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

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

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

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. 4 Deputy President O'Grady described the application for reconsideration in the following terms: "15 …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.