Naumovski v Z Services Australia Pty Ltd

Before: Elkaim AJ

Decision: 1. The plaintiff has leave pursuant to s 151D of the Workers Compensation Act 1987 (NSW) to commence and maintain proceedings against the first defendant for work injury damages in respect of injuries sustained on 18 May 2016.
2. The costs of the plaintiff’s motion filed on 4 October 2024 are to be costs in the cause.

Catchwords: WORKERS COMPENSATION — limitation period — s 151D Workers Compensation Act 1987 (NSW) — application for leave to commence proceedings more than three years after injury — prejudice to defendant — different versions of accident — absence of witnesses — extension of time granted

Legislation Cited: Corporations Act 2001 (Cth), s 471D
Workers Compensation Act 1987 (NSW), ss 151D, 151DA(1)(b), 151H

Cases Cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25

Category: Procedural rulings

Parties: Dobri Naumovski (Plaintiff)
Z Services Australia Pty Ltd (First Defendant)
Betaform Group (Australia) Pty Ltd (Second Defendant)

Representation: Counsel:
G Young (Plaintiff)
W S Reynolds (First Defendant)
Solicitors:
Martin Bell & Co Solicitors (Plaintiff)
Gair Legal (First Defendant)
Meridian Lawyers (Second Defendant)

File Number(s): 2024/327656

Publication restriction: No

JUDGMENT

1. On 18 May 2016, the plaintiff was injured while working at a building site in Riverwood in New South Wales. The plaintiff alleges he was employed by the first defendant as a formworker but was placed at the construction site to work under the second defendant (a labour hire arrangement).

2. The first defendant was placed under administration in August 2016. On 3 March 2025, the plaintiff obtained leave under s 471D of the Corporations Act 2001 (Cth) to bring proceedings against the first defendant.

3. By a notice of motion filed on 4 October 2024 the plaintiff seeks leave pursuant to s 151D of the Workers Compensation Act 1987 (NSW) (the WCA) to commence and maintain proceedings against the first defendant. The purpose of the proceedings is to recover work injury damages arising from the plaintiff’s injuries.

4. The reason the plaintiff needs leave is because s 151D of the WCA imposes a three-year limitation period on the commencement of such proceedings. The section does however allow for the extension of the period with the leave of the court in which the proceedings are to be brought.

5. The first defendant opposed the granting of leave. The second defendant is not concerned with the notice of motion.

6. The plaintiff relied on the following affidavits:

7. Mr Martin Bell dated 12 November 2024 and 23 May 2025.

8. Mr Louis White dated 19 March 2025.

9. The plaintiff dated 23 May 2025.

10. Mr Bell is the plaintiff’s solicitor. Mr White is a clerk in Mr Bell’s office. Mr White’s affidavit refers to the granting of leave, as described above, under the Corporations Act.

11. The first defendant relied on the affidavits of its solicitor, Mr Dennis Kim, dated 28 March 2024, 5 June 2025 and 6 June 2025 respectively. Mr Kim’s client is the workers compensation insurance scheme agent for the first defendant, GIO Insurance.

12. In their respective written submissions, counsel for the opposing parties stated their summary of the necessary conditions for the granting of leave. Although expressed in different words the test outlined was the same. The plaintiff said that the essential elements to be considered were:

“1. An explanation for the delay.

2. The degree of any forensic prejudice to the defendant such that a fair trial (as distinct from a perfect trial) can occur.

3. There is an arguable or prime facie case; leave would not be given for a case without prospects.”

10. The first defendant’s summary was:

“1. There is a sufficient and acceptable explanation for each period of delay,

2. The plaintiff has a reasonable arguable claim of negligence against the defendant, and

3. The defendant would not suffer such prejudice as to render the trial unfair.”

11. The first defendant, without any formal concession, did not wish to be heard on delay or ‘arguable case’.

Explanation for the delay

12. The statement of claim was filed on 4 September 2024. It should have been filed by 18 May 2019. The filing of the statement of claim is ostensibly over five years ‘late’. However, pursuant to s 151DA(1)(b) of the WCA, time stopped running with the lodging of a pre-filing statement on 29 May 2024.

13. A person cannot claim work injury damages unless he or she has a whole person impairment (WPI) of 15% or more (s 151H of the WCA). Following the accident the plaintiff was admitted to St George Hospital where he remained for about nine days. His injuries seem to have been to his shoulder, neck and head, and there is also a psychiatric component.

14. The plaintiff claimed and has received workers compensation payments for both weekly payments and permanent impairment.

15. On 21 February 2023, the Personal Injury Commission determined the plaintiff’s psychological injury WPI to be 15% and his personal injury WPI to be 14%.

16. On 31 August 2023, Mr Bell commenced acting for the plaintiff. In his affidavit of 12 November 2024, Mr Bell describes a series of errors made by the plaintiff’s former solicitors. For example, they described the first defendant as Zed Group Australia Pty Ltd. This is a different entity to Z Services Australia Pty Ltd. There was confusion and “missteps” were taken. Delay naturally ensued.

