Yun Fu Wang v Botany View Hotel Limited

[2009] NSWWCCPD 63

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPLICATION FOR RECONSIDERATION OF A DECISION OF THE COMMISSION CONSTITUTED BY A PRESIDENTIAL MEMBER
STATUS: Reconsideration: This decision is a reconsideration of the decision in Yun Fu Wang v Botany View Hotel Limited [2008] NSWWCCPD 25
CITATION:		Yun Fu Wang v Botany View Hotel Limited [2009] NSWWCCPD 63
APPLICANT FOR RECONSIDERATION:		Yun Fu Wang
RESPONDENT FOR RECONSIDERATION:		Botany View Hotel Limited
INSURER:		GIO Workers Compensation Limited
FILE NUMBER:		WCC3530-07
ARBITRATOR:	Mr P. Harvey
DATE OF ARBITRATOR’S DECISION:		3 August 2007
DATE OF APPEAL DECISION:		26 February 2008
DATE OF RECONSIDERATION DECISION:		10 June 2009
SUBJECT MATTER OF DECISION:		Section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998; public policy.
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
HEARING:		On the papers
REPRESENTATION:		Applicant:	In person, unrepresented
Respondent:	Sparke Helmore
ORDERS MADE:		1.   The Application for Reconsideration is dismissed. The Commission’s orders made 26 February 2008 are confirmed. 2.  No order as to costs of the Application for Reconsideration.

BACKGROUND

1. On 27 May 2009 Yun Fu Wang (‘the applicant’) filed a number of documents with the registry of the Workers Compensation Commission (‘the Commission’) under cover of an Application to Resolve a Dispute.

1. The respondent to that Application is Botany View Hotel Limited (‘the respondent’).

1. The applicant appears before the Commission unrepresented. The documentation which has been prepared with respect to this Application is inappropriate to the matter raised for determination. The Application which has been filed is not one seeking determination of a dispute concerning a claim in terms of section 288 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) but appears to be an Application seeking reconsideration of determinations made with respect to a dispute between the parties by an Arbitrator on 3 August 2007 and by myself, on appeal pursuant to section 352 of the 1998 Act, made on 26 February 2008.

1. The history of the dispute between the parties is both lengthy and complex.  Shortly stated it is the applicant’s allegation that he, on 9 August 2000 whilst in the course of his employment with the respondent as a cleaner, received injury when he slipped and fell.  The applicant claimed compensation benefits against his employer which were denied.  The dispute between the parties was determined by the Arbitrator as noted earlier on 3 August 2007. The applicant was unrepresented.  The Commission ordered on that occasion that an award be entered in favour of the respondent.

1. The applicant sought leave to appeal against the Arbitrator’s decision, however leave was refused for reasons as stated in my determination made on 26 February 2008.

1. The applicant subsequently sought leave to appeal from that decision to the Supreme Court of New South Wales Court of Appeal.  That application was heard by the Court of Appeal on 17 September 2008 at which hearing the applicant appeared again unrepresented.  Leave to appeal was refused.

1. The applicant subsequently brought an application for special leave to appeal the decision of the Court of Appeal to the High Court of Australia. That application was dismissed by the High Court (Heydon J and Bell J) on 1 April 2009.

1. The present Application is accompanied by a 25 page hand written document prepared, presumably, by the applicant. Reference is made at the commencement of that document to reconsideration of “Arbitrator and D. president decision”. Following that reference mention is made to “s 329(A), 350(3), 378 Act 1998”. It may be stated at the outset that the provisions of section 329(A) and 378 of the 1998 Act can have no relevance or application on the present facts. Notwithstanding the manner in which this Application has been brought it is reasonably clear that, as stated earlier, the applicant is seeking reconsideration pursuant to section 350(3). Whilst reference is made to both the arbitral determination and the determination on appeal, it is appropriate that the Application be considered by a Presidential member of the Commission having regard to the history of the litigation in particular the circumstance that the decision on appeal made 26 February 2008 has not been disturbed by the superior courts.

RECONSIDERATION ON THE PAPERS

1. Section 354(6) of the 1998 Act provides:

“(6)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 without holding any conference or formal hearing.”

1. Neither party has made any submission concerning the appropriateness or otherwise of dealing with the present Application on the papers without holding any conference or formal hearing.  Having regard to the written material which is before me I am satisfied I have sufficient information to proceed on the papers and that this is the appropriate course to adopt in dealing with the Application for Reconsideration.

PROCEDURE ON REVIEW

1. Section 350(3) of the 1998 Act provides:

“(3)The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”

1. The Registrar’s Guideline dated 22 October 2007 provides guidance to parties and their legal representatives with respect to appropriate procedure concerning requests for reconsideration. It is there stated:

“APPLICATIONS FOR RECONSIDERATION

There is no specific form for making an application for reconsideration under sections 329(1A), 350(3) or 378.  Parties may make application by way of letter that includes the following information:-

·The matter that is the subject of the application for reconsideration;

·The basis upon which a reconsideration is sought;

·Where relevant, the special circumstances which justify any delay in the making of the application for reconsideration;

·Where relevant, submissions addressing why the decision should be the subject of reconsideration rather than appeal;

·The date of service of the application on any other party to the proceedings.

The application for reconsideration should be made as soon as practicable after the party making the application becomes aware of the basis for seeking reconsideration.  It should be served on the other parties prior to lodgement with the Commission, together with a notification to the parties served that they have 21 days in which to reply.”

