Joseph Rocky D’Agostino v Fire and Rescue NSW

Decision date: 16 December 2025

Jurisdiction: Civil

Before: Cole DCJ

Decision: (1) The application for leave to institute proceedings under the Felons (Civil Procedure) Act 1981 (NSW) is refused and the plaintiff’s Notice of Motion dated 21 March 2025 is dismissed.
(2) The defendant’s Amended Notice of Motion dated 18 February 2025 is dismissed.

Catchwords: CIVIL PROCEEDINGS – Felons (Civil Proceedings) Act 1981 – leave to commence proceedings – time limits under Limitation Act 1969 and Workers Compensation legislation

Legislation Cited: Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW)
Criminal Code Act 1995 (Cth)
Felons (Civil Proceedings) Act 1981 (NSW)
Limitation Act 1969 (NSW)
Workers Compensation (Benefits) Amendment Act 1989 (NSW)
Workers Compensation Act 1987 (NSW)
Workers Compensation Legislation Further Amendment Act 2001 (NSW)
Workers Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited: Attileh v State Rail Authority (2005) 62 NSWLR 439; [2005] NSWCA 64
TS v The State of New South Wales [2012] NSWSC 1649
Wilson v State Rail Authority of New South Wales [2010] NSWCA 198
Wilson v State Rail Authority of NSW & Anor [2009] NSWSC 537

Category: Procedural rulings

Parties: Joseph Rocky D’Agostino (Plaintiff)
Fire and Rescue NSW (Defendant)

Representation: Counsel:
T Meakes (Plaintiff)
M Best (Defendant)
Solicitors:
Monaco Solicitors (Plaintiff)
McCabes (Defendant)

File Number(s): 2024/00164847

Publication restriction: Nil

JUDGMENT

1. The applicant, Mr Joseph D’Agostino, filed a statement of claim in this court on 3 May 2024 seeking damages for injuries allegedly suffered by him as the result of the negligence of the respondent, Fire and Rescue NSW (FRNSW), during the period from 20 May 1980 to 23 June 1985 when Mr D’Agostino was a fireman employed by FRNSW.

2. FRNSW filed a defence on 24 September 2024 in which it was pleaded (among other things) that Mr D’Agostino’s claim was not maintainable under the Limitation Act 1969 (NSW) or under ss 151D and 151E of the Workers Compensation Act 1987 (NSW) (“the 1987 Act”) and/or ss 313, 314 and 319 of the Workers Injury Management and Workers Compensation Act 1998 (NSW) (“the 1998 Act”).

3. FRNSW also filed a Notice of Motion, amended on 18 February 2025, seeking to have the proceedings dismissed on the basis that the plaintiff’s claim is not maintainable pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW). Further, the Notice of Motion sought the dismissal of the proceedings on the basis that the claim is statute barred under the Limitation Act 1969 (NSW) and the 1987 Act and the 1998 Act.

4. Mr D’Agostino filed a Notice of Motion on 21 March 2025 seeking leave to continue proceedings pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW). I will treat this as an application for leave to be granted, retrospectively, to institute the proceedings under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW).

Circumstances of the application

5. Mr D’Agostino is presently incarcerated, having been convicted on three counts of a serious indictable offence in the Supreme Court of New South Wales on 26 March 2021. An appeal in the Court of Criminal Appeal quashed the convictions in respect of two of the counts (“counts 2 and 3”), but the conviction in relation to one of the counts (“count 1”), to which the applicant pleaded guilty, remains in place. The Court of Appeal remitted the matter for re-trial in respect of counts 2 and 3 and for re-sentencing on count 1. The maximum penalty in respect of count 1, which was an offence contrary to ss 11.5(1) and 307.1(1) of the Criminal Code Act 1995 (Cth), is life imprisonment.

6. The Felons (Civil Proceedings) Act 1981 (NSW) provides, in ss 4 and 5:

4 Leave to sue required for persons convicted of serious indictable offences

A person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in any court except by the leave of that court granted on application.

5 Grant of leave

A court shall not, under section 4, grant leave to a person to institute proceedings unless the court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings.

7. There is no doubt that Mr D’Agostino requires leave under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) to institute the proceedings. Consequently, the proceedings have not been instituted, because leave has not been granted to date.

8. FRNSW relied upon an affidavit of Mr Leyton Hawkes dated 9 December 2024 and an affidavit of Ms Reanna Roberts dated 15 May 2025.

9. Mr D’Agostino relied upon two affidavits of Ms Samantha Hazra, both dated 21 March 2025.

Requirements of s 4 of the Felons (Civil Proceedings) Act 1981 (NSW)

10. I am required, under s 5 of the Felons (Civil Proceedings) Act 1981 (NSW), to consider whether the proceedings Mr D’Agostino wishes to institute are an abuse of process, and whether there is a prima facie ground for the proceedings.

11. The principles were considered in TS v The State of New South Wales [2012] NSWSC 1649 by Wilson J at [11] – [14]:

11 Thus, there are two statutory pre-requisites to a grant of leave: prima facie there is a ground for the proceedings; and the proceedings are not an abuse of process. Those two criteria present a relatively low threshold: SW v State of New South Wales [2010] NSWSC 966. See also Mr D v Ms P [2020] NSWCA 174.

