Iqbal v Hotel Operations Solutions Pty Ltd

MEAGHER JA: By his notice of motion filed on 31 May 2022, the applicant, Mohammed Iqbal, seeks an order for pro bono “legal assistance” under Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 7.36.

In Renshaw v NSW Lotteries Corporation Pty Ltd [2021] NSWCA 41 at [10]-[12], Brereton JA observed in relation to the requirement in r 7.36(1) that the court be satisfied that referral is in the “interests of the administration of justice”:

Mr Iqbal’s application is made in relation to his appeal brought under Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act), s 353 from a decision of the Personal Injury Commission (PIC) (constituted by Deputy President Michael Snell) of 15 November 2021 (Iqbal v Hotel Operations Solutions Pty Ltd [2021] NSWPICPD 40). That appeal is fixed for hearing on 28 July 2022.

Section 353 confers a limited right of appeal to this Court where the appellant “is aggrieved by” the decision appealed from “in point of law”.

That decision of the PIC constituted by the Deputy President dismissed Mr Iqbal’s appeal from part of the determination of the Workers Compensation Commission constituted by an arbitrator, Rachel Homan, which addressed questions of liability with respect to the proceedings commenced by him in the Workers Compensation Commission on 2 November 2020 (Iqbal v Hotel Operations Solutions Pty Ltd [2021] NSWWCC 61).

That claim was for injuries to Mr Iqbal’s cervical spine, lumbar spine and digestive system as a result of the nature and conditions of his employment with the respondent as a hotel room attendant between October 2008 and October 2010. Addressing that claim, the arbitrator found that the applicant had sustained an aggravation, acceleration, exacerbation or deterioration of underlying asymptomatic biological age-related changes in his cervical spine where his employment was the main contributing factor to that aggravation, acceleration, exacerbation or deterioration; thus constituting an “injury” within the meaning of Workers Compensation Act 1987 (NSW) (1987 Act), s 4(b)(ii). The arbitrator determined that the deemed date of injury to the applicant’s cervical spine was 7 October 2010. The arbitrator was also satisfied that as a result of that injury Mr Iqbal developed a consequential upper gastrointestinal tract condition. The arbitrator was not satisfied that the applicant had established that there was any injury, involving aggravation or otherwise, to his lumbar spine, which arose out of or in the course of his employment.

The applicant’s appeal to the PIC against the arbitrator’s decision was limited to a determination of whether that decision was or was not “affected by any error of fact, law or discretion, and to the correction of any such error” (WIM Act, s 352(5)).

The appeal was made on two grounds. The first was that the finding of injuries to the cervical spine should have been that the injuries were caused by his employment and did not involve any aggravation, acceleration, exacerbation or deterioration of any existing condition. The second was that the arbitrator erred in finding that Mr Iqbal had not established that he had also sustained injuries to his lumbar spine caused by his employment. The Deputy President rejected each of those grounds which required detailed consideration of the applicant’s evidence as to his work and medical treatment history as well as the opinions of various experts, some treating and some providing medicolegal assessments.

Mr Iqbal’s Amended Notice of Appeal to this Court, by grounds 1, 2 and 3, challenges the correctness of the Deputy President’s dismissal of the appeal in relation to the arbitrator’s finding of an aggravation injury to his cervical spine (ground 1); and dismissal of the appeal from the arbitrator’s conclusion that he had not established any injury, by aggravation or otherwise, to his lumbar spine (grounds 2 and 3).

There is no ground 4 and ground 5 does not challenge any decision of the Deputy President in disposing of the appeal from the arbitrator. Rather it is directed to a permanent impairment assessment made on 2 March 2022 which was addressed to the injuries the subject of the arbitrator’s certificate of determination dated 24 February 2021, as confirmed by the PIC.

None of grounds of appeal 1, 2 or 3 identifies any error of law of the Deputy President in dismissing the appeal from the arbitrator’s findings of fact as to whether there were injuries to Mr Iqbal’s cervical spine and lumbar spine and the nature and cause of those injuries.

The applicant represented himself in the proceedings before the arbitrator. The arbitrator records that he was “strongly encouraged” to obtain legal representation funded through the Workers Compensation Independent Review Office (WIRO) and declined to do so. The proceedings were conducted by telephone and Mr Iqbal participated orally and by the making of written submissions. He was also self-represented in the proceedings before the Deputy President which were conducted on the papers, including written submissions prepared by the applicant.

In his affidavit in support of his application for legal assistance, Mr Iqbal maintains that he was having difficulty in “dealing with the case [in this Court] due to the following reasons –

In this Court Mr Iqbal participated by telephone. During the course of oral exchanges he identified the respects in which his spinal injuries limited his physical capacity as including his ability to travel from his home in Queensland for the purpose of conducting an appeal in Sydney. He did not however suggest that he would not travel to Sydney to be present at the hearing of any appeal in the event he was represented. Nor did he suggest that he could not participate by telephone in the conduct of any appeal.

More generally, those short exchanges indicated that Mr Iqbal had not given much consideration to the precise assistance he might request or take advantage of if it was available. When asked whether he might seek advice as to the merits of his appeal Mr Iqbal indicated that he considered that his appeal had good prospects and that he would not be deflected from pursuing it in the face of legal advice suggesting otherwise. He also made clear that if he received assistance he would decide whether or not he should continue to be self-represented.

These exchanges did not make apparent how Mr Iqbal’s application for pro bono assistance might overcome any difficulties he was experiencing with the cost of the appeal. In elaboration of his statement that the case was “complex” and giving rise to difficulties, Mr Iqbal compared the procedures within the Commission with those in this Court, which he described without elaboration as involving less guidance and requiring more input from him.

In the circumstances summarised above I am not satisfied that the referral of Mr Iqbal for assistance under r 7.36 is in the interests of the administration of justice.

The right of appeal which he seeks to pursue is limited to decisions which involve errors of law. The issues to which the grounds of appeal are directed are issues of fact which principally turned on his evidence and that of treating and medicolegal experts. Those factual issues are thoroughly addressed by the arbitrator and in the decision of the Deputy President. On the face of those reasons, it is not obvious that the examination of Mr Iqbal’s proposed appeal will identify some error of law which arises for determination. It is more likely that such advice might include that Mr Iqbal has no right of appeal to this Court under WIM Act, s 353. However, it is not likely that such advice will avoid unnecessary and futile litigation. In the course of exchanges with Mr Iqbal he indicated that he had formed a view about the merits of his appeal and was not likely to abandon it in the face of such advice.

For these reasons I decline to make any referral under UCPR r 7.36 in respect of any aspect of Mr Iqbal’s appeal. His motion seeking an order to that effect is dismissed.