Wang v Botany View Hotel

[2009] NSWCA 384

New South Wales

Court of Appeal

CITATION:	Wang v Botany View Hotel [2009] NSWCA 384
HEARING DATE(S):	18 November 2009
JUDGMENT OF:	McColl JA at 1, 14; Handley AJA at 13
EX TEMPORE JUDGMENT DATE:	18 November 2009
DECISION:	Application for leave to appeal dismissed with costs
CATCHWORDS:	APPEAL – application for leave to appeal – dismissal by Workers Compensation Commission of application to reconsider previous decision – no question of principle
LEGISLATION CITED:	Workers Compensation Act 1987 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Yun Fu Wang v Botany View Hotel [2008] NSWCA 229 Yun Fu Wang v Botany View Hotel Limited [2009] NSWWCCPD 63 Yun Fu Wang v Botany View Hotel [2009] HCASL 68
PARTIES:	Yun Fu Wang - Applicant Botany View Hotel - Respondent
FILE NUMBER(S):	CA 40281 of 2009
COUNSEL:	Applicant in person L King SC - Respondent
SOLICITORS:	Applicant in person Sparke, Helmore Lawyers - Respondent
LOWER COURT JURISDICTION:	Workers' Compensation Commission
LOWER COURT FILE NUMBER(S):	WCC 3530 of 2007
LOWER COURT JUDICIAL OFFICER:	O'Grady DP
LOWER COURT DATE OF DECISION:	10 June 2009

CA 40281/09
WCC 3530/07

McCOLL JA
HANDLEY AJA

18 November 2009
Yun Fu Wang v Botany View Hotel

Judgment

1 McCOLL JA: The applicant, Yun Fu Wang, seeks leave to appeal from a decision of Deputy President, Mr K O’Grady, of the Workers’ Compensation Commission given on 10 June 2009: Yun Fu Wang v Botany View Hotel Limited [2009] NSWWCCPD 63. In that decision Deputy President O’Grady refused to entertain an application lodged by the applicant pursuant to s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“the 1998 Act”) seeking reconsideration of two decisions made in the Workers Compensation Commission of New South Wales, the first by an Arbitrator on 3 August 2007 and the second, on appeal pursuant to s 352 of the 1998 Act, made on 26 February 2008 by Deputy President O’Grady.

2 The effect of those decisions was that the applicant’s application for workers compensation benefits was refused on the basis that although the applicant had fallen at work, the medical evidence did not support the proposition that his employment was a substantial contributing factor, either to the fall, or to any other injuries or disabilities that he had suffered. Accordingly he could not satisfy the requirements of s 9A of the Workers Compensation Act 1987 (NSW). This decision was a pure question of fact.

3 The applicant sought leave to appeal from Deputy President O’Grady’s first decision to the Court of Appeal. Leave to appeal was refused on 17 September 2008: Yun Fu Wang v Botany View Hotel [2008] NSWCA 229. The applicant then brought an application for special leave to appeal to the High Court of Australia. That application was dismissed by the High Court (Heydon J and Bell J) on 1 April 2009: Yun Fu Wang v Botany View Hotel [2009] HCASL 68.

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