Yun Fu Wang v Botany View Hotel - [2008] NSWCA 229

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Yun Fu Wang v Botany View Hotel [2008] NSWCA 229

FILE NUMBER(S):
40071/08

HEARING DATE(S):
17 September 2008

EX TEMPORE DATE:
17 September 2008

PARTIES:
Yun Fu Wang (Applicant)
Botany View Hotel (Respondent)

JUDGMENT OF:
Beazley JA McColl JA

LOWER COURT JURISDICTION:
Workers Compensation Commission

LOWER COURT FILE NUMBER(S):
WCC 3530-07

LOWER COURT JUDICIAL OFFICER:
Acting Deputy President O'Grady

LOWER COURT DATE OF DECISION:
26 February 2008

LOWER COURT MEDIUM NEUTRAL CITATION:
Yun Fu Wang v Botany View Hotel Limited [2008] NSWWCCPD 25

COUNSEL:
In person (Applicant)
L King SC; D A Baker (Respondent)

SOLICITORS:
Sparke Helmore (Respondent)

CATCHWORDS:
WORKERS COMPENSATION - appeal against decision of Workers Compensation Commission - Deputy President's refusal of leave to adduce fresh evidence - refusal within Deputy President's discretion - evidence of workplace injury - employment not a substantial contributing factor - no appealable error demonstrated

LEGISLATION CITED:

CASES CITED:

TEXTS CITED:

DECISION:
The summons for leave to appeal is dismissed with costs

JUDGMENT:

- 3 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 040071/08
BEAZLEY JA
McCOLL JA
Ex tempore 17 September 2008

Yun Fu Wang v Botany View Hotel

Judgment

THE COURT: This is an application for leave to appeal from a decision of a Deputy President, Mr K O’Grady, of the Workers’ Compensation Commission given on 26 February 2008. The applicant, Mr Yun Fu Wang, appeared for himself in the proceedings. He made three substantial points as to why he should be granted leave to appeal.
The first was that the Deputy President was in error in proceeding upon the basis that he had not filed an application for leave to appeal from the arbitrator’s decision until 2 October 2007, when in fact he had lodged an application for leave to appeal on 24 August 2007. He provided the Court with a stamped copy of the Commission document showing that such an application had been filed at that time. Mr Wang did not inform the Deputy President of that application during the course of the hearing, but he did make known to the Deputy President that there had been other applications for leave to appeal filed, one on 17 August and one on 31 August. The application of 17 August was placed before us and it was shown to have been rejected by the Commission. The application of 31 August, for reasons which are not clear, was not proceeded with before the Commission, but the Deputy President was fully aware of its existence. It appears that none of the applications had been served. Nothing arises from that. That does not affect their validity. However, the matter proceeded before the Deputy President on the basis of an application filed on 2 October 2000, which was, of course, out of time.
If reliance upon an application that was out of time was the only issue in the hearing before the Deputy President, then it might be expected that leave to…

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.

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Details

Case: [2008] NSWCA 229
Decision Date: 17 September 2008

CaseChat Overview and Summary

The appeal concerned a decision of the Workers Compensation Commission where the Deputy President had refused to grant leave to adduce fresh evidence. The appellant, Yun Fu Wang, sought to appeal this refusal.

The primary legal issue before the Court of Appeal was whether the Deputy President erred in exercising their discretion to refuse leave to adduce fresh evidence. This, in turn, required the Court to consider whether the proposed fresh evidence was relevant to the appellant's claim for workers' compensation, specifically concerning whether a workplace injury was a substantial contributing factor to the appellant's condition.

The Court of Appeal found that the Deputy President's refusal to grant leave was within their discretion. The Court reasoned that the proposed fresh evidence did not demonstrate that the employment was a substantial contributing factor to the injury, a necessary element for a successful workers' compensation claim. Consequently, no appealable error was demonstrated.

The summons for leave to appeal was dismissed, and the appellant was ordered to pay the costs of the proceedings.

Orders

Orders of the court

The summons for leave to appeal is dismissed with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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