12 A ground which is, on its face, arguable and thus not entirely hopeless, should satisfy both, since an arguable claim is not ordinarily an abuse of process. The test was considered in Application of Malcolm Huntley Potier [2012] NSWCA 222 at [17], where Allsop ACJ and Basten JA said:

“Taken in its statutory context, it is properly understood as referring to a ground which on its face is not hopeless or unarguable. That test requires reference to the legal principles invoked by the cause of action upon which the claim is based and reference to the factual allegations contained in the proposed pleading.[...] As with a summary dismissal application, the court is not required to embark upon a detailed analysis of the claims and the evidence which might support them, but rather is to form a broad impression as to whether a claim enjoys a realistic prospect of success and is thus not “hopeless” or “unarguable”. Different expressions used from time-to-time do not indicate any difference in the standard to be applied.”

13 It is neither necessary nor possible, for the Court to make an assessment of the merits of the plaintiff’s claim; what is required is that the Court “form a broad impression” as to whether the claim is an arguable one. The plaintiff’s detailed police statement of 10 October 2018, together with information as to the circumstance of the employment of the alleged abuser and the role he had within the Corrections system, lead me to conclude that the Claim is arguable. There is no basis upon which to conclude that it is an abuse of process.

14 Perhaps a little unusually, the Court’s leave is sought retrospectively, since the Claim has already been filed. That does not, however, invalidate the claim.

Is there a prima facie ground for Mr D’Agostino’s claim?

12. Mr D’Agostino’s claim is a claim for damages for injuries arising from the alleged negligence of FRNSW, which was his employer at all relevant times, in failing to take reasonable measures to protect him from sexual abuse in the course of his employment. It is claimed that FRNSW is vicariously liable for sexual assaults allegedly perpetrated by its employees. In his statement of claim, Mr D’Agostino pleads a number of instances of alleged sexual abuse in the course of his training at the Training College, Alexandria, from 31 March 1978, and, subsequently, in the course of his posting at the Maroubra Fire Station. Mr D’Agostino became a fourth-class fireman on 1 October 1979. Mr D’Agostino was posted at the Maroubra Fire Station from 20 May 1980 and ceased attending for duty on 23 June 1985 when he sustained a back injury. Mr D’Agostino’s employment with FRNSW ended on 11 November 1987. The alleged instances of sexual abuse are, therefore, alleged to have occurred between 31 March 1978 and 23 June 1985.

13. The question of whether Mr D’Agostino is within time to institute proceedings can conveniently be considered in this context. FRNSW have argued that Mr D’Agostino’s claim is statute barred and is thus not maintainable.

Limitation Act 1969 (NSW) argument

14. The Workers Compensation Act 1926 (NSW) (“the 1926 Act”) was repealed at 4pm on 30 June 1987, when it was replaced by the 1987 Act.

15. The 1926 Act permitted the recovery of common law damages (see s 64) as an alternative to the recovery of compensation under the 1926 Act. No time was specified in the 1926 Act as to when an action for common law damages had to be commenced. The Limitation Act 1969 (NSW) therefore applies to a common law claim arising under the system provided for by the 1926 Act.

16. At all material times, the Limitation Act 1969 (NSW) has provided, in s 14 (with some irrelevant exceptions), that an action founded on tort is not maintainable if it has been brought after the expiration of a limitation period of six years from the date upon which “the cause of action first accrues to the plaintiff”.

17. The action accrued to Mr D’Agostino when all the elements of the alleged tort had come into existence. The alleged assaults occurred in 1978 and, probably, around 1980, but, in any event, no later than 23 June 1985.

18. Mr D’Agostino was under the care of Dr McPherson, psychiatrist, in the United Kingdom from at least 2000 and was being prescribed medication for mental illness (CB p 278).

19. Mr D’Agostino made a statement for the purposes of this matter on 20 March 2025 (CB p 289). He was then 65 years old. He said:

13. Between approximately 2002 and 2014, I resided intermittently in the United Kingdom …

14. I recall being significantly unwell mentally during my 20’s, 30’s, 40’s, 50s and 60’s that is unable to work full-time.

…

16. I recall whilst working with the defendant my alcohol intake gradually increased after the episodes of injury to the point of daily heavy drinking.

17. In fact I have been drinking and taking various drugs to excess ever since the injuries sustained in my employment with the defendant in an effort to mask the horrible memories of the episodes at the Fire Brigade.

20. Dr Olav Nielssen, psychiatrist, said, in his report of 12 November 2016 in relation to Mr D’Agostino (CB p 75 - 76):

When asked about his substance abuse, Mr D’Agostino said that he developed a pattern of heavy drinking during ten years in the Fire Brigade, when he said he found it helped him to deal with some of his experiences at work. He said “I went through a few bad times in the fire brigade…I went to the Luna Park fire … from the time I went to that fire I was drinking more … I did not know what depression was”. He said that his heavy drinking continued after moving to England …

…

He said that he also affected [sic] by an abusive initiation when he joined the Fire Brigade, and a number of traumatic experiences during his service. He did not report any contact with Fire Brigade counsellors, but said “I needed to … but I did not know what depression was … I started drinking and I fell off the rails a bit”.

21. Dr Nielssen, in his report, also said that Mr D’Agostino was aware of the diagnosis of one of his family members with a form of bipolar disorder.

22. On the basis of the material before me, Mr D’Agostino’s action in negligence accrued to him, at the earliest, in about 1980 and, at the latest, in 2000 when he was diagnosed with a psychiatric illness (perhaps not for the first time). Mr D’Agostino was clearly aware of the link between the alleged incidents during his service in the Fire Brigade and his mental illness by 28 October 2016, when he saw Dr Nielssen.

23. Division 6 of Part 2 of the Limitation Act 1969 (NSW) does not apply to Mr D’Agostino’s claim because the acts alleged to have resulted in injury occurred well prior to 28 November 2002 when Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) came into operation (see s 50A(2) Limitation Act 1969 (NSW)).

