Neil Bissett v State of New South Wales

District Court of NSW|2017-02-03|Before: McHugh J

The plaintiff's application

The plaintiff applies by way of Notice of Motion filed on 7 November 2016 for the following orders: 1. "That this Honourable court grant leave, nunc pro tunc, pursuant to s 151D(2), Workers Compensation Act 1987, for the Plaintiff to commence thee Court proceedings on 14 July 2016 (or such other date as seems appropriate to the Court); 2. No order as to costs."
The plaintiff relied on the following affidavit evidence: Affidavit of Brooke Jane Schweers affirmed on 7 November 2016 Affidavit of Marcus Telemachos Frangos sworn on 18 November 2016 Affidavit of Marcus Telemachos Frangos sworn on 2 February 2017 Affidavit of Neil Bissett sworn 3 February 2017
Notwithstanding that the last two affidavits referred to were served late, the defendant took no objection to any of the affidavit material and did not require any of the deponents for cross-examination. Nor did the defendant rely on any affidavit evidence, rather, the defendant opposed the application on two bases; namely, first, there was presumptive prejudice because of the plaintiff's delay in bringing the proceedings for a period of two years and four months, warranting the court not to exercise its discretion under s 151D (relying on McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541); and secondly, on the basis that the evidence relied on by the plaintiff did not disclose an