17. Since taking over the file, Mr Bell has worked diligently to put the case in order. He has found the correct first defendant, arranged medical examinations, made liability enquiries, and obtained a report from SafeWork NSW about the injury. He also had to deal with the first defendant being under administration.

18. On 16 May 2025, the first defendant’s solicitor conceded that “the plaintiff’s degree of permanent impairment meets the threshold for a worker with the highest needs”. This implies a WPI of at least 31%. The plaintiff is clearly a person carrying significant disability from the accident.

19. I am satisfied there has been an adequate explanation of the delay.

Arguable case

20. Remembering that the first defendant also did not challenge this requirement, I think I can be brief. To some degree this requirement overlaps with prejudice in that if the facts of the accident are difficult to ascertain then establishing an arguable case should logically also be difficult.

21. Nevertheless, the overall allegation is of an accident at work in circumstances where an employer has a high duty of care. There are records of the incident and at least one statement (Mr Lezaja) which suggests that a beam fell onto the plaintiff in the course of his working as a formworker. Without more, a heavy beam falling onto a worker would suggest something going wrong in the system of work and in turn an arguable case on liability.

22. Accordingly, I am satisfied that there is an arguable case.

Prejudice and fair trial

23. There were two inter-related elements to the first defendant’s submissions:

24. there were at least three unverifiable versions of how the plaintiff came to be injured; and

25. all attempts to speak to, or identify, witnesses had failed.

26. The differing versions of the accident can be seen from:

27. In para 6 of the statement of claim the following is alleged:

“On or about 18.05.16 whilst stripping formwork in a team of approximately 6 a steel beam was lowered from the floor above which slipped from the worker's grip, striking the plaintiff on the left side of the helmet on top of the head then falling onto the left shoulder causing severe injury to the head, vestibular system with dizziness with loss of hearing particularly on the left, neck and cervical spine, left shoulder and left upper extremity, lower back and lumbar spine, primary psychiatric injury, post-traumatic stress disorder, anxiety, depression, insomnia, panic attacks, shock and trauma with consequential severe deconditioning and development of hypertension and high blood pressure and development of severe sleep disorder and sleep apnoea., (‘the injury’).”

2. The WorkSafe description of the incident states:

“IW was working with two other workers taking down scaffolding, IW was holding a crossbeam when the pins were knocked out and he lost control and the beam hit him on the side of head causing a brain bleed C2 fractured. Worker was on ground level.”

3. The WorkSafe report lists two witnesses; Mr Daniel Lasu and Mr Peter Lezaja. I note the report only became available to the first defendant, in unredacted form, on 24 March 2025.
4. The contract administrator, Mr Robert Chociej, gave this description in an Incident and Injury Report on the day following the accident:

“On 18 of May Dobri Naumovski was working on the site stripping formwork in the basement (carpark). During stripping a formwork boom unexpectedly fell of the supporting it prop and struck Dobri in the lefthand side of hardhead, back of the neck and the left shoulder. Dobri was knocked down for a while but quite quickly regaind [sic] consciousness; however it wasn’t fully responsive. He was unable to walk and was clearly in initial shock. After initial assesment of Dobri conditions I called “000” for an ambulance. The ambulance arrived shortly after and took Dobri to hospital for a treatment and further evaluation of his conditions.”

5. In the report completed by Mr Chociej he names two persons as witnesses, Mr Daniel Solomoocres and Mr Daniel Lafu.
6. Mr Chociej told an investigator in December 2024 that “the claimant was one of about 9 or 10 workers who were brought in by Betaform just to strip formwork”. Betaform is the second defendant. The suggestion arising from the information is that there were potentially 9 or 10 witnesses.
7. An expert report prepared for the plaintiff states at paras 35 and 41 - 42:

“35. The scaffold was positioned relative to the beam being removed. The props supporting the beam were loosened, but not removed before the formworker ascended the scaffold. There was either 1 or 2 workers assigned to the scaffold. One person was assigned to work at ground level to receive the beam.

…

41. Mr Naumovski was working with a formworker known as Marko, who was assigned to work on the scaffold. Mr Naumovski worked at ground level.

42. The work had been uneventful until approximately 10.45 hrs. Mr Naumovski was moving into position but not yet in position to receive the beam. Without warning the beam fell onto his helmet and left shoulder, knocking him to the ground.”

8. The expert states that the sources of her information were instructions from the plaintiff’s solicitors, a notification of injury form, and an employer’s injury claim form. She also refers to an interview with the plaintiff, but I was told that, consistently with there being no version in his affidavit, the plaintiff has no recollection of the accident.

9. The potential witnesses who emerge from the various documents are Mr Robert Chociej, Mr Daniel Lasu, Mr Daniel Lafu, Mr Daniel Solomoocres, Mr Marko Bukorovic and Mr Peter Lezaja. I assume Mr Lasu and Mr Lafu are the same person.

10. According to the various investigation reports prepared by Lee Kelly Investigations, Mr Chociej did not witness the accident, Mr Lafu has no recollection of the plaintiff or the accident, Mr Solomoocres cannot be located, and Mr Lezaja, on 14 February 2024, “refused to assist” with the investigator’s enquiries.