24. The Limitation Act 1969 (NSW) provides, in ss 57B and 58, relevantly:

57B Interpretation

(1) For the purposes of this Subdivision—

…

(b) the material facts relating to a cause of action include the following—

(i) the fact of the occurrence of negligence nuisance or breach of duty on which the cause of action is founded,

(ii) the identity of the person against whom the cause of action lies,

(iii) the fact that the negligence nuisance or breach of duty causes personal injury,

(iv) the nature and extent of the personal injury so caused, and

(v) the extent to which the personal injury is caused by the negligence nuisance or breach of duty,

(c) material facts relating to a cause of action are of a decisive character if, but only if, a reasonable person, knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing—

(i) that an action on the cause of action would (apart from the effect of the expiration of a limitation period) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the cause of action, and

(ii) that the person whose means of knowledge is in question ought, in the person’s own interests, and taking the person’s circumstances into account, to bring an action on the cause of action,

(d) appropriate advice, in relation to facts, means the advice of competent persons, qualified in their respective fields to advise on the medical legal and other aspects of the facts, as the case may require,

(e) a fact is not within the means of knowledge of a person at a particular time if, but only if—

(i) the person does not, at that time, know the fact, and

(ii) in so far as the fact is capable of being ascertained by the person, the person has, before that time, taken all reasonable steps to ascertain the fact, and

(f) limitation period means a limitation period fixed by an enactment repealed or omitted by this Act or fixed by or under this Act.

…

58 Ordinary action

(1) This section applies to a cause of action founded on negligence nuisance or breach of duty, for damages for personal injury, not being a cause of action which has survived on the death of a person for the benefit of the person’s estate under section 2 of the Law Reform (Miscellaneous Provisions) Act 1944, and not being a cause of action which arises under section 3 of the Compensation to Relatives Act of 1897.

(2) Where, on application to a court by a person claiming to have a cause of action to which this section applies, it appears to the court that—

(a) any of the material facts of a decisive character relating to the cause of action was not within the means of knowledge of the applicant until a date after the commencement of the year preceding the expiration of the limitation period for the cause of action, and

(b) there is evidence to establish the cause of action, apart from any defence founded on the expiration of a limitation period,

the court may order that the limitation period for the cause of action be extended so that it expires at the end of one year after that date and thereupon, for the purposes of an action on that cause of action brought by the applicant in that court, and for the purposes of paragraph (b) of subsection (1) of section 26, the limitation period is extended accordingly.

(3) This section applies to a cause of action whether or not a limitation period for the cause of action has expired—

(a) before the commencement of this Act, or

(b) before an application is made under this section in respect of the cause of action.

25. Mr D’Agostino consulted Slater and Gordon Lawyers on 6 May 2021. This led to Slater and Gordon Lawyers sending a letter to the Proper Officer, Fire and Rescue NSW on 28 November 2022 on behalf of Mr D’Agostino, and presumably on his instructions, which said, in part (CB p 264):

Whilst stationed as a probationary fireman at Alexandria Fire Station, in Alexandria in the State of New South Wales between 21 June 1978 and 10 October 1978, Joseph instructs that he was sexually abused on the first occasion during what was described as a ‘hazing ceremony’ and on at least 4 further occasions following this.

…

It is alleged that the State ought to be held vicariously liable for the sexual assaults committed against the Claimant by its employed firemen at Alexandria Fire Station or alternatively in negligence for failing to take reasonable precautions for his safety under the care of the NSW Fire Brigades.

…

We refer you to section 50D of the Limitation Act 1969 (NSW) and advise that our client did not receive any legal advice in respect to the injuries sustained in the incidents outlined above until he first approached our office on 6 May 2021.

Consequently, this cause of action became discoverable on 6 May 2021, meaning the Claimant is in a position to file proceedings in this matter up to and including 6 May 2024.

26. As I have said, on the material before me, Mr D’Agostino’s cause of action accrued, at the latest, in 2000. Division 3 of Part 3 of the Limitation Act 1969 (NSW) applies only to causes of action which accrued before 1 September 1990 (s 57A), but creates a right to an extension of time, in s 57B and s 58 upon the discovery by the applicant of a material fact of a decisive character. The question of when a material fact became known is different from the question of when the action accrued.

27. Mr D’Agostino had the advice of Slater and Gordon Lawyers by 28 November 2022, and probably earlier, given that he first consulted them on 6 May 2021. He had, therefore, at least by 28 November 2022, received “appropriate advice” within the meaning of s 57B(c) of the Limitation Act 1969 (NSW). As both parties’ submissions assume that the advice of Slater and Gordon Lawyers can be characterised as “appropriate advice” in relation to “material facts relating to a cause of action” for the purposes of s 57B(1)(c), then, on the basis of the material before me, the maximum extension of the limitation period which could be ordered under s 58 of the Limitation Act 1969 (NSW) is one year from 28 November 2022, which is 27 November 2023. The statement of claim was filed on 3 May 2024, and was ineffective to commence proceedings because leave had not been sought or obtained under the Felons (Civil Proceedings) Act 1981 (NSW). Proceedings have not been validly instituted.

28. It was argued, in Mr D’Agostino’s case, that the cause of action accrued on 6 May 2021, when Mr D’Agostino was first given advice by Slater and Gordon Lawyers. I reject that argument, for the reasons set out above. All of the elements of the action were in existence and known to Mr D’Agostino by 2000 and he demonstrated this to Dr Nielssen in 2016.