1. The documentation compiled by the applicant with respect to the Application for Reconsideration has been served upon the respondent, the insurer and the solicitors previously retained to act on behalf of the respondent in the proceedings. The response by the respondent’s solicitors is addressed hereunder.

1. In Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 141 (‘Samuel’) careful consideration was given to the proper construction and effect of the provisions of section 350(3) by Roche ADP (as he then was). Following consideration of relevant authority and legislative provisions it was there stated (at [58]):

“58. Having regard to the above authorities and the provisions and objectives of the 1998 Act I believe that the following principles are applicable to reconsideration applications under section 350(3) of the 1998 Act:

1.the section gives the Commission a wide discretion to reconsider its previous decisions (‘Hardaker’);

2.whilst the word ‘decision’ is not defined in section 350, it is defined for the purposes of section 352 to include “an award, order, determination, ruling and direction”. In my view ‘decision’ in section 350(3) includes, but is not necessarily limited to, any award, order or determination of the Commission;

3.whilst the discretion is a wide one it must be exercised fairly with due regard to relevant considerations including the reason for and extent of any delay in bringing the application for reconsideration (‘Schipp’);

4.one of the factors to be weighed in deciding whether to exercise the discretion in favour of the moving party is the public interest that litigation should not proceed indefinitely (‘Hilliger’);

5.reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained at the first Arbitration is later obtained and that new evidence, if it had been put before an Arbitrator in the first hearing, would have been likely to lead to a different result (‘Maksoudian’);

6.given the broad power of ‘review’ in section 352 (which was not universally available in the Compensation Court of NSW) the reconsideration provision in section 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by Arbitrators;

7.depending on the facts of the particular case the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (‘Anshun’) may prevent a party from pursuing a claim or defence in later reconsideration proceedings if it unreasonably refrained from pursuing that claim or defence in the original proceedings (‘Anshun’);

8.a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration (‘Hurst’), and

9.the Commission has a duty to do justice between the parties according to the substantial merits of the case (‘Hilliger’ and section 354(3) of the 1998 Act).”

1. I respectfully agree with those matters of principle stated in Samuel. In the present case there is no material produced in support of the Reconsideration Application which could be described as “new evidence”. The voluminous material which accompanies the Application includes much of the material which has been considered on earlier occasions both by the Commission and the superior courts.  There are a number of documents including a computer printout from Google the internet search engine, a form relating to fee dispensation in the High Court of Australia and correspondence relating to costs of the proceedings. There is, in my view, no material produced in support of this Application, which is in any sense relevant to reconsideration of the Commission’s earlier orders.

1. The hand written document referred to in [8] above is very difficult to follow. It is clear that the applicant seeks to re-agitate matters dealt with on earlier occasions before the Commission (at first instance and on appeal) and during the course of leave applications brought before the Court of Appeal and the High Court.  In addition to those matters the hand written document appears to suggest an absence of objectivity by the Commission in its adjudication of the applicant’s claim as well as containing a number of unsubstantiated suggestions of improper conduct with respect to the sound recording of the original hearing before the Arbitrator.

1. That hand written document appears to make reference to matters that were addressed during the course of the hearing of the appeal before the Commission. The document also seeks to renew and reiterate argument concerning the state of the medical evidence and the question of admission of “fresh evidence”.

1. The applicant in the written document appears to canvas events occurring during the course of the hearing before the Commission including the conduct of Counsel then appearing on behalf of the respondent. The applicant seeks also to reopen argument concerning the circumstances of his fall which undoubtedly occurred on 9 August 2000. It must be said that, so far as the written document can be comprehended, it contains much repetition.

RESPONDENT’S SUBMISSIONS

1. The Commission has received correspondence dated 3 June 2009 from the respondent’s solicitors which outlines the respondent’s opposition to the application for reconsideration. Those submissions summarise the litigious history concerning the applicant’s claim. Of significance the respondent draws the Commission’s notice to the fact that, prior to the decision made by the Court of Appeal referred to at [6] above the applicant had instituted a fresh application in the Commission being matter no. 4476/08. That application made allegations identical to those dealt with by the Commission earlier. The application was dismissed. The Commission’s attention is also drawn to the costs order made by the Arbitrator in those last mentioned proceedings against the applicant.

1. After a summary of the historical matters the respondent submits, “… that Mr Wang has pursued all avenues available to him with respect to his claim unsuccessfully and that the application for a reconsideration should be declined.”

DISCUSSION

1. The applicant has failed, in my view, to present any material on this Application that can in anyway provide a basis to argue that the Commission’s discretion to reconsider its previous decision should be exercised.

1. The applicant has exhausted all avenues of appeal including an application for leave brought before the High Court of Australia.  He has also sought to duplicate his application brought before the Commission whilst an appeal was pending to a superior court.  As has been highlighted in earlier authority including the decision of Samuel the Commission must ensure, by reason of public policy, that litigation does not proceed indefinitely. Not only is this Application without merit upon an analysis of evidentiary material but the conduct of the applicant conflicts with public policy in respect of the need for finalisation of litigation.

1. There being no material upon which any reconsideration of the earlier decision of the Commission may be embarked, and by reason of considerations of public policy, the Application for Reconsideration should be refused.

DECISION

1. The Application for Reconsideration brought pursuant to section 350(3) of the 1998 Act with respect to the Commission’s decision in Yun Fu Wang v Botany Hotel [2008] NSWWCCPD 25 is refused. The findings and orders in that matter are confirmed and the Application herein is dismissed.

COSTS

1. No order as to costs of the Application for Reconsideration.

Kevin O’Grady

Deputy President   

10 June 2009

I MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE