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. 16 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. 17 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'. 18 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." 5 He rejected the application for reconsideration (at [21], [23]) on the basis that the applicant had failed to present any material that could provide a basis to argue that the Commission should exercise its discretion to reconsider its previous decision and, also, because of the necessity for the Commission to ensure that litigation did not proceed indefinitely. 6 A party to any proceedings before the Commission constituted by a Presidential member who is aggrieved by a decision of that member in point of law, the party may appeal to the Court of Appeal: s 353(1), 1998 Act. However an appeal from an interlocutory decision, which the reconsideration decision was, cannot be made without this Court's leave: s 353(4). 7 The material placed before this Court on the application for leave to appeal can be described in similar terms to those used by Deputy President O'Grady. It includes much material which appears to relate to the earlier decisions as well as the document to which the Deputy President referred (at [8]) as referring to "…reconsideration of 'Arbitrator and D. president decision'" followed by reference to "s 329(A), 350(3), 378 Act 1998". As Deputy President O'Grady pointed out, the only relevant section was s 350(3). 8 In oral submissions the applicant appeared to seek to re-canvass the original decisions, rather than the reconsideration decision. 9 Regrettably the applicant does not have legal representation, and has not, so far as I can tell, had such at any of the critical stages of his proceedings in the Commission. It is difficult to extract from the voluminous materials included in the White Book prepared for the leave application the basis upon which the applicant seeks to challenge the reconsideration decision, let alone identify any "point of law" which could attract relief if leave were granted. To the extent I could pick up the words "error of law" in the materials, they related to a bald assertion that that error lay in the refusal of workers compensation. As I have sought to explain, that was not an error of law. 10 To the extent any other complaint can be discerned from those materials it appears to relate to the time in which the Commission required the applicant to file a reply (7 days) after an unidentified time (presumably the filing of the respondent's response), the fact that it rejected his reply when he sought to file it after 21 days, and possibly a complaint that some conduct on the part of the respondent's workers compensation insurer in relation to a specialist report occasioned the delay in him filing his reply. There are also many assertions of "bad faith" apparently indiscriminately directed to those who have been involved in the matter, whether as decision maker, medical expert or insurer. These "complaints" are made repetitively in the applicant's voluminous hand-written materials. I should add that today, the applicant sought to adduce further evidence from a medical practitioner. For reasons which the Court sought to explain to him, this Court is not concerned with errors of fact but has jurisdiction only to entertain errors of law on an appeal from a Presidential member. 11 I can discern no error of law identified by the applicant which would attract leave to appeal from the reconsideration decision. I have set out the history in greater detail than would otherwise be warranted in case the matter proceed elsewhere or yet another application is made in the future. 12 I would refuse the application for leave to appeal with costs. 13 HANDLEY AJA: I agree. 14 McCOLL JA: The order of the Court therefore is that the application for leave to appeal is refused with costs. ********** 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.