29. It was further argued, in Mr D’Agostino’s case, in the alternative, that the cause of action accrued on 23 January 2024 when Dr Martin Allan, psychiatrist, provided a report in relation to Mr D’Agostino. Clearly, however, Dr Allan’s report was preceded by similar reports, referred to above, which show that Mr D’Agostino was aware that all of the elements of his cause of action existed many years before.

The argument under the Workers Compensation Legislation

Prior Claim

30. On 23 June 1985, during his employment with FRNSW, Mr D’Agostino suffered a back injury whilst forcing open a car bonnet. Initially, GIO, the relevant workers compensation insurer, accepted the claim. Subsequently, on 10 September 1986, GIO declined liability. On 12 November 1986, Mr D’Agostino commenced proceedings in the Compensation Court seeking weekly and other compensation. The claim was for “severe injury to back and right leg”. The particulars of incapacity in the claim were “Total incapacity from 23 June, 1985 to August 1986. Partial incapacity deemed total pursuant to S**ection 11(2) from August, 1986 to date and continuing”.

31. On 9 November 1988 the plaintiff applied to the Compensation Court for the redemption of his entitlements to workers compensation. The order of the Compensation Court, with the agreement of the parties, was:

1 Liability of employer to make weekly payments may be redeemed in whole as from 31 March 1978 by the payment of $25,000 in addition to any payments made.

2. Employer to pay worker’s costs (1) Qualifying fee. Advice on evidence.

3. Noted that the worker agrees that the said sum also redeems liability under sections 10 and 16.

4. Noted that the worker undertakes to the employer to execute a common law release if called upon to do so.

Other orders or notations:-

1. Amend para 5 to allege

(a)(ii) nature and conditions of employment as a fireman from 31.3.1978.

2. Amend para 6 to add

left leg, whole of spine, both upper limbs neck + functional overlay.

32. Mr D’Agostino signed a consent to the redemption application on 9 November 1988. The consent said:

In giving this consent I appreciate that the payment of the lump sum… will bring to an end as from 31/3/78 my right to all entitlements under the Workers Compensation Act 1926 in respect of the injury(ies) the subject of the said Short Minutes which I have or may have in the future …

33. It was suggested, on behalf of the FRNSW, that the redemption of Mr D’Agostino’s workers compensation claim on 9 November 1988 included the injuries the subject of the present applications on the basis that the order of the Compensation Court amended the application to include “functional overlay”. I reject that argument. “Functional overlay” is a term used in medicine to describe adverse psychological responses to physical injuries which aggravate the perception of the symptoms of those physical injuries. In context, the “functional overlay” referred to in the order was functional overlay arising from the physical injuries to the left leg, whole of spine, both upper limbs and neck. None of the medical reports describe the psychiatric injuries the subject of Mr D’Agostino’s claim as a functional overlay.

34. It was argued, on behalf of Mr D’Agostino, that the consent to the redemption application signed by Mr D’Agostino did not prevent him from bringing the action the subject of the statement of claim. I agree.

35. It was submitted in FRNSW’s case that, when the 1987 Act came into force, the right to make a common law claim was abolished. However, that right was reinstated in a modified form by the Workers Compensation (Benefits) Amendment Act 1989 (NSW). In the reinstated form, there was a three year time limit from the time the injury was sustained within which proceedings claiming damages at common law could be instituted. A discretionary power to extend time was provided for in s 151D of the 1987 Act.

36. It was argued in Mr D’Agostino’s written submissions that none of the workers’ compensation legislation which came into effect subsequent to 1985 applied to Mr D’Agostino’s common law claim.

37. The 1998 Act created a new administrative scheme for damages for workplace injuries. The 1998 Act provides, in s 60:

60 Liability, benefits, common law and other matters

(1) Provisions relating to a worker’s entitlement to compensation, the benefits payable, common law remedies and other matters are contained in the 1987 Act.

(2) The 1987 Act is, by the operation of section 2A of that Act, to be construed as if it formed part of this Act.

38. The 1998 Act was amended in 2001 by the Workers Compensation Legislation Further Amendment Act 2001 (NSW) (the 2001 Amending Act) to institute a new system for the recovery of work injury damages which had an impact on the 1926 Act, the 1987 Act and the 1988 Act.

39. The new system came into effect on 1 January 2002. It treated injuries received after 30 June 1987 differently from injuries received before that date.

40. The new system for injuries which were received after 30 June 1987 limited damages to past and future economic losses, including superannuation and interest. Damages under the new system for injuries received after 30 June 1987 cannot be recovered unless the injury the subject of the claim has resulted in a degree of permanent impairment of at least 15% in accordance with an assessment made under Part 7 of Chapter 7 of the 1998 Act (see s 151 H of the 1987 Act).

41. The new system for injuries which were received before 30 June 1987 does not reduce the heads of damages which may be the subject of a claim. It does, however, introduce a series of procedural steps which must be performed in order for a common law claim to be made.

42. On the basis of the material before me, I find that Mr D’Agostino’s claim is a claim for injuries received before 30 June 1987.

43. Mr D’Agostino notified FRNSW on 28 November 2022 of his intention to make a common law claim. FRNSW argued that this means that Mr D’Agostino’s claim is a “new claim” as defined by the new system (because it was made after 1 January 2002).

44. The 1998 Act provides, in s 260:

260 How a claim is made

(1) A claim must be made in accordance with the applicable requirements of the Workers Compensation Guidelines.

