Iqbal v Hotel Operations Solutions Pty Ltd

Court of Appeal (NSW)|2022-07-01|Before: Ward P, Meagher JA, Bathurst CJ, McColl JA, Allsop P

[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.]

Judgment

THE COURT: By notice of motion filed on 16 June 2022, the applicant (Mohammed Javed Iqbal), who is self-represented, seeks a review of the dismissal by Meagher JA on 7 June 2022 of Mr Iqbal's notice of motion filed on 31 May 2022. In that notice of motion, Mr Iqbal sought an order pursuant to r 7.36(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) for referral for pro bono assistance in relation to his appeal brought under s 353 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the Act). That appeal is listed for hearing in this Court on 28 July 2022.

The decision the subject of the present application for review

As noted, the application for referral for pro bono assistance was made pursuant to r 7.36 of the UCPR. Meagher JA published reasons for the dismissal of the application (Iqbal v Hotel Operations Solutions Pty Ltd [2022] NSWCA 88), in which his Honour referred to what was said by Brereton JA in Renshaw v New South Wales Lotteries Corporation Pty Ltd [2021] NSWCA 41 (Renshaw) (at [10]-[12]) as to the requirement in r 7.36(1) that the Court be satisfied that the referral is in the interests of justice, including the need to husband the resources of that valuable and scarce resource that is represented by the goodwill of members of the legal profession who offer pro bono assistance; and that referral will rarely be in the interests of justice absent some signs of merit in a case. Brereton JA nevertheless also there observed that in cases devoid of merit a court may grant a referral for the purpose of advice if there is a prospect that such advice may assist the litigant to appreciate the defects in the case, with the result that unnecessary and futile litigation may be avoided.
The proceeding in respect of which Mr Iqbal sought pro bono assistance is Mr Iqbal's appeal to this Court from a decision of the Personal Injury Commission (constituted by Deputy President Snell) (Iqbal v Hotel Operations Solutions Pty Ltd [2021] NSWPICPD 40) handed down on 15 November 2021 in respect of a claim by Mr Iqbal for compensation for injuries to his cervical spine, lumbar spine and sequelae of the spinal injuries affecting Mr Iqbal's digestive system, as a result of the nature and conditions of his employment with the respondent as a hotel room attendant between 2008 and 2010 (see at [6] of the reasons of Meagher JA; and Mr Iqbal's notice of motion on the current application).
Meagher JA (at [6]) noted the findings of the arbitrator in respect of Mr Iqbal's claim - namely, that Mr Iqbal 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 thereto, thus constituting an injury within s 4(b)(ii) of the Workers Compensation Act 1987 (NSW) (Workers Compensation Act); that the injury to the cervical spine was deemed to have been sustained on 7 October 2010; and that as a result of that injury Mr Iqbal had developed a consequential upper gastrointestinal tract condition. The arbitrator was not satisfied that Mr Iqbal had established that there was any injury to his lumbar spine which arose out of or in the course of his employment.
Mr Iqbal appealed to the Personal Injury Commission against the arbitrator's decision. Meagher JA noted (at [7] of his Honour's reasons) that this appeal was limited to a determination as to whether the decision was or was not affected by any error of fact, law or discretion and to the correction of any such error (see s 352(5) of the Act). His Honour noted that the appeal to the Personal Injury Commission was made on two grounds. Those two grounds were described by his Honour at [8] as being, first, 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 and, second, 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.
