Wang v Botany View Hotel - [2011] NSWSC 1487

Supreme Court

New South Wales

Medium Neutral Citation: Wang v Botany View Hotel [2011] NSWSC 1487
Hearing dates: 16 November, 2 December 2011
Decision date: 02 December 2011
Jurisdiction: Common Law
Before: Hislop J
Decision:
Confirm the Registrar's order that the summons be dismissed.
The "Summons (Amended)" filed on 5 October 2011 also dismissed.
Mr Wang to pay the defendant's costs of the application for review.

Category: Principal judgment
Parties: Yun Fu Wang (Plaintiff)
Botany View Hotel (Defendant)
Representation: In person (Plaintiff)
C. Dezarnaulds (Defendant)
Peter R. Murphy & Co. (Defendant)

File Number(s): 2011/226498

Judgment

HIS HONOUR: The plaintiff, Mr Wang, was employed by the Botany View Hotel. He alleged he sustained an incapacitating work injury in that employment on 9 August 2000.

Mr Wang sought workers compensation from his employer. The claim was disputed. On 3 August 2007 Workers Compensation Commission Arbitrator, Mr Harvey, heard Mr Wang's application. He held:

"[45] ...I am satisfied on the balance of probabilities that, whilst the applicant suffered an injury in the workplace on 9 August 2000, the cause of that injury was the fact that he had sustained a severe assault on the evening of the day before, 8 August 2000, that caused him to suffer a grand mal seizure which caused him to fall to the ground whilst carrying out his employment.

[46] It follows that I find that the applicant's employment was not a substantial contributing factor to the injuries sustained at the workplace on 9 August 2000.

[47] The applicant has established that he suffered an injury in the course of his employment, but has failed to establish that the employment was a substantial contributing factor to the injury. There accordingly must be an award for the respondent."

Mr Wang sought leave to appeal to the Acting President of the Workers Compensation Commission. On 26 February 2008 leave to appeal was refused.

Mr Wang sought leave to appeal from that decision to the Court of Appeal. The Court of Appeal refused leave on 17 September 2008.

Mr Wang sought special leave to appeal to the High Court from the Court of Appeal decision. The High Court observed:

"[3] The papers which the applicant has filed in support of his application for special leave to appeal are extremely difficult to understand. So far as they can be understood, they do not pose any question of law suitable for the consideration of this Court were special leave to be granted, or raise any possibility that an injustice has been done."

Mr Wang sought a reconsideration by the Acting President of his 26 February 2008 decision. On 10 June 2009 the application for reconsideration was refused.

Mr Wang sought leave to appeal to the Court of Appeal from that decision. The Court of Appeal held that the effect of the Workers Compensation decisions was:

"[2] ...that the applicant's application for worker's compensation benefits was refused on the basis that, although the applicant had fallen at work, the medical evidence did not support…

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 Wang v Botany View Hotel

Details

AGLC: Wang v Botany View Hotel [2011] NSWSC 1487
Case: [2011] NSWSC 1487
Decision Date: 02 December 2011

CaseChat Overview and Summary

The case of Wang v Botany View Hotel involved Yun Fu Wang, the plaintiff, and the Botany View Hotel, the defendant. The plaintiff, who was employed by the defendant, sought workers compensation for an alleged work injury sustained on 9 August 2000. The Workers Compensation Commission found that the plaintiff's injury was caused by a prior assault and not by his employment, and the plaintiff's subsequent appeals were dismissed. The plaintiff then filed a summons against the defendant in the Supreme Court, seeking various forms of relief, which was dismissed by the Registrar. The plaintiff subsequently filed a notice of motion seeking review of the Registrar's decision, which was heard by Hislop J.

The legal issues in this case centred around the validity of the summons filed by the plaintiff against the defendant and whether the summons could be sustained as a proper claim for relief in the Supreme Court. The court had to determine whether the plaintiff had any legitimate claim that could be pursued via the summons and whether the plaintiff's claims had any prospects of success. Additionally, the court had to assess whether the summons was appropriately drawn and whether the plaintiff's submissions and documentary material provided a clear and understandable basis for the relief sought.

The court found that the plaintiff's summons was not clearly articulated and was difficult to understand. The plaintiff failed to clarify the nature of the case sought to be made by him and did not identify any claim that was appropriately made by summons in the Supreme Court or show that any such claim had any prospects of success. The court agreed with the Registrar that the summons could not stand and confirmed the dismissal of the summons. The court also dismissed the "Summons (Amended)" filed on 5 October 2011 for the same reasons. The court ordered the plaintiff to pay the defendant's costs of the application for review.

In summary, the court dismissed the summons filed by the plaintiff against the defendant, confirming the earlier dismissal by the Registrar. The court held that the plaintiff had not identified any legitimate claim that could be pursued via the summons and that the summons was not appropriately drawn. The plaintiff was ordered to pay the defendant's costs of the application for review.

Orders