(2) The Workers Compensation Guidelines may make provision for or with respect to the following matters in connection with the making of a claim—

(a) the form in which a claim is to be made,

(b) the manner in which a claim is to be made,

(c) the means by which a claim may be made,

(d) the information that a claim is to contain,

(e) requiring specified documents and other material to accompany or form part of a claim,

(f) such other matters as may be prescribed by the regulations.

(3) Without limiting this section, the Workers Compensation Guidelines can require that a claim be accompanied by a form of authority signed by the claimant and authorising a provider of medical or related treatment, hospital treatment or workplace rehabilitation services to the claimant in connection with the injury to which the claim relates to give the insurer concerned information regarding the treatment or service provided or the worker’s medical condition or treatment relevant to the claim.

(4) The Workers Compensation Guidelines can also provide for any of the following matters in connection with the making of a claim—

(a) waiving the requirement for the making of a claim in specified cases (such as cases in which notice of injury has been given or provisional weekly payments of compensation have commenced),

(b) providing for the time at which a claim is taken to have been made in any case in which the requirement for the making of a claim has been waived,

(c) providing for the time when a claim is taken to have been made in a case in which requirements of the Guidelines with respect to the making of the claim have been complied with at different times.

(5) The failure to make a claim as required by this section is not a bar to the recovery of compensation or work injury damages if it is found that the failure was occasioned by ignorance, mistake or other reasonable cause or because of a minor defect in form or style.

(6) Except to the extent that the Workers Compensation Guidelines otherwise provide, an insurer can waive a requirement of those Guidelines with respect to the making of a claim on the insurer.

(7) The Workers Compensation Guidelines can require an insurer to notify a worker of any failure by the worker to comply with a requirement of those Guidelines with respect to the making of a claim, and can provide for the waiver of any such failure by the worker if the insurer fails to give the required notification.

45. The applicable Workers Compensation Guidelines are those which came into effect on 1 March 2021 (“the 2021 Guidelines”). The 2021 Guidelines provide:

8.1 Relevant particulars about a claim

Section 282(1) of the 1998 Act states that ‘the relevant particulars about a claim’ are full details that enable the insurer (as far as practicable) to make a proper assessment of the claimant’s entitlement. Section 282(1)(g) allows these Guidelines to specify any further relevant particulars about a claim.

8.1.1 For injuries received on or after 1 January 2002

A claim for lump sum compensation must be accompanied by a report from a permanent impairment assessor listed on the SIRA website, for the body system(s) being assessed. The assessor’s report must include:

• a statement about whether the condition has reached maximum medical improvement

• an assessment of the part or system of the body being assessed including the percentage of permanent impairment in line with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (version current at the time of the assessment)

• where the claim relates to hearing loss, a copy of the audiogram used for the medical report.

8.1.2 For injuries received before 1 January 2002

A claim for lump sum compensation must include:

• the percentage of loss or impairment of an injury described in the Table of disabilities

• a medical report from a medical practitioner supporting the amount of loss or impairment claimed

• if the claim relates to hearing loss, a copy of the audiogram used for the medical report.

46. The 1998 Act provides, in s 262:

262 Time within which claim for work injury damages must be made

Court proceedings for the recovery of work injury damages cannot be commenced until a claim for the damages has been made.

47. The 2001 Amending Act introduced the clauses 8 and 9 into Part 18C of Schedule 6 of the 1987 Act:

8 New procedures for making a claim

(1) Division 2 of Part 2 (sections 259–264) and Divisions 2–5 of Part 3 (sections 274–286), except section 284, of Chapter 7 of the 1998 Act extend (subject to any modifications prescribed by the regulations for the purposes of this clause) to the making of a claim after the commencement of those sections even if the claim is an existing claim.

(2) This clause has effect despite section 251 of the 1998 Act.

9 Amendments relating to common law damages

(1) An amendment made by Schedule 1 to the Workers Compensation Legislation Further Amendment Act 2001 applies in respect of the recovery of damages after the commencement of the amendment (and so applies even if the injury concerned was received before the commencement of the amendment) but does not apply in respect of the recovery of damages if proceedings for their recovery were commenced in a court before the commencement of the amendment.

…

48. The Court of Appeal considered the effect of Schedule 6, Part 18C, clause 8 of the 1987 Act as amended by the 2001 Amending Act in Attileh v State Rail Authority (2005) 62 NSWLR 439; [2005] NSWCA 64 (‘Attileh’). Mason P, with whom Santow JA and Tobias JA agreed, determined that a claim for damages at common law was a claim for “work injury damages” pursuant to s 250 of the 1998 Act (see [20]). It was determined that a claim must be made in accordance with the applicable requirements of the WorkCover Guidelines (see [25]). Mason P said, at [27] and [29]:

27 It is s 262 that is fatal to the instant proceedings if applicable to them. It states that:

Court proceedings for the recovery of work injury damages cannot be commenced until a claim for the damages has been made.

…

29 It is common ground that compliance with s262 is mandatory, with the consequence that proceedings commenced in breach thereof are of no legal effect and must be dismissed (cf Baker v Rothmans of Pall Mall (Australia) Ltd [1999] NSWCA 245, 18 NSWCCR 374, Emad Trolley Pty Ltd v Shigar (2003) 57 NSWLR 636). The defendant may waive the right to invoke s262 (see generally Gordon v Berowra Holdings Pty Ltd [2005] NSWCA 27), but there is no suggestion that this has occurred in the present case.

49. At [57], Mason P said:

57 But Part 18C addressed other matters as well, including the topic of cl 8. The language of that clause is intractably emphatic and it reinforces the generality of s 259 of the WIM Act. It means that the new procedures found in Chapter 7, Part 2, Division 2 apply to the making of any type of claim after 1 January 2002.

