Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Tanwar v Aslam [2022] NSWCA 149 Hearing dates: 08 August 2022 Decision date: 08 August 2022 Before: Leeming JA Decision: 1. Direct that the first and second respondents file and serve their submissions on the appeal on or before Monday 22 August 2022. 2. Stand the appeal over for directions in the Registrar's list on Wednesday 24 August 2022 with a view to its being allocated a date. 3. Grant leave to the Workers Compensation Nominal Insurer to relist the appeal before me for further directions if in the next seven days it forms the view that Mr Ghazi or his estate should continue as a respondent to the appeal. 4. Remove the third respondent as a party to the appeal, this order having effect from Tuesday 16 August 2022. Note that the effect of such order will not be to create any issue estoppel or res judicata against Mr Ghazi or his estate. Catchwords: PRACTICE – parties – misjoinder – third respondent to appeal died after appeal commenced – appellant challenged findings that worker was injured and that appellant was employer – third respondent contingently liable in event that appellant established that third respondent was the deemed employer – neither appellant nor third respondent had paid workers compensation insurance premiums – Nominal Insurer liable to indemnify worker but entitled to recovery from employer – risk that estate of third respondent might contest Nominal Insurer's entitlement to recover if not joined to this litigation – certainty that joinder of third respondent's estate would involve expense and time – many circumstances in which joinder would serve no end – third respondent removed from proceedings Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Probate Act 1898 (NSW), 69 Supreme Court Rules 1970 (NSW), Pt 78 r 55 Uniform Civil Procedure Rules 2005 (NSW), r 6.30, 7.10 Workers Compensation Act 1987 (NSW), s 145 Workplace Injury Management and Workers Compensation Act 1998 (NSW), Sch 1, cl 10 Cases Cited: Tanwar v Aslam [2021] NSWPICPD 30 Category: Procedural rulings Parties: Ramesh Tanwar (Appellant) Farooq Aslam (First Respondent) Workers Compensation Nominal Insurer (Second Respondent) Abdul Hameed Ghazi (Third Respondent) Representation: Counsel: Appellant in person F D Curran (First Respondent) R Hanrahan (Second Respondent) Solicitors: Carters Law Firm (First Respondent) HWL Ebsworth Lawyers (Second Respondent) File Number(s): 2021/00309660 Publication restriction: Nil Decision under appeal Court or tribunal: Personal Injury Commission Citation: [2021] NSWPICPD 30 Date of Decision: 5 October 2021 Before: Deputy President Elizabeth Wood File Number(s): A1-5498/19 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] EX TEMPORE Judgment 1. LEEMING JA: The Registrar has referred this matter to me, on the basis that the appellant, Mr Ramesh Tanwar, should show cause why the third respondent, Mr Abdul Hameed Ghazi, should not be removed from the appeal. After a constructive exchange with each of Mr Tanwar, who appears in person, Mr Curran who appears for Mr Farooq Aslam who has been found to have been the injured worker, and Mr Hanrahan who appears for the Workers Compensation Nominal Insurer, I have determined that Mr Ghazi should be removed as a party to this appeal. But it is desirable to set out the background which is far from straightforward. 2. As long ago as 2006, Mr Aslam was involved in an incident while driving a taxi T-1078. At around this time, Mr Tanwar was in the process of acquiring ownership of the taxi plates from Mr Ghazi. Much more recently, in late 2020, an Arbitrator in the Personal Injury Commission determined that Mr Tanwar was the bailor of the taxi, Mr Aslam suffered injury to his right knee and a psychological injury, and that Mr Aslam's employment was a substantial contributing factor to the injuries. A Presidential Member of the Commission dismissed an appeal from the Arbitrator's determination: Tanwar v Aslam [2021] NSWPICPD 30. It is from that appeal that Mr Tanwar has commenced proceedings in this Court. He is unrepresented but his written submissions were filed some three or four months ago. 3. The significance of Mr Tanwar being found to have been the bailor of the taxi lies in cl 10 of Schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). In short, where a taxi is supplied under a contract of bailment, its driver is taken by reason of that clause to be a worker employed by the person from whom the use of the vehicle or vessel is so obtained. 4. During the discussion today, two broad classes of issues have been raised. I summarise them without expressing any views about the underlying merits of either. The first is whether there was error in concluding that Mr Tanwar was the bailor, as opposed to Mr Ghazi. The Presidential Member set out the evidence bearing upon the transfer of certain taxi plates from Mr Ghazi to Mr Tanwar at about this time. In short, Mr Tanwar contends that it was Mr Ghazi, not himself, who at the relevant time owned the taxi. Secondly, Mr Tanwar contends that there were no injuries in fact suffered by Mr Aslam. 5. Sadly, the Registrar noted on 25 May 2022 that the third respondent has passed away. In response to the Registrar's invitation to show cause, Mr Tanwar has adduced evidence of emails and registered post sent by him to the widow of Mr Ghazi, to which he has received no response. He says that he is unaware of whether or not Mr Ghazi left a will, whether probate has been taken out, or whether in the absence of a will letters of administration have been taken out. His initial preference was for the appeal to proceed with Mr Ghazi continuing as the third respondent, but during argument I indicated to him that a deceased person cannot be a party to litigation, and that if he wished to bind by this appeal the estate of Mr Ghazi, steps would have to be taken to achieve that. UCPR r 6.30(1) provides that the proceedings do not abate as a result of his death if the cause of action survives, and r 6.30(2) empowers making orders for the joinder, removal or re-arrangement of parties. The first step would be to determine if Mr Ghazi left a will, in which case a notice may be issued under Pt 78 r 55 of the Supreme Court Rules 1970 (NSW) requiring an executor to take out probate. Such a notice engages s 69 of the Probate and Administration Act 1898 (NSW), and so either the named executor may take out a grant or renounce or be taken to have renounced. If necessary, an order may be made appointing a representative of the deceased person's estate. But at present it is not even known if Mr Ghazi left a will, which might require a subpoena. It is easy to see that much time and costs could be expended in attempts to have representation in this Court of all of the parties to the litigation in the Commission. 