Creighton v Coal & Allied Mining Services Pty Ltd

The legislation and the principles of law to be applied

1. The relevant provisions of 151D are as follows: "151D Time Limit for Commencement of Court Proceedings against Employer for Damages. (1) (Repealed) (2) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concern against the employer liable to pay that compensation more than three years after the date on which the injury was received, except with leave of the court in which the proceedings are to be taken. (3) The Limitation Act 1969 does not apply to or in respect of court proceedings to which this section applies."
2. The plaintiff bears the onus of proving that it is fair and just for a limitation period to be extended and the defendant bears the evidentiary onus of proving actual prejudice beyond that presumed to occur by reason of effluxion of time.
3. The general principles applying to applications of this kind have recently been reviewed by McColl JA in Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447 at [43]-[52], where her Honour notes that s 151D(2) does not spell out specific criteria, but confers a broad discretion (at [44]-[45]).
4. As to the exercise of discretion, Mr Benson relies generally on the principles of law as set out in Salido v Nominal Defendant (1993) 32 NSWLR 524. The nature of that discretion was more recently explained, with reference to this decision in particular, by Basten JA in Strasburger Enterprises Pty Ltd (t/as Quix Food Stores) v Serna [2008] NSWCA 354 as follows: "With respect to this and similar provisions, which contain no express indication of the matters to be considered in relation to an application to extend time, "the limits of the discretion are to be found in the subject matter, and the scope and purpose of the statute": Salido v Nominal Defendant (1993) 32 NSWLR 524 at 430F (Gleeson CJ); see also [535-539] Kirby P and [541] Powell JA. Subsequently, the High Court provided guidance as to the correct approach in Brisbane South Regional Health Authority v Taylor(1996) 186 CLR 541, although the majority judgments did not speak in identical language and were concerned with the limitation provision which provided some guidance as to factors to be taken into account. As explained in Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 at [96] by McColl JA: "Brisbane South is authority for the proposition that an application for an extension of time under limitation legislation should be refused if the effect of granting of the extension would result in significant prejudice to the potential defendant … "Significant prejudice means such prejudice as would make chances of a fair trial unlikely … For a trial to be fair, it need not be perfect or ideal …"""
5. McColl JA went on to note in Howley v Principal Healthcare Finance Pty Ltd at [50]: "It should be borne in mind, as Whealy JA (Hodgson and McColl JJA agreeing) explained in Nominal Defendant v Harris [2011] NSWCA 70; (2011) 57 MVR 492 (at [45]), that Ipp JA's comments "were intended to provide useful and cautionary guidance as to the way a court exercising a broad statutory discretion to extend a limitation period will ordinarily respond [but] do not ... supplant the language of the statute [nor] ... override the broad discretionary exercise entrusted to a court to take into account all the relevant circumstances in determining what is fair and just.""
6. This is a very clear case of a diligent worker continuing to work on despite his injury and being unaware, not only of his common law rights, but of the limitation period.
7. The material before me confirms that there is an arguable case and that the plaintiff has suffered serious injury (ss 151G and 151H of the Act). I also note that he has taken steps to mitigate his loss and that he took timely and reasonable steps to seek legal advice.

The issue of presumptive prejudice

1. As to presumptive prejudice that arises by reason of delay, the defendant relied on the generally accepted principles, which I note have been summarised by Tobias JA in Hornby v Nominal Defendant [2007] NSWCA 222 at [58]: "The principles relevant to the power of a Court to make an order extending time if it thinks such an order is just and reasonable in all the circumstances were articulated in Smith at [122]-[129] by Santow JA, with the agreement Handley and Basten JJA the latter differing from the majority as to their application to the facts of the case. They can be summarised in the following propositions: (a) Since the purpose of limitation periods is to preclude stale claims which a Defendant would find difficult to defend given the effluxion of time, it is prima facie prejudicial to a Defendant to allow the commencement of an action outside that period. This is because the Defendant suffers presumptive prejudice where an extension of the limitation period is granted. (b) Although it is a truism that where there is delay the whole quality of justice deteriorates and that such deterioration may in some cases be palpable such as where a crucial witness is dead or an important document has been destroyed, in other cases that deterioration in quality is not recognisable even by the parties. As the United States Supreme Court pointed out in Barker v Wingo (1972) 407 US 514 at 532, cited by McHugh J in Taylor at 551: "What has been forgotten can rarely be shown". (c) Nevertheless, presumptive prejudice of itself may not disentitle the Plaintiff to the leave sought. Although it may be irrelevant that an order extending time would not put the Defendant in any worse off position than it would have been if the action had been commenced within, but towards the end of, the limitation period (Taylor at 554), once the potential liability of the Defendant has ended then its capacity to obtain a fair trial, if an extension of time were granted, is relevant and important. To subject the Defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the Plaintiff of the right to reinstate the lost action. This will often be the case where the Plaintiff is without fault and no actual prejudice to the Defendant is readily apparent. The position is different where a Defendant, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact: Taylor at 555. (d) Where actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the Defendant has proved the fact or the real possibility of significant prejudice: Taylor at 555. (e) "Significant prejudice" means such prejudice as would make the chances of a fair trial unlikely. However, for a trial to be fair, it need not be perfect or ideal."
2. The plaintiff is out of time only by a short period, in circumstances where the details of his accident were known to the defendant from the first, and the subject of a thorough investigation. There is no claim of actual prejudice and, I am satisfied, on the facts in this case, that any presumptive prejudice would be of the slightest nature. I am satisfied that a fair trial of the proceedings can take place.

Concluding remarks

1. This is a clear case where the granting of leave under s 151D is warranted.
2. The parties have agreed on the appropriate costs order for the application.
3. To save time, paperwork and (if possible) filing fees, I have directed that the statement of claim be filed in the same file as the summons.

Orders 1. Pursuant s 151D Workers Compensation Act 1987 (NSW), make orders in accordance with paragraph 1 of the Summons filed 21 October 2016 extending time for commencement of proceedings by the plaintiff against the defendant to 19 December 2016. 2. Grant leave to the plaintiff to file the Statement of Claim in these proceedings (2016/319889) and in those circumstances request the Registry to dispense with a further filing fee. 3. Costs of the Summons to be costs in the cause. 4. List the matter for directions before the Registrar on Thursday 19 January 2017.

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