50. Mr Attileh had commenced proceedings in April 2002 seeking common law damages with respect to allegations that he had sustained hearing loss at work, prior to 30 June 1987, on account of the negligence of his employer, the defendant in that matter. Like the present applicant, Mr Attileh had not complied with the procedural requirements of Chapter 7 Part 2 Division 2 of the 1998 Act. The Court of Appeal decision was a decision with respect to an application for summary dismissal on the grounds of Mr Attileh’s failure to comply with those procedural requirements. The outcome was that the proceedings were of no legal effect and had correctly been summarily dismissed, and Mr Attileh’s appeal was dismissed. An application for special leave to appeal to the High Court was refused on 2 September 2005 by Kirby J and Heydon J, who said:

We are not convinced that the Court of Appeal of New South Wales erred in the interpretation of the Act that it preferred. We are not persuaded that there was a relevant inconsistency in the reasoning of the Court of Appeal, as submitted by the applicant. Any appeal would not enjoy reasonable prospects of success. Accordingly, special leave must be refused.

51. It is common ground between the parties that Mr D’Agostino has not complied with the requirement to provide, in accordance with clause 8.1.2 of the 2021 Guidelines:

• the percentage of loss or impairment of an injury described in the Table of disabilities

• a medical report from a medical practitioner supporting the amount of loss or impairment claimed

52. That information has never been provided to FRNSW. No such medical report exists, to date.

53. In Wilson v State Rail Authority of NSW & Anor [2009] NSWSC 537 (‘Wilson’), Hidden J considered a claim for damages with respect to injuries incurred before 30 June 1987. Mr Wilson claimed damages for sexual assault allegedly committed against him by a fellow employee of the defendant in the action between August 1981 and January 1983. A claim for workers compensation was made in February 2006 and proceedings for common law damages were commenced in December 2007. Mr Wilson did not comply with the notice requirements of the 1998 Act and nor had he obtained an assessment of whole person impairment of a minimum of 15% prior to commencing proceedings. Hidden J, following Attileh, determined that s 259(1) of the 1998 Act applied to Mr Wilson’s claim.

54. It was argued, in Wilson, that the effect of Schedule 6, Part 18C, Clause 9 was to apply the requirement that the employer be provided with evidence of a whole person impairment of at least 15% in accordance with an assessment made under Part 7 of Chapter 7 of the 1998 Act (see s 151H of the 1987 Act). Hidden J accepted that argument, and said, at [35]:

35 The legislative scheme, including clause 8 of Part 18C of Schedule 6 to the WCA, evinces a parliamentary intention that claims for damages after 1 January 2002 are confined to the more serious class of case, delineated by the minimum 15 % WPI. That is so regardless of when the injury was sustained. By s 259(2), a claimant is relieved of that requirement only if proceedings were instituted before that date.

55. The FRNSW relied upon the decision of Hidden J in Wilson and submitted that Mr D’Agostino was required to have produced to the FRNSW an assessment of whole person impairment of a minimum of 15%. However, the decision of Hidden J in Wilson was overturned in Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 (‘ the Wilson appeal decision’) by the Court of Appeal. Allsop P, with whom Giles JA, Hodgson JA, Tobias JA and Macfarlan JA agreed said, at [162] – [165], [169] – [179] and [193] – [194]:

162 Mr Campbell approached the appeal initially on the basis of the acceptance of Attileh as correct. The appeal as originally framed and as argued orally was more narrowly advanced. I will deal with these more narrow arguments shortly. By reason of the course of debate on the appeal Mr Campbell sought leave, which was granted, to argue that Attileh was plainly wrong and should not be followed. Written submissions were filed by the parties in support of their respective positions.

163 Mr Campbell recognised that the ratio of Attileh was that claims for common law damages with respect to injuries suffered before 4 pm on 30 June 1987 were covered by Div 2 of Pt 2 of Ch 7 of the WIM Act because of cl 8 of Pt 18C of Sch 6 to the WC Act.

164 As I have already observed, Mr Campbell did not attack the reasoning process of the Court in Attileh, as far as it goes. The attack was directed to the assumption made in Attileh that does not appear to have been the subject of argument: that a claim for common law damages based on a cause of action in respect of the injury received before 4 pm on 30 June 1987 was a claim for “work injury damages” within the meaning of that phrase in s 250 of the WIM Act. That assumption (that was stated clearly by Mason P as a fact at [20] of Attileh) underpins the intractability of the conclusion about cl 8(1) concerning the making of a “claim” after the commencement of the sections in Ch 7 to which cl 8(1) was directed.

165 Mr Campbell’s argument was based on the text and structure of the 2001 amendments and the clear purpose, he submitted, of dealing only with the scheme created from 1989. Central to this submission was the place of s 151U of, and Pt 14 of Sch 6 to, the WC Act that remained untouched by any of the 2001 amendments. The terms of parts of Ch 7 of the WIM Act such as ss 313, 314, 319, 322(4) and 323 assumed a degree of permanent impairment which could not be so unless Pt 5 of the WC Act was amended to apply to pre-1987 injuries, which it was not.

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169 In my view, the position contended for by Mr Campbell is correct. I come to this conclusion having regard to: (a) the clarity of the pre-enactment and contextual material that the mischief to which the 2001 amendments were directed was the cost of common law claims under the “current scheme” and made under the WC Act and the WIM Act and that the purpose of the 2001 amendments was to reduce the burden of verdicts and costs thereof; (b) the text and structure of the legislation; and (c) the application of relevant canons of statutory interpretation.

