities, I did 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.
[3] [2013] NSWCA 351; 12 DDCR 501.
[4] [2013] NSWCA 255; 12 DDCR 95.
[5] [2005] HCA 12; 223 CLR 1.
In this appeal, the reasons summarised at [12(a)]–[12(f)] above are equally applicable. For the same reasons and applying the same authorities, I refuse the appellants’ application to adduce the additional evidence in this appeal.

THE MEMBER’S REASONS

The Member’s orders and reasons provided in the amended Certificate of Determination were identical to those in the Certificate of Determination dated 11 January 2021 as amended on 21 January 2021, except in so far as the Member corrected the obvious error in [469] and added a further paragraph, [474].
Paragraph [469] of the original Certificate of Determination read as follows:
“I find that on 21 October 2006 [Mr Aslam] suffered injury to his neck, back and right lower extremity (knee) in an assault and that he suffered a psychological condition as a result of the assault.”
The finding that Mr Aslam suffered injury to his back on 21 October 2006 was clearly at odds with the Member’s reasons and conclusion at [373]–[398], where she was not satisfied that Mr Aslam injured his back in the assault. Her conclusion was that:
“After considering the evidence tendered in this case, I am not persuaded that Mr Aslam injured his lumbar spine in the incident on 21 October 2006. The medical evidence as a whole does not support a finding of injury to the lumbar spine on 21 October 2006. I have placed considerable weight on the opinions of Dr Mahony and Dr Bentivoglio as well as the statement Mr Aslam gave on 10 April 2008. There was no explanation provided by Mr Aslam in his later statements as to why he did not refer to an injury to the lumbar spine or low back in his statement. In my view, Mr Aslam has failed to discharge the onus upon him to establish that he sustained an injury to his lumbar spine on 21 October 2006.”[6]
[6] Aslam v Ramesh Tanwar & others [2021] NSWWCC 13, [398].
Thus, the Nominal Insurer requested the Member amend paragraph [469] to exclude reference to Mr Aslam’s back, and there was no objection made to that amendment, including no objection by the appellants. Accordingly, the Member made the amendment.
Consequent upon that amendment, the Member inserted a further paragraph in her reasons, which became [474] and read as follows:
“Award for the first respondent [Mr Tanwar] and third respondent [the Nominal Insurer] in respect of the claim for injury to the lumbar spine.”
The amended Certificate of Determination issued on 3 September 2021 records
“The Commission declares:
1.      That the first respondent [Mr Tanwar] was not insured as required by the Workers Compensation Act 1987 at all relevant times.
The Commission determines:
1.      That the third respondent, the Workers Compensation Nominal Insurer, is liable to make payments as if it were the insurer of the first respondent [Mr Tanwar] at all relevant times.
2.      Award in favour of the second respondent [Tanwar Enterprises Pty Ltd].
3.      Award in favour of the fourth respondent [Mr Ghazi].
4.      Award for the first respondent [Mr Tanwar] and third respondent [the Nominal Insurer] in respect of the claim for injury to the lumbar spine.
5.      Matter to be remitted to the Registrar to refer to an Approved Medical Specialist for:
(a) assessment of whole person impairment of the cervical spine and right lower extremity (knee) attributable to the injury on 21 October 2006, and
(b) assessment of whole person impairment of a psychological condition attributable to the injury on 21 October 2006.
6.      The following documents are to be provided to the Approved Medical Specialist:
(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply of Mr Tanwar and Tanwar Enterprises dated 12 November 2019 (with no attached documents);
(c) Reply of the Nominal Insurer dated 12 November 2019 and attached documents;
(d) Reply of Mr Ghazi dated 20 April 2020 and attached documents;
(e) undated statement of the [sic] Mr Tanwar (21 paragraphs) and attached annexures A-A1 (127 pages) filed on 21 February 2020;
(f) Application to Admit Late Documents filed by Mr Aslam and dated 27 October 2020, and
(g) Application to Admit Late Documents filed by Mr Tanwar and Tanwar Enterprises Pty Ltd and dated 23 October 2020.
7.      Matter to be listed for further telephone conference in relation to the claim for weekly benefits and medical expenses following the issue of the Medical Assessment Certificates.”
Those orders and findings are in identical terms to the orders and findings set out in the Amended Certificate of Determination issued on 21 January 2021.

