Malone v New South Wales National Parks and Wildlife Service

It is desirable for the exercise of discretion to be considered by this Court, and for it to be exercised in the appellant's favour. The appellant's failure to adequately explain the delay is relevant, but more important is that the respondent is not at risk of prejudice.

2. The orders of Delaney DCJ made on 17 November 1999 are set aside.

3. The appellant's application for an extension of time pursuant to s 151D(2) of the Workers Compensation Act 1987 is granted.

The respondent is to pay the appellant's costs of the appeal.

The costs of the application before Delaney DCJ are to be the appellant's costs in the District Court proceedings.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40960/99 DC 156/99 MASON P HEYDON JA YOUNG CJ in Eq

Friday, 28 September 2001 MALONE v NEW SOUTH WALES NATIONAL PARKS AND WILDLIFE SERVICE

1 MASON P: I agree with Heydon JA. 2 HEYDON JA: Background This is an appeal by leave against orders of Delaney DCJ made on 17 November 1999 dismissing with costs an application to extend time under s 151C of the Workers Compensation Act 1987 (NSW). Section 151D(2) provides: "A person to whom compensation is payable under this Act is not entitled to commence Court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than three years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken." The relevant injury allegedly occurred on 29 April 1994, when the appellant claimed to have injured his back while lifting hay bales. The application to extend time was filed on 1 July 1999. Primary judge's approach 3 One basic reason why the primary judge rejected the application was that the appellant had experienced numerous incidents before and after 1994 causing back pain. The primary judge said: "If the respondent had been in a position to deal with the matters referred to on 5 May 1994, within time, I am satisfied that it would have been possible to have appropriate examinations taken place at an earlier date which would have enabled the respondent to be able to separate the various incidents one from the other, to enable a proper and fair trial to be held on the question of whether or not, as was alleged in the draft statement of claim, the applicant had in fact suffered these injuries as a result of the actions of the respondent. … In my view, the failure to take the necessary action within what I find was the limitation period of April 1997 has placed the respondent in a position where a fair trial of these proceedings could not be had on medical grounds." Further evidence 4 The appellant made an application to tender further evidence to this Court. The evidence consisted of reports by Dr Searle and by Dr Bleasel. The point which the reports were seeking to make is put clearly by Dr Bleasel's report of 24 October 2000: "It is my opinion that any qualified practitioner could come to the conclusion that the [appellant's] symptoms and disabilities are related to the various incidents described in my reports. The passage of time between the injury and my history taken on 14 September, 1999, does not prevent any qualified specialist coming to the opinion that I expressed, namely that the present disabilities are the result of the incidents described in my reports." Dr Searle in his report of 22 October 2000 said: "I refer to your inquiry about the possibility of specialists expressing an opinion as to the relationship between [the appellant's] injuries and disabilities and the various incidents in his history including the incident on 29/4/94 … . There is a large number of specialists in the state, mostly orthopaedic surgeons, who are extremely experienced in dealing with such problems. It is accepted by these well qualified gentlemen that one of their main functions in dealing with a medico-legal referral is to assess the causality of the patient's disability and the relationship to the claimed injuries. It is not even necessary for [the appellant] to come to a capital city for such medico-legal assessments as there are many orthopaedic surgeons in rural areas who have been doing this sort of work for many years." 5 The tender of the reports was supported by two affidavits of the plaintiff's instructing solicitor. The first of these affidavits said that prior to the hearing before the primary judge: "the Defendant had not tendered any medical evidence which suggested that the relationship between the Plaintiff's current medical condition and the various incidents including the accident of 29 April 1994 could not, on the balance of probabilities, be determined. Accordingly, I did not appreciate that that was to be an issue and I did not seek medical opinion in relation to that issue. In that respect when preparing the Plaintiff's case for hearing the only medical evidence which was going to be before the Court was the medical evidence which was going to be tendered by the Plaintiff and that included contemporaneous investigations in the nature of x-rays and a CT and MRI scan." 6 It was common ground that there was no cross-examination directed to the issue of whether the history of accidents suffered by the appellant made it difficult or impossible for medical opinions to be pronounced on the relationship between the alleged tort and the appellant's present condition. It is to be inferred from both the affidavits sworn by the solicitor that the issue first arose in final address. In Nowlan v Marson Transport Pty Ltd, an appeal argued on the same day as the present appeal, the decision in which is handed down at the same time as this decision, the tests relevant to the reception of further evidence pursuant to s 75A(7)-(9) of the Supreme Court Act 1970 (NSW) were discussed. That discussion should be read as if incorporated into these reasons. The conclusion of that discussion was that where an applicant has no notice that a point of the type taken by the respondent before, and accepted by the primary judge, was to be taken, it is open to the court to exercise its discretion in favour of reception of the further evidence. In that case the further evidence was received. It ought to be received also in this case. The general discussion in that case of the approach of potential defendants in resisting applications of the present kind should also be read as incorporated into these reasons. Effect of reception of further evidence 7 The respondent did not seek to challenge in any way the further evidence. With the advantage of that further evidence (an advantage which the conduct of the parties before the primary judge denied to him), it can be seen that the primary judge erred in his conclusion about prejudice. Re-exercise of discretion? 8 The question then arises, in the light of that factual error, whether the matter should be remitted to the District Court for a second application to be considered, or whether this Court should exercise for itself the discretion which the further evidence now reveals to have been exercised on the basis of that factual error. The respondent favoured the former course and the appellant the latter. The primary judge was critical of the appellant for his delays in instituting proceedings. He appeared not to accept parts of the appellant's evidence. He said: "I observed him give his evidence, and in response to answers. I formed the distinct impression that he had in fact, to a degree, reconstructed his recollection about the position as far as his knowledge was concerned before the limitation period had expired, to suit the application that was being made in this case. I find that it was only after he failed to gain the position of a permanent field supervisor that he finally decided to do something, and it was at that stage, not because of his low back injury per se, but because of other industrial matters, that he was led into the situation where he made this application." At the end of his reasons for judgment the primary judge said: "In all the circumstances, I do not accept the evidence of the applicant that he had no relevant knowledge of his right and entitlement to make a claim for damages, until he first saw Mr Smith as deposed to. I'm satisfied that he has reconstructed and recrafted the evidence in this case to suit his application of the application and in the justice of the case, the application should be refused." However, after the first of the passages just quoted, the primary judge turned to the issue of whether a fair trial could be had in a passage commencing with the words "Notwithstanding those findings" and stating that the question to be decided was whether the delay had made the chances of a fair trial unlikely. That indicates that the primary judge did not regard as decisive either the appellant's delays or any perceived deficiencies in the evidence which he gave about them. Indeed, the reconstruction of evidence in itself would not usually appear to be a material factor, though it might have an impact on the existence of some factor which was material. If this Court operates on the assumption that the appellant did not satisfactorily explain his delays in starting proceedings and seeking leave, it seems more just and more expeditious in the interests of both parties that the discretion be exercised here and now. The respondent has not had the opportunity of testing the further evidence, but that is the consequence of its own tactical decisions before the primary judge and in this Court. 9 Though delay was not explained, the primary judge rightly, at least at one stage of his reasons, did not see that as decisive. Nor should this Court. What the primary judge saw as decisive was the supposed inability of medical experts to separate from one another the consequences of the various accidents. The evidence before this Court is all one way, and it is against the proposition put to and accepted by the primary judge. No additional area of prejudice was pointed to. The appellant's application under s 151D(2) should be granted. Orders 10 In view of the fact that this appeal has been occasioned by the respondent's conduct of proceedings before the District Court, the respondent should pay the appellant's costs of the appeal, and should not receive a certificate under the Suitors Fund Act. Since the respondent's opposition to the application before the primary judge rested on one primary point on which it has failed, the costs of the hearing before the primary judge should be the appellant's costs in the proceedings. That is, if the appellant wins the trial, he will have his costs of the s 151D(2) application; if not, there will be no order as to costs. It may be that that type of order is not typical of those made in relation to s 151D(2) applications which succeed. In argument before this Court expressions were used to the effect that the appellant had been seeking an "indulgence". In a limited sense that is true. There are some types of opposition which ought not to result in adverse costs orders even if the opposition fails. In other cases it can be seen, if opposition fails, that there ought not to have been opposition, and different types of costs orders may be appropriate. The failure of the respondent here is in the latter category. 11 The following orders are proposed:

1. The appeal is allowed.
2. The orders of Delaney DCJ made on 17 November 1999 are set aside.
3. The appellant's application for an extension of time pursuant to s 151D(2) of the Workers Compensation Act 1987 is granted.
4. The respondent is to pay the appellant's costs of the appeal.
5. The costs of the application before Delaney DCJ are to be the appellant's costs in the District Court proceedings. 12 YOUNG CJ in Eq: I agree with Heydon JA. **********

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