170 I need say no more about mischief and purpose taken from the enactment history and contextual materials.

171 It is to be appreciated at the outset that the phrase in question “work injury damages” is a definition, not a substantive provision. It is an aid to the construction of the statute: Gibb v Federal Commissioner of Taxation [1966] HCA 74; 118 CLR 628 at 635. Thus, its meaning is to be gleaned, not in isolation within s 250, but in the context of how it is deployed in the substantive provisions of the statute.

172 The destruction of, or imposition of a substantive restriction or limitation on, common law rights of suit for personal injury requires “very clear legislative intent”: Berowra Holdings at 373 [23]. There has been some doubt thrown on this canon of construction in its application to common law rights of suit in “reforming” Acts whose purpose was to change the law: see Harrison v Melham at 382-384 [2]-[11] (Spigelman CJ), 403 [191] (Beazley JA) and 406-409 [209]-[221] (Basten JA). Nevertheless, the clear expression of view by the plurality in Berowra Holdings at 373 [23] on this very statute makes adherence to the principle mandatory. This is especially so when the Parliament has made a policy choice pellucid in its expression (in s 151U and Pt 14 of Sch 6) in 1987 and 1989 that the worker’s common law right to damages was not to be affected by the changes to the regime for compensation (using the term in its general sense) for injuries suffered at work. The position is even further reinforced by the terms of s 151 of the WC Act that that Act does not affect any liability in respect of an injury existing independently of the Act except to the extent that the WC Act otherwise expressly provides.

173 It is necessary to construe the legislation (the WC Act and the WIM Act) as a whole in the way described in Project Blue Sky at 381-382 [69]-[71]. In that context, s 2A of the WC Act must be given effect. Section 2A(2) requires the two Acts to be construed as if one Act. The primacy of the provisions of the WIM Act (s 2A(3)) does not mean, however, that appropriate meaning or limitation by reference to object and purpose is not to be given to a provision in the WIM Act or that the literal words of a provision in the WIM Act gain a broader content than they would receive looking at the legislation as a whole and applying relevant canons of statutory construction, including having regard to context, purpose and mischief.

174 Turning to the legislation, the first critical factor is that s 151U and Pt 14 of Sch 6 were not expressly amended by the Parliament to have Pt 5 of the WC Act apply to causes of action in respect of injuries received before 4 pm on 30 June 1987 if proceedings had not been commenced before 27 November 2001. In the considerable body of amendments that were made by the Second 2001 Amending Act, such an amendment would have been both easy to draft and of sufficient clarity to evince a Parliamentary intention to destroy or significantly modify common law rights. No such step was undertaken.

175 The Parliament not only made no amendment to the WC Act to reveal an intent to affect rights concerning injuries received before 4 pm on 30 June 1987, but also it did not do so in its changes to the WIM Act. Reliance was placed in particular on s 260 (and any promulgated Guidelines) and Pt 6 of Ch 7 of the WIM Act especially ss 313, 314, 322 and 323 as effectively repealing s 151U of, and Pt 14 of Sch 6 to, the WC Act. None of these provisions goes any further than assuming that a degree of permanent impairment is required in any claim for work injury damages. They lack any textual clarity to require (as opposed to assume) such degree of permanent impairment sufficient to permit the conclusion that common law rights were intended to be affected. More importantly, however, only assuming as they do that a degree of permanent impairment is required for work injury damages, they point to the conclusion that work injury damages are confined to those that have already been affected by the express changes to Pt 5 of the WC Act. This is reinforced textually by the terms of s 322(1) that expressly contemplate that the assessment of permanent impairment is for the purposes of the Workers Compensation Acts.

176 Read in this context, the definition of work injury damages can be seen implicitly to be referable only to injuries to which Pt 5 of the WC Act speaks, namely, those received at or after 4 pm on 30 June 1987.

177 If the WIM Act changes were to bring about substantive changes to the common law rights protected by s 151U and Pt 14 of Sch 6, this would be contrary to the comment of the Minister in the Second Reading Speech for the Bill that became the First 2001 Amending Act that the changes were not retrospective as to benefit levels.

178 Reading the two Acts together, there is no express provision, let alone one which speaks with any clarity, that the new regime introduced in 2001 was intended to affect common law rights with respect to pre-30 June 1987 injuries. Given that the mischief to which the First and Second 2001 Amending Acts were directed was the cost and procedure of common law claims under the WC Act and the WIM Act, under the current scheme, Ch 7 can be seen to be directed thereto. The only way to read the definitional phrase “work injury damages” in the critical parts of Ch 7 of the WIM Act (ss 260, 313 and 314) is that it applies only to those injuries to which the clear legislative changes have been made in Pt 5 of the WC Act. That permits the tolerably clear conclusion that the whole of the 2001 changes, including ss 259, 260, 313, 314, Div 2 of Pt 2, Divs 2-5 of Pt 3 and cll 8 and 9 of Pt 18C of Sch 6 to the WC Act, apply to injuries received at or after 4 pm on 30 June 1987.

179 Clause 9(1) does not depend for its operation on the phrase “work injury damages”. Nevertheless, it can clearly be understood as referable only to injuries affected by Pt 5, that is, at or after 4 pm on 30 June 1987 in respect of which proceedings had not been commenced.