GROUNDS OF APPEAL

The appellants’ grounds of appeal are the same grounds as those relied upon in Tanwar No 1. That is, the appellants allege error on the part of the Member as follows:
(a)    Ground One: error by failing to take into account the evidence of Mr Milad Saghapi;
(b)    Ground Two: error in her determination of the issue of bailment by failing to take into account the evidence of the various witnesses relied upon by Mr Tanwar and Tanwar Enterprises;
(c)    Ground Three: error in rejecting the evidence of the driver’s daily worksheets on the basis that they lacked probative value;
(d)    Ground Four: error by affording weight to the evidence of Mr Tasser Qasim;
(e)    Ground Five: error in determining that Mr Farooq Aslam suffered physical and psychological injury, contrary to the notice issued pursuant to s 74 of the 1998 Act;
(f)    Ground Six: error by distinguishing Bolton v Ibrahim and Dimitrikakis,[7] from the present case on its facts;
(g)    Ground Seven: error in rejecting the evidence of Mr Abhay Tanwar and Ms Shirley Tanwar on the basis that their evidence was unreliable because of their relationship to Mr Tanwar, and
(h)    Ground Eight: error in determining that Mr Aslam’s employment was a substantial contributing factor to his injury in accordance with s 9A of the 1987 Act.
[7] [2002] NSWCC 39.

CONSIDERATION

The appellants provide particulars of each ground of appeal, which are identical to the particulars provided in Tanwar No 1, with the exception of the particulars relating to Grounds One and Two. While the particulars in respect of those grounds are expressed in different terms, the substance of the appellants’ complaints is the same. As I found in Tanwar No 1[8] there is nothing that points to error on the part of the Arbitrator in not accepting that unsigned evidence referred to as the statement of Mr Milad Saghapi, when the first purported statement spoke of arrangements between Mr Saghapi and Mr Ghazi prior to the sale of taxi T-1078 to Mr Tanwar[9] and the second did not make any reference at all to the arrangements after the taxi was sold to Mr Tanwar.[10]
[8] Tanwar No 1, [350]–[356].
[9] Appellants’ Application to Admit Late Documents (AALD) dated 23 October 2020, pp 155–156.
[10] Appellants’ AALD dated 23 October 2020, pp 110–111.
Similarly, in respect of Ground Two, I considered the appellant’s allegation of error on the part of the Member and explained why there was no error in the Member’s approach, or in her conclusions about the evidence of the various witnesses relied upon by the appellants.[11]
[11] Tanwar No 1, [357]–[370].
The appellants’ submissions in respect of each ground of appeal are also identical to those made in Tanwar No 1. In Tanwar No 1, I dismissed the appeal brought by the second appellant and determined that the appeal brought by the first appellant had not identified error on the part of the Member and was without merit. The Member’s Certificate of Determination, as amended, was confirmed.
On 14 October 2021, I issued a Direction to the respondents to this appeal indicating that, given the appellants’ appeal grounds and supporting submissions were the same as those relied upon by the appellants in Tanwar No 1, I intended to determine the matter by taking into account the submissions already made by the respondents. I directed the respondents to advise whether they had any objection to that approach, and whether they wished to make any further submissions. Each respondent indicated that they had no objection to that approach, and did not wish to make further submissions, except Mr Aslam, who sought leave to file submissions to support his objection to the further evidence being admitted on the appeal, as discussed at [9]–[10] above.
It follows that the only issues agitated in this appeal are the same issues raised and dealt with in Tanwar No 1 and the parties nominated in this appeal are the same respondents to the appeal in Tanwar No 1.
In Blair v Curran,[12] Dixon J observed:
“A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment so that it has merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established.”
[12] [1939] HCA 23; 62 CLR 464, 531–532.
In Lambidis v Commissioner of Police,[13] Priestley JA (with whom Kirby P (as his Honour then was) and Powell JA agreed) said:
“[A]mong the public policy reasons common to both res judicata and issue estoppel are the protection of parties from unnecessary re-litigation and the avoidance of the expense, inconvenience and anxiety involved in the same persons fighting a second time on an issue already decided between them.”
[13] (1995) 37 NSWLR 320.
In order for the doctrine of res judicata to apply, authorities have accepted that the following elements must be present:
(a)    the decision was judicial in the relevant sense;
(b)    it was in fact pronounced;
(c)    the tribunal had jurisdiction over the parties and the subject matter;
(d)    the decision was final, and determined on the merits;
(e)    it determined the same question as that raised in the later litigation, and
(f)    the parties to the later litigation were either parties to the earlier litigation or their privies, or the earlier decision was in rem.[14]
[14] Spencer Bower, Turner & Handley, The Doctrine of Res Judicata, Third Edition, Butterworths, 1996.
The appellants had not addressed the above authorities or the doctrine of res judicata in their appeal. In order to afford the appellants procedural fairness, I issued a Direction on 29 October 2021, directing the appellants to provide submissions by 4.30 pm on 5 November 2021 as to whether the issues raised in this appeal had already been determined in Tanwar No 1, and whether the doctrine of res judicata applies to this appeal. Copies of, or hyperlinks to, the authorities and other material was provided to the appellants.