Meagher JA noted that the Deputy President rejected each of those grounds of appeal (see at [8]).
His Honour then examined the grounds set out in Mr Iqbal's amended notice of appeal in this Court (see at [9]-[10]) and said that none of grounds 1 to 3 identified 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 as to the nature and cause of those injuries (and that ground 5 did not challenge any decision of the Deputy President in disposing of the appeal from the arbitrator, instead being directed to a permanent impairment assessment made on 2 March 2022 addressed to the injuries the subject of the arbitrator's certificate of determination dated 24 February 2021). (There was no ground 4.)
Meagher JA noted (at [13]) that, in the affidavit filed in support of the application for legal assistance, Mr Iqbal deposed that he was having difficulty dealing with the case for three reasons: first, his spinal injuries, which Mr Iqbal deposed had limited his physical capacity to deal with the case by himself; second, that he was on Centrelink disability support pension and had difficulty with the costs of the case; and, third, that his case was complex and he was not a lawyer (and thus had difficulty dealing with the case).
At [14], Meagher JA noted that Mr Iqbal had participated in the pro bono referral application in this Court by telephone; and that Mr Iqbal had identified the respects in which his spinal injuries limited his physical capacity as including his ability to travel from his home in Queensland to Sydney to conduct an appeal (but that Mr Iqbal did not suggest that he would not travel to Sydney to be present at the hearing of any appeal in the event that he was represented and did not suggest that he could not participate by telephone in the conduct of any appeal).
At [15], his Honour said that the short exchanges with Mr Iqbal indicated that Mr Iqbal had not given much consideration to the precise assistance he might request or take advantage of if it were available; that 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; and that if Mr Iqbal received assistance he would then decide whether or not he should continue to be self-represented. At [16], his Honour said that the exchanges with Mr Iqbal did not make apparent how the application for pro bono assistance might overcome any difficulties that Mr Iqbal had deposed he was experiencing with the cost of the appeal; and, as to the complexity of the case giving rise to difficulties, that Mr Iqbal compared the procedures within the Commission with those in this Court (which his Honour said Mr Iqbal described without elaboration as involving less guidance and requiring more input from him).
His Honour was not satisfied in those circumstances that the referral of Mr Iqbal for assistance under r 7.36 of the UCPR was in the interests of the administration of justice (see at [17]).
At [18], his Honour explained that the right of appeal which Mr Iqbal sought to pursue was limited to decisions involving errors of law; and said that the issues to which the grounds of appeal were directed were issues of fact which principally turned on his evidence and that of treating doctors. His Honour considered that it was not obvious that the examination of the proposed appeal would identify some error of law arising for determination; and that it was more likely that such advice as Mr Iqbal might obtain if there were to be a referral might include that Mr Iqbal had no right of appeal to this Court under s 353 of the Act. His Honour considered that it was not likely that such advice would avoid unnecessary and futile litigation, noting that (in the course of his exchanges with Mr Iqbal) Mr Iqbal had 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.
On that basis, Meagher JA dismissed the notice of motion.