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193 In my view, the case should be decided on the basis of the argument as ultimately presented. Mr Campbell submitted that no part of the First or Second 2001 Amending Act was sufficiently clear to amend Pt 5 of the WC Act or to otherwise impose upon a claim for damages for an injury received before 4 pm on 30 June 1987 a requirement found in Pt 5 for a 15 per cent permanent impairment as a pre-condition for the recovery of any damages. Mr Watson argued to the contrary and recognised that unless the First and Second 2001 Amending Acts can be seen effectively to repeal s 151U and Pt 14 of Sch 6 (except only to the extent that proceedings to vindicate pre-1987 injuries had been commenced prior to 27 November 2001 or 1 January 2002) the SRA must lose.

194 This is how the case should be decided. For the reasons that I have given, in my view, Mr Campbell’s argument is correct. The form that the argument ultimately took, in my view, requires the questions to be slightly reformulated. I would reformulate the questions and I would answer them in terms set out in [4] above.

At [4], Allsop P said:

4 For the reasons that follow, in my view, the appeal should be allowed, the orders of the primary judge set aside and the questions reformulated and answered as follows:

(a) Do the provisions of Part 5 of the WC Act (including ss 151G and 151H) apply to the plaintiff’s claim for damages?: No.

(b) Do the provisions of Chapter 7 of the WIM Act require the plaintiff to demonstrate that he has suffered a 15 per cent permanent impairment before he is entitled to commence proceedings for damages?: No.

(c) Are the plaintiff’s proceedings maintainable?: Yes.

56. In the Wilson appeal decision, Hodgson JA agreed with Allsop P, adopted his reasons and added, at [198] – [201]:

198 In my opinion, the conclusion that the definition of “work injury damages” in s 250 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act) is referable to injuries to which Part 5 of the Workers Compensation Act 1987 (NSW) (WC Act) applies, that is, only those received at or after 4 pm on 30 June 1987, is reinforced by the following considerations:

(1) that definition states that “work injury damages” means “damages” of a specified kind;

(2) s 250 includes a definition of “damages” as having the same meaning as in Part 5 of the WC Act;

(3) the definition of “damages” in Part 5 of the WC Act is a definition in s 149 of that Act that applies only “In this Part”;

(4) by s 151U of the WC Act, Part 5 of that Act applies only to causes of action in respect of injuries received at or after 4 pm on 30 June 1987;

(5) therefore, the definition of “damages” in Part 5 of the WC Act is one applying only in respect of such causes of action;

(6) therefore, plausibly, the definition of “work injury damages”, being a sub-class within this definition of “damages”, was intended to have the same limitation.

199 I do not suggest that this is a conclusive argument, but rather that it gives some persuasive textual support to the conclusion, reached by Allsop P for other reasons, that the definition of “work injury damages” in s 250 of the WIM Act is referrable to injuries to which Part 5 of the WC Act applies.

200 If that is correct:

(1) a claim for damages in respect of an injury received before 4 pm on 30 June 1987 is not a “claim” as defined in s 4 of the WIM Act (noting that in s 4, “work injury damages” is given the same meaning as in s 250 of the WIM Act);

(2) such a claim is therefore neither a “new claim” nor an “existing claim” in the definition of those expressions in s 250 of the WIM Act.

201 I believe it follows that there is no inconsistency between the WIM Act and s 151U of the WC Act that could possibly have the effect of repealing the latter provision.

57. Mr D’Agostino is not required to comply with the procedural requirements provided for in Chapter 7 of the 1998 Act. Applying the Wilson appeal decision, the 2001 Amending Act did not impose those procedural requirements upon claims in relation to injuries sustained prior to 1987.

58. The argument on behalf of FRNSW to the effect that the plaintiff’s claim cannot succeed because of his failure to comply with the procedural requirements of the Workers Compensation Act 1987 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW), and should therefore either not be granted leave under the Felons (Civil Proceedings) Act 1981 (NSW) or should be struck out on that basis, cannot succeed given the decision of the Court of Appeal in the Wilson appeal decision.

59. However, the Limitation Act 1969 (NSW) applies to Mr D’Agostino’s claim, as I have said at [14] – [29] above, and the claim is not maintainable under s 14(1)(b) of that Act.

60. I note that the Limitation Act 1969 (NSW) provides, in s 51:

51 Ultimate bar

(1) Notwithstanding the provisions of this Part, an action on a cause of action for which a limitation period is fixed by or under Part 2 is not maintainable if brought after the expiration of a limitation period of thirty years running from the date from which the limitation period for that cause of action fixed by or under Part 2 runs.

(2) This section does not apply to a cause of action in relation to which an order has been made under Subdivision 3 of Division 3 (Discretionary extension for latent injury etc).

Conclusion

61. There would be no utility in granting leave to Mr D’Agostino to institute proceedings in circumstances where he cannot maintain those proceedings because they are out of time under the Limitation Act 1969 (NSW). In that sense, there is no “prima facie ground for the proceedings” because they cannot be pursued.

62. It would also be an abuse of process to pursue proceedings which are out of time under the Limitation Act 1969 (NSW) and ineligible for any extension of time.

63. I therefore decline to grant leave to Mr D’Agostino under the Felons (Civil Proceedings) Act 1981 (NSW).

64. In its Notice of Motion, the defendant sought the dismissal of the plaintiff’s claim. That is not necessary, as the plaintiff’s claim has not been validly instituted, having been filed without the necessary leave. Although the defendant has succeeded on part of its argument, I will dismiss its Notice of Motion as the relief sought is not apposite.

65. The following orders will issue:

66. The application for leave to institute proceedings under the Felons (Civil Procedure) Act 1981 (NSW) is refused and the plaintiff’s Notice of Motion dated 21 March 2025 is dismissed.

67. The defendant’s Amended Notice of Motion dated 18 February 2025 is dismissed.

68. I will hear the parties as to costs.

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