The appellants complied with that Direction.
The appellants assert that the issues raised in this appeal had not already been determined in Tanwar No 1, because the circumstances and timing of the lodgment of fresh evidence is entirely different in this appeal, which requires a new determination.
The appellants refer to the reasons provided by me for refusing to admit the further evidence in Tanwar No 1, namely that:
(a)    the further evidence was not filed until after submissions were finalised and the merits of the appeal were being considered, and
(b)    the admission of the evidence would cause substantial prejudice to the respondents, who would require the opportunity to address the evidence, and
(c)    the process of providing the respondents with the opportunity to address the evidence would amount to a re-hearing in contravention of s 352(5) of the 1998 Act and cause a further protracted delay in the resolution of the matter.
The appellants submit that the reason provided in [34(a)] above does not apply because the documents sought to be admitted were lodged with the appeal grounds in this matter, well before the Commission issued a timetable. The appellants further submit that, in this appeal, the respondents were given the opportunity to object to the documents and the Nominal Insurer and Mr Ghazi chose not to do so, while Mr Aslam initially objected but then advised that he no longer wished to make further submissions about the admission of the evidence.
The appellants assert that the evidence sought to be relied upon by them is compelling evidence that would likely affect the matter and would create a substantial injustice if not admitted. The appellants contend that this appeal therefore has a different set of circumstances to Tanwar No 1 and the reasons for the refusal to admit the further evidence do not apply to this appeal.
The appellants submit that the admission of the further documents changes the nature of this appeal and thus the doctrine of res judicata does not apply. Further, the appellants advise that they are unrepresented in this matter and do not have the knowledge or qualifications to consider the relevance of the authorities referred to in my Direction. The appellants assert that this matter is complicated, and they have attempted to obtain legal advice, however, were unable to do so within the time provided for in the Direction, which they consider to be an unreasonable time frame.
The appellants provide a procedural summary leading up to the issuing of my decision in Tanwar No 1.
The appellants refer to the Nominal Insurer’s application to the Commission for correction of obvious errors and the Commission’s Dispute Officer’s email dated 3 September 2021 attaching the corrected Certificate of Determination of that date. The appellants point to the information in the email, which indicated that an appeal from the decision must be lodged within 28 days. The appellants submit that this information implied that the determination was a completely new determination. The appellants also refer to the Commission having then booked an appointment for Mr Aslam to attend a medical examination with an Approved Medical Specialist, which the appellants submit also implies that the determination dated 3 September 2021 is a completely separate determination.
I do not accept those submissions. The reference to the time period for lodgment of an appeal from the Certificate of Determination does not change the character of that determination and nor does the procedure of referring Mr Aslam to an Approved Medical Specialist for assessment. Those matters do not change the fact that the appeal in this matter is on the same grounds and in respect of the same conclusions reached by the Member in the decision the subject of the appeal in Tanwar No 1.
The appellants point out that, following my Direction indicating that I intended to take into account submissions already made in Tanwar No 1, the respondents elected not to file further submissions. Further, the Nominal Insurer and Mr Ghazi indicated that they did not object to the admission of the further evidence sought to be adduced in this appeal. The appellants note that Mr Aslam did object to the further evidence but subsequently indicated that they no longer wished to file further submissions against the admission of the additional evidence.