Application for review

On the present application, Mr Iqbal relies upon his affidavit affirmed 6 May 2022 deposing to the three reasons by reference to which he was having difficulty dealing with the case (as summarised by Meagher JA in the impugned decision - see [12] above).
In his notice of motion seeking a review of the decision dated 7 June 2022, Mr Iqbal in effect sets out his submissions on the present review application and, in particular, his disagreement with his Honour's decision. Mr Iqbal seeks an order that the decision be "withdrawn" and that the order for pro bono referral be made (with a waiver of fees).
Mr Iqbal takes issue with his Honour's conclusion that the grounds of his appeal do not describe or identify any relevant question of law necessary to engage the right of appeal under the Act (and apprehends that his application for pro bono referral was refused due to that reason).
In the notice of motion Mr Iqbal submits, in effect, that it will be for the three appeal judges hearing that appeal to decide if his appeal grounds describe or identify any relevant question of law necessary to engage the right of appeal; and he complains that "making negative comments" about his grounds of appeal may negatively affect the judgment of those three appeal judges and cause injustice. Hence, Mr Iqbal seeks that this decision "or opinion" be withdrawn.
Further, in his notice of motion Mr Iqbal says that, if it were essential to determine whether his appeal grounds describe or identify any relevant question of law necessary to engage the right of appeal, Meagher JA could postpone his decision until determination of the appeal hearing and judgment (and he says that in this case he could at least get the fees waived). It is not easy to understand this submission - in effect, Mr Iqbal seems to be contemplating that the application for pro bono referral could have been postponed until after the hearing and judgment in the very appeal proceeding in respect of which the pro bono referral for legal assistance was sought, which does not, in our view, make sense. If, instead, this is simply a submission that publication of reasons could have been deferred until after the appeal judgment, there is no obvious basis for this; and in any event it is now too late, the reasons having already been published.
Having stated that the grounds of appeal were not "subjected to be assessed" in his notice of motion and that he did not submit any of the appeal books "here", Mr Iqbal goes on to say in his current notice of motion that he is submitting a copy of the Orange Appeal Book with this notice of motion (and he requests that a judge not take any decision or make any comment about his grounds of appeal). This seems to be a complaint that Meagher JA determined the application only with regard to the grounds as stated in the amended notice of appeal (i.e., without reference to the appeal books) but indicating a request on the present application for regard to be taken of the submissions in the Orange Appeal Book (albeit with a request for there to be no decision or comment about the detailed grounds of appeal said to be there set out).
In oral submissions, the argument appeared to be that without reference to the detailed grounds of appeal in the Orange Appeal Book and the other material in the appeal books, his Honour could not properly have determined that the grounds of appeal did not raise any question of law.
Mr Iqbal then sets out in the submissions contained in his notice of motion three examples of instances where he says that he described the detailed grounds in the Orange Appeal Book and addressed important issues or errors in the decision from which he is appealing. It is not necessary here to reproduce those examples.
Mr Iqbal's complaint is that he did not submit the Orange Appeal Book in his application for pro bono assistance; and he asks, rhetorically, how Meagher JA could determine that his grounds of appeal did not describe or identify any relevant question of law necessary to engage the right of appeal with there being just brief outlines of grounds of appeal in his amended notice of appeal.
In oral submissions, Mr Iqbal made reference to his written responses to the written submissions dated 17 June 2022 of the respondent that have been filed in relation to Mr Iqbal's substantive appeal in this Court. In those submissions the respondent addresses briefly the grounds of appeal and submits that grounds 1 to 3 establish no error in point of law and that ground 5 does not allege any error in the decision of the Deputy President.