6. During the constructive discussions with the parties' representatives to which I have referred, I indicated the following. First, if Mr Tanwar's appeal is wholly unsuccessful, then it will not be necessary for Mr Ghazi's estate to be bound. The Nominal Insurer will make payments to Mr Aslam and be entitled to recover against Mr Tanwar. Secondly, if Mr Tanwar's appeal is successful insofar as he contends that Mr Aslam has suffered no injury then, once again, the joinder of Mr Ghazi's estate will not be necessary in order to resolve the appeal. Mr Aslam is represented on the appeal and is well placed to oppose at least that aspect of Mr Tanwar's appeal. Thirdly, if there is liability on the part of Mr Aslam's employer, then it is common ground that neither Mr Tanwar nor Mr Ghazi paid workers compensation insurance premiums in relation to the deemed employment of Mr Aslam as driver of taxi T-1078. In those circumstances, the Nominal Insurer is liable to indemnify the worker, but has rights under s 145 of the Workers Compensation Act 1987 (NSW) to recover from the employer such amounts as it has paid by way of indemnity. 7. Accordingly, if Mr Tanwar succeeds in relation to his not being the owner of the taxi plate, then he will not be indirectly liable and instead the Nominal Insurer will be obliged, if it seeks to recover amounts paid to Mr Aslam, to look to Mr Ghazi's estate. Whether or not that is a likely outcome within the permutations summarised above is something as to which it is not possible for me to express a view, but the parties no doubt will be better placed to do so. 8. There is a further complication. It may be (I express absolutely no view one way or the other because there is no evidence about this) that Mr Ghazi's estate is lacking in substance such that there is no practical purpose achieved by binding it to the outcome of this appeal. As Mr Hanrahan observed during argument, the Nominal Insurer was empowered in an appropriate case to waive its right to recover amounts paid. For the reasons I have already stated, the person who is contingently affected by this is the Workers Compensation Nominal Insurer. 9. The position therefore is that on the one hand there is the certainty of further delay and expense if steps are taken to join a representative of Mr Ghazi's estate. I was told without objection that Mr Aslam's claim was in abeyance in the Commission while Mr Tanwar's appeal challenged the finding that he was injured. On the other hand, there are multiple permutations by which this appeal may be resolved on which the joinder of Mr Ghazi's estate makes not a jot of difference. However, if Mr Ghazi's appeal fails on the issue of injury but succeeds on the issue of deemed employer, and it turns out that Mr Ghazi's estate warrants recovery proceedings by the Nominal Insurer, then if it is not joined to the appeal, there is a chance that it will dispute the findings made in this Court, leading to the possibility of further litigation. 10. Modern rules of court confer a choice in circumstances such as this. No longer is progress in the litigation brought to an end following the death of a party. In particular, power is conferred to order that the proceedings continue in the absence of a representative of the deceased person's estate: UCPR r 7.10(2)(a). 11. It seems to me that the course most consistent with s 56 of the Civil Procedure Act is to remove Mr Ghazi from the appeal, in accordance with UCPR r 7.10(2)(a), and make directions for the first and second respondents to file and serve their submissions on the appeal in the relatively near future, with a view to the appeal being heard and determined later this year. Some months have already passed since Mr Ghazi's death with no steps being taken to progress the appeal, and it would be most unfortunate if the result of further months delay and expense to the parties did not materially improve the position. The course that I favour was implicit in the Registrar's direction to show cause. I am conscious that the course I favour is accompanied by a risk that the appeal will not fully resolve this dispute, but the alternative is the certainty of delay and expense, and there are many permutations in which that delay and expense are wholly unnecessary. I further note that Mr Tanwar said that he wanted the appeal determined as speedily as possible, and the Nominal Insurer saw no reason why Mr Ghazi should not be removed as a party. 12. I am conscious that Mr Hanrahan who appeared for the Nominal Insurer stated that he had not obtained full instructions about the consequences of Mr Ghazi's estate not being joined to these proceedings. I indicated to him that the orders I propose would leave open to him the opportunity on behalf of the Nominal Insurer to take steps to join that estate. I expressed the view, to which he did not demur, that obtaining those instructions would be assisted by my provision of these short reasons, and that is why I have taken the course that I have. 13. Accordingly, I make the following directions. 14. HIS HONOUR: I will just interrupt myself, realistically I am looking for time for submissions from the Nominal Insurer and Mr Aslam in response to Mr Tanwar's submissions of April. Should I say two weeks? 15. CURRAN: Two weeks is adequate. 16. HIS HONOUR: Mr Aslam and the Nominal Insurer having informed me that two weeks is sufficient to supply submissions, I will direct: 1. That the first and second respondents file and serve their submissions on the appeal on or before Monday 22 August 2022. 2. I stand the appeal over for directions in the Registrar's list on Wednesday 24 August 2022 with a view to its being allocated a date. I expect the sorts of dates you will be getting will be in October or November. 3. I grant leave to the Workers Compensation Nominal Insurer to re-list the appeal before me for further directions if in the next seven days it forms the view that Mr Ghazi should continue as a respondent to the appeal. 4. I shall remove the third respondent as a party to the appeal, this order having effect from Tuesday 16 August 2022. I note that the effect of such order will not be to create any issue estoppel or res judicata against Mr Ghazi or his estate. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 August 2022