Mr Aslam did not withdraw his objection to the admission of the further evidence and I am required to consider whether the evidence ought to be admitted. I have discussed the admission of the further evidence at [8]–[14] above, and I have declined to admit the documents in these proceedings. Apart from the appellants’ complaint that they do not have legal representation and are thus unable to address the principle of res judicata, the appellants’ submission that this appeal is different to Tanwar No 1 is the only submission made in their assertion that the doctrine does not apply.
I accept that this matter is complicated. To some extent, the complications have arisen because of the manner in which the evidence sought to be relied upon by the appellants has been presented to the Commission, the fact that the appellants at times were unrepresented, and the legal issues that have arisen throughout a consideration of the claim brought by Mr Aslam. The appellants proceeded with this appeal, for the most part, unrepresented.
The matter has an exceptionally long history. Mr Aslam’s claim was initially listed for arbitration in 2014, but proceedings were discontinued because a late issue was raised by the appellants that a third party, who was not joined to the proceedings, was the bailor of the taxi. Mr Aslam recommenced proceedings in 2019, and after protracted procedural delays in the matter, the proceedings came to arbitration on 15 October 2020 and 2 December 2020. The appellants were legally represented in all of the three arbitrations but were initially unrepresented when they commenced the first appeal in this matter. They retained legal representation prior to a telephone conference held by me on 11 August 2021, but on 27 August 2021, the appellants advised that they were no longer legally represented. The appellant gave no explanation as to why they were no longer represented. The appellant then lodged this appeal, again unrepresented.
The appellants submit that they are not qualified to provide submissions in relation to the authorities referred to and had insufficient time to retain legal representation. The appellants elected to proceed with this appeal without the benefit of legal representation, except for the brief period at which time the telephone conference was conducted. The appellants have given no explanation as to why they ceased to retain legal representation after the telephone conference. Nor do they set out what steps, if any, were taken to obtain legal advice in respect of my Direction dated 29 October 2021 or why they were unable to initiate a consultation for advice from any of the numerous practitioners who are experienced in the field of workers compensation. The appellants did not make any application for an extension of time in which to respond to my Direction. In the usual circumstances, such an application would have been forthcoming if genuine steps had been taken to engage representation before the time period expired.
The only material difference between the Member’s Certificate of Determination issued on 11 January 2021, as amended on 22 January 2021, and the amended Certificate of Determination dated 3 September 2021 was the amendment made to paragraph [469] and the insertion of the new paragraph [474]. Both of those amendments were in favour of the appellants and the appellants do not raise any allegation of error on the part of the Member in respect of either amendment.
My decision in Tanwar No 1 is final and binding on the parties, subject, of course, to the dissatisfied party bringing an appeal from that decision to the Court of Appeal in accordance with s 353 of the 1998 Act. The parties in this case are the same parties involved in Tanwar No 1. The decision was within jurisdiction, determined on the merits and issued. The same allegations of error are raised in this appeal in the respect of the same conclusions reached by the Member, on the same basis and against the same parties.
It follows that the doctrine of res judicata applies and the appellants’ appeal cannot proceed.
Section 54(b) of the 2020 Act provides that the Commission may at any stage dismiss proceedings before it if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance. The appeal brought by the appellant cannot proceed because the grounds of appeal and submissions have already been considered and determined in Tanwar No 1 and are thus misconceived.
The appeal brought by the first appellant and the second appellant is therefore dismissed.

DECISION

The appeal brought by the first and second appellants is dismissed pursuant to s 54(b) of the 2020 Act.

Elizabeth Wood
DEPUTY PRESIDENT

9 November 2021