In Mr Iqbal's written response to those submissions (to which the Court was taken in some detail in oral submissions on the present application), Mr Iqbal pointed to the matters on which he relies to establish the asserted errors. In particular, as to ground 1, which relates to the claimed error in the finding that he suffered a cervical spine injury within the meaning of disease injury in s 4(b)(ii) of the Workers Compensation Act rather than s 4(b)(i) of that Act, Mr Iqbal points to observations made in the various medical opinions which he says demonstrates error in the finding by Deputy President Snell that Mr Iqbal's cervical spine injury resulted primarily from degenerative change. Mr Iqbal cites from a medicolegal report dated 29 October 2020 of Dr Guirgis (drawing conclusions from use of the word "also") and complaining that Deputy President Snell "pick[ed] the secondary effect as the primary cause" of the cervical injury and categorised that injury as falling within the definition in s 4(b)(ii) of that Act. Mr Iqbal maintains that he contracted the cervical spine injury mainly due to the nature and conditions of his employment with the respondent, and that accordingly his cervical spine injury should be categorised as a "disease injury" under s 4(b)(i) of that Act.
Mr Iqbal also points to the opinion of Dr Long who assessed his case on 14 February 2022 and who stated that he agreed that no impairment for pre-existing injury or conditions should apply; and that there was insufficient evidence to indicate whether the demonstrated degenerative changes in the imaging studies of 2012 preceded the work injury or were caused by the nature and conditions of the work. Mr Iqbal argues that if there is no sufficient evidence of any pre-existing condition (degenerative change) in his cervical and lumbar spine before the work injury with the respondent, then Deputy President Snell could not decide that there was degenerative change which was aggravated by his working conditions (so as to conclude that the cervical spine injury would fall within s 4(b)(ii) of the Workers Compensation Act).
In essence, Mr Iqbal argues that there could not be degeneration unless there was a pre-existing condition; and therefore if there was no pre-existing disease there could be no finding of aggravation (see T 10-12).
As to ground 2, Mr Iqbal's written response referred to the conclusion reached in relation to his claimed lumbar spine injury (namely that the condition was most likely degenerative and not significantly caused by the employment). Mr Iqbal identifies a number of errors in relation to the declinature of this claim (including references to various reports in the Blue Appeal Book and to the discussion of these issues in the Orange Appeal Book). From these submissions, it is clear that Mr Iqbal maintains that the Deputy President erred by refusing to accept various medical opinions (such as those of Dr Dias and Dr Guirgis) on which Mr Iqbal relied to support his contention that the lumbar symptoms were causally related to his employment.
So, for example, in relation to the error identified by Mr Iqbal as "Error 2" in his response to the respondent's submissions dated 17 June 2022, reference is again made to the medical reports (including to the report of Dr Long) and Mr Iqbal argues that if degenerative change cannot be sufficiently evidenced as preceding his work injury then the symptoms "are definitely caused by the nature and conditions of [his] work (post traumatic degeneration)" or "[o]therwise, from where these [sic] degenerations come?".
As to ground 3, which relates to a factual finding as to the lack of a contemporaneous report of lumbar symptoms, Mr Iqbal identifies what he asserts to be a number of errors (including the refusal of the Deputy President to accept that reference to foot pain was contemporaneous evidence of symptoms attributable to lumbar injury) and Mr Iqbal points to the reference to "disc bulgings" in Dr Guirgis' report. Mr Iqbal also refers to further asserted errors related to this ground as discussed in the Orange Appeal Book.
Finally, as to ground 5, Mr Iqbal says that the decision of the Personal Injury Commission on 12 May 2022 is related to the medical assessment certificate and that the issues or errors in that decision are addressed in ground 3 (referring to particular pages and issues in the Orange Appeal Book); and he says that two of those issues are directly related to grounds 1 and 2 (see his response document at [53]).
Accordingly, Mr Iqbal requests that the decision about his grounds of appeal be withdrawn and that he be referred for free legal assistance (including waiver of fees).