11. The Mr Marko Bukorovic who was identified by the investigator, told the investigator:

“that he was never employed by Betaform Group, does not recognise the claimant’s name, has never worked in xxxxx Avenue, Riverwood, and has no recollection of any accident in which a beam fell and struck a worker or similar.”

28. In addition, enquiries of persons associated with the first defendant, including its directors (Mr Letteri and Ms Munoz), were not productive. Ms Munoz said:

“she has no recollection of the claimant, the incident of injury, or the jobsite in xxxxx Avenue, Riverwood.”

29. A Ms Ingersoll, who was stated on the claim form to be the first defendant’s human resources manager, could not assist. The investigator’s report says:

“She stated that she has no knowledge of the accident other than the vaguest recollection that it happened.

Ms Ingersoll states that she has since asked around to try to get details of any other relevant personnel from the insured whom we may be able to contact. She advised that she was unable to obtain any other names or details.”

30. Similarly, the investigators were not able to gain any useful information when they made enquiries of the second defendant. The head contractor of the construction where the accident occurred was Lu Projects Pty Ltd. The investigator tried to correspond with this company but has never received a response.

31. This state of affairs concerning witnesses was at the core of the first defendant’s submissions on being able to have a fair trial. If the circumstances of the accident were uncertain and no witnesses could assist, then a fair trial was not possible.

32. The first defendant submitted:

“Despite all reasonable efforts by the first defendant, it has not been able to locate any relevant witness who can assist the first defendant defend the plaintiff’s claim. The first defendant cannot properly identify and locate any of the persons present with the plaintiff at the time of his accident which persons may have witnessed the plaintiff’s accident. Relevant persons would include the persons engaged in lowering the steel beam at the time it fell and struck the plaintiff, other workmen who may have been present but not actually engaged in lowering the beam but who witnessed the accident and persons who were supervising the activity. These persons would not only be relevant to the first defendant’s defence of the plaintiff’s claim but also relevant to the question of apportionment of any liability between the first and second defendants.”

33. The submission just quoted is powerful and falls within the decision of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547; [1996] HCA 25, where his Honour stated:

“Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff's right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff's action. When 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. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff's lost right should not be revived than that the defendant should have a spent liability reimposed upon it. This is so irrespective of whether the limitation period extinguishes or merely bars the cause of action.”

34. On the basis of the first defendant’s reasonable, but unsuccessful, efforts to locate witnesses, combined with the uncertain and varied versions of the accident, the first defendant has established a strong case for the refusal of leave.

35. However, there is one more factor to be added in to the question of witnesses. As I have said above, a pre-filing statement was lodged on 29 May 2024 and, at the same time, served on the first defendant. Attached to the statement was a witness statement from Mr Peter Lezaja. The statement was obtained on behalf of the plaintiff and is dated 13 February 2024. Notably this is after the first defendant’s investigator was rebuffed by Mr Lezaja.

36. In paras 11-12 of his statement Mr Lezaja states:

“11. At the time of the accident, I was working on the same level as Dobri, stacking the stripped formwork. I was working approximately 10-15m away from Dobri at the time. He was to my left, slightly in front of me. As a consequence, I was able to see him and others working as I was working, through my peripheral vision. Two people were working on a portable scaffold doing stripping on the carpark level. Two men were passing down beams and Dobri was positioned to receive the beam from a co-worker on the portable scaffold. Without warning, the beam fell striking Dobri on the left side of the head and shoulder.

12. I remember Marco was present at the time. I cannot remember who was on the portable scaffold lowering the beam.”

37. Significantly, in my view, since the service of Mr Lezaja’s statement on the first defendant, the first defendant has not attempted to re-engage with Mr Lezaja. There is of course no property in a witness and Mr Lezaja is able to be subpoenaed.

38. It is also noteworthy that the version given by Mr Lezaja is consistent with the version alleged in the statement of claim.

39. I think the availability of Mr Lezaja as a witness significantly counters the strength of the first defendant’s objection to leave, as I have described above. To the extent that there remains a lacuna of witnesses, that is a circumstance which will impede the plaintiff’s proof of his claim as much as it hampers the first defendant’s resistance.

Summary

40. Taking into account the absence of any blameworthy delay on the part of the plaintiff, including the first defendant appropriately declining to take any point on delay or the existence of an arguable case, and the availability of at least one eyewitness to the accident, I think leave should be granted. I would also add into the equation, if necessary, the severity of the plaintiff’s injuries which is a factor in reaching a fair and just result.

41. The plaintiff’s motion seeks an order that “the costs of the motion be costs in the cause”. I think that is an appropriate order considering that the plaintiff has sought the court’s indulgence in obtaining leave to pursue his claim.

42. I make the following orders:

43. The plaintiff has leave pursuant to s 151D of the Workers Compensation Act 1987 (NSW) to commence and maintain proceedings against the first defendant for work injury damages in respect of injuries sustained on 18 May 2016.

44. The costs of the plaintiff’s motion filed on 4 October 2024 are to be costs in the cause.

**********