Wang v Botany View Hotel [2011] NSWSC 1487

Supreme Court New South Wales

Medium Neutral Citation: Wang v Botany View Hotel [2011] NSWSC 1487 Hearing dates: 16 November, 2 December 2011 Decision date: 02 December 2011 Jurisdiction: Common Law Before: Hislop J Decision: Confirm the Registrar's order that the summons be dismissed. The "Summons (Amended)" filed on 5 October 2011 also dismissed. Mr Wang to pay the defendant's costs of the application for review. Category: Principal judgment Parties: Yun Fu Wang (Plaintiff) Botany View Hotel (Defendant) Representation: In person (Plaintiff) C. Dezarnaulds (Defendant) Peter R. Murphy & Co. (Defendant) File Number(s): 2011/226498

Judgment 1HIS HONOUR: The plaintiff, Mr Wang, was employed by the Botany View Hotel. He alleged he sustained an incapacitating work injury in that employment on 9 August 2000. 2Mr Wang sought workers compensation from his employer. The claim was disputed. On 3 August 2007 Workers Compensation Commission Arbitrator, Mr Harvey, heard Mr Wang's application. He held: "[45] ...I am satisfied on the balance of probabilities that, whilst the applicant suffered an injury in the workplace on 9 August 2000, the cause of that injury was the fact that he had sustained a severe assault on the evening of the day before, 8 August 2000, that caused him to suffer a grand mal seizure which caused him to fall to the ground whilst carrying out his employment. [46] It follows that I find that the applicant's employment was not a substantial contributing factor to the injuries sustained at the workplace on 9 August 2000. [47] The applicant has established that he suffered an injury in the course of his employment, but has failed to establish that the employment was a substantial contributing factor to the injury. There accordingly must be an award for the respondent." 3Mr Wang sought leave to appeal to the Acting President of the Workers Compensation Commission. On 26 February 2008 leave to appeal was refused. 4Mr Wang sought leave to appeal from that decision to the Court of Appeal. The Court of Appeal refused leave on 17 September 2008. 5Mr Wang sought special leave to appeal to the High Court from the Court of Appeal decision. The High Court observed: "[3] The papers which the applicant has filed in support of his application for special leave to appeal are extremely difficult to understand. So far as they can be understood, they do not pose any question of law suitable for the consideration of this Court were special leave to be granted, or raise any possibility that an injustice has been done." 6Mr Wang sought a reconsideration by the Acting President of his 26 February 2008 decision. On 10 June 2009 the application for reconsideration was refused. 7Mr Wang sought leave to appeal to the Court of Appeal from that decision. The Court of Appeal held that the effect of the Workers Compensation decisions was: "[2] ...that the applicant's application for worker's 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 section 9A of the Workers Compensation Act 1987 (NSW)." The Court of Appeal dismissed the application for leave. 8In a letter dated 14 June 2011 the Registrar of the Workers Compensation Commission wrote to Mr Wang in the following terms: "I refer to the application for reconsideration you lodged with the Commission on 6 June 2011 and to the Commission's letter to you dated 28 April 2011. I confirm that the Commission has exhausted its jurisdiction with respect to the worker's compensation dispute relating to injuries suffered on 9 August 2000. As such, your application for reconsideration and supporting documentation are returned and no further action will be taken." 9In January 2001 Mr Wang's employer terminated his services. Mr Wang brought proceedings in the Federal Magistrate's Court. The basis for the claim was unclear. Those proceedings were dismissed on 16 February 2011. 10Mr Wang then sought leave to appeal to the Federal Court from that decision. Nicholas J refused the application for leave. His Honour, in his reasons for judgment dated 15 April 2011, stated: "The applicant has filed an affidavit in support of his application for leave to appeal. It contains a great deal of irrelevant matter and is largely incoherent. Nevertheless, I have read the affidavit and listened to the applicant's submissions, with a view to understanding whether the proposed appeal has any prospects of success. In my view it has none." 11On 13 July 2011 Mr Wang filed a summons against the employer in this Court. The summons described the type of claim being made as follows: "Civil workers compensation. (1) Act 1976 sect 25(1) (IAA) The appellate jurisdiction of the court in relation to an appeal from a judgement of the Federal Magistrates Court is to be exercised by (a) - solicitor made a false misconduct relate Federal magistrates made wrong decision, cause Federal Court refused established unfair dismiss case. (2) Act 1976 - sect 25(2) application (a) for leave appeal to court. - s 345 misrepresentative was no attend court, cause leave appeal. (3) Act 1976 sect 25(2)(b) for an extension of time, Respondent charge "unfair dismiss have 10 years"; "time limit". It relate s 85, 3(c), Industrial Relations Act 1996, time for making application "the conduct of the employer relating to the dismissal". (4) s 9AA(1) compensation under this Act is only payable in respect of employment - Employer made false dispute 10 years, on 14104/2011, two employer agreed that "Mr Wang employed, slip injury at work", s 5(2), 1992 Act, unreasonable adjustment to disability, may constitute direct disability. Impose an unjustifiable hardship on them. RELIEF CLAIMED 1. S 57 Employer covered work injury, refused pay; s57A Clothing Trade award. 2. OHS Employer made false relate workplace health, he aware certain breach and employer against workplace safety, OHS 8(1) Act 2000 NSW, pay $1.65 million." 12The summons was listed before Registrar Bradford on 22 July 2011. The defendant's solicitor sought an order dismissing the summons with costs. The Registrar dismissed the summons. In doing so he said: "The relief that is sought in the summons by Mr Wang is relief that I do not believe that this Court can entertain on the basis of the summons as it is presently drawn and, although I can understand Mr Wang purportedly has suffered an injury at work, it would seem that he has been to the Commission and had that matter determined. I do not believe that the present summons can stand. On that basis the summons is dismissed." 13The Registrar declined to order costs against Mr Wang as he said "it is quite clear that Mr Wang has a number of difficulties in understanding what is taking place and what he has filed here and what has taken place in the past". 14On 16 August 2011 Mr Wang filed a Notice of Motion seeking "application reivw (sic) 27/07/11 decision pursuant to Part 13 r 13.4. of the Uniform Civil Procedure Rule 2005 for the reason outlined in the affidavite (sic)." 15On 5 October 2011 Mr Wang filed a "Summons (Amended)". In that document the relief claimed was as follows: "Employer agreed work injury and lie no work injury, and identify, pay, $1.65 million. Employer made false through medical report, common law duty reference relate information, the Federal Privacy Act 1988." 16The application for review came before me as Duty Judge on 16 November 2011. Mr Wang represented himself on the review. He said he preferred to appear for himself. When necessary he had the services of an Mandarin interpreter. The matter was adjourned part heard to enable the judgment of the Registrar to be obtained. The hearing resumed today. 17The claim which Mr Wang sought to bring on the summons was not clearly articulated and was difficult to understand. Mr Wang addressed the Court and I have read the documentary material relied upon by him. However, he failed to clarify the nature of the case sought to be made by him. He did not identify any claim which was appropriately made by summons in the Supreme Court, or show that any such claim had any prospects of success. 18At one stage Mr Wang appeared to assert that he wished to bring a common law action for damages for his work injury, though this does not appear from the terms of the summons. Such a claim would not be supportable in the light of previous findings of no compensable injury, the limiting and capping provisions of the relevant legislation and the time limit for commencing such claims. 19I agree with the Registrar that the present summons cannot stand. I confirm the Registrar's order that the summons be dismissed. For more abundant caution I order that the "summons (amended)" filed on 5 October 2011 also be dismissed. I order Mr Wang to pay the defendant's costs of the application for review.