Determination

As noted, Mr Iqbal seeks review of the decision made by Meagher JA to dismiss his application for pro bono referral for legal assistance in relation to his upcoming appeal. It is necessary for Mr Iqbal to identify relevant error on the part of his Honour.
As Meagher JA clearly appreciated, the power to refer a litigant to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance is conditioned on satisfaction that it is in the interests of the administration of justice so to do. Under the UCPR, various matters may be taken into account (see r 7.36(2)). The Court may not refer a litigant under the rule in the circumstances set out in r 7.36(2A) (none of which it is suggested here applies) unless satisfied that there are special reasons to do so.
In the present case, the only error identified by Mr Iqbal is in relation to his complaint that his Honour made a decision or expressed an opinion as to whether the grounds of appeal in the amended notice of appeal described or identified any relevant question of law necessary to engage the right of appeal under the Act by reference only to the grounds as stated in the amended notice of appeal (and not the "detailed grounds" set out in the Orange Appeal Book). However, Mr Iqbal accepts that the appeal books were not before his Honour and his Honour's attention was not drawn to them. There cannot have been any error on the part of Meagher JA in not having taken into account material that was not before him on the relevant application. Mr Iqbal says that he did not understand what was required on that application, however that does not establish error on the part of his Honour.
Pausing here, Mr Iqbal also appears to be concerned that his Honour's opinion (as to the competency of the appeal - i.e., as to whether the appeal grounds raise an error of law) will somehow influence or negatively affect the judgment of those judges who ultimately hear his appeal. There is no basis for any legitimate concern that this interlocutory decision could in some way affect the ultimate judicial determination of the appeal itself.
In our opinion, no error has been demonstrated in the exercise by Meagher JA of the discretion whether to refer Mr Iqbal for pro bono legal assistance. In particular, there was no error in his Honour approaching the matter by considering whether the grounds of appeal as set out in the amended notice of appeal, on their face, appeared to describe or identify any error of law in the decision of the Deputy President. Examination of the grounds of appeal provided to this Court for the purposes of this review supports his Honour's view that none of them identifies any error of law in the decision from which Mr Iqbal appeals.
We have not set out the whole of the material to which Mr Iqbal points in his submissions on the present application as going to his detailed grounds of appeal (by reference to which he argues that Meagher JA erred in refusing his application for pro bono material); not least because Mr Iqbal is concerned for there not to be discussion about those matters in advance of the hearing of his appeal. Suffice it simply to say that even by reference to the material that was not before his Honour, there is no obvious error in his Honour's view that none of Mr Iqbal's grounds of appeal raises questions of law, or alleges errors of law on the part of the Personal Injury Commission. Mr Iqbal is clearly aggrieved by the factual determinations of the Commission but that does not clothe this Court with jurisdiction (see s 353 of the Act).
In any event, it is apparent from his Honour's reasons that the refusal of Mr Iqbal's application for referral for pro bono legal assistance was not based solely on his Honour's view that the grounds of appeal did not raise any question of law, but also included his Honour's view as to the likely futility of such a referral (on the basis, in effect, that Mr Iqbal was unlikely to accept advice that did not accord with his firm belief as to the merits of his appeal).
Mr Iqbal's submissions on the present application amply support such a conclusion, in that Mr Iqbal's position seemed to be that if a referral were to be made he would be able to persuade a pro bono practitioner of the merits of his grounds of appeal were the practitioner to be of the opinion that the appeal lacked merit. While at one stage Mr Iqbal appeared reluctantly to accept that he might withdraw the appeal if pro bono legal advice were to be received that he did not have proper grounds for appeal (i.e., if the appeal was not competent) (see T 9), Mr Iqbal in general appeared convinced of the merits of his grounds of appeal and it seems unlikely that he would readily be persuaded otherwise.
Referral for pro bono legal assistance does not require any determination as to the merits of a litigant's case (or as to the competency of any appeal that the litigant may be seeking to bring), although an assessment of those matters is a relevant factor that may properly be taken into consideration in determining whether it is in the interests of the administration of justice to order such a referral (for the reasons set out in the decision of Brereton JA in Renshaw to which Meagher JA referred). Meagher JA explained why it was that he considered that a referral would be unlikely to avoid futile or unnecessary litigation (in effect, that Mr Iqbal appeared to be convinced of the merits of the appeal and unlikely to heed any advice that did not accord with his own views); and his Honour also addressed the three matters on which Mr Iqbal had based his application (as set out in his affidavit) and considered that it had not been shown that a pro bono referral would resolve those issues. His Honour's decision was thus not based solely on the view formed as to the competency of the appeal (i.e., as to whether the appeal grounds identified any error of law).
There has been no error or misapprehension of principle or law; nor any fundamental misapprehension of the facts; nor anything that would bespeak error in the House v The King (1936) 55 CLR 499; [1936] HCA 40 (House v The King) sense (see further Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353; [1949] HCA 26. Indeed, in House v The King, the plurality (Dixon J (as his Honour then was) Evatt and McTiernan JJ) said the following (at 504-505): The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its on discretion in substitution for his if it has the materials for doing so.
The decision of Meagher JA reveals no such errors. In those circumstances, the notice of motion filed 16 June 2022 should be dismissed with costs (although the ambit of any costs may be small since the respondent took no active part on the hearing of the notice of motion).
For completeness, it should be noted, first, that a referral for pro bono assistance would not necessarily result in Mr Iqbal receiving any pro bono assistance (since it is for Pro Bono Panel members to determine whether they are prepared to accept any such referral); second, that a referral for pro bono assistance may be limited in scope (and thus Mr Iqbal would not necessarily have obtained a referral for the conduct of the appeal as such even had his Honour determined that the application should be granted); and, third, that there is nothing to stop Mr Iqbal making his own enquiries of the Bar Association or Law Society or from a community legal centre for pro bono legal assistance (whether simply for the provision of legal advice as to the competency of the appeal or its merits; or for assistance in the conduct of the appeal) which Mr Iqbal acknowledged that he had not done.
For the above reasons, the following order should now be made: 1. Applicant's notice of motion filed 16 June 2022 be dismissed 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. Decision last updated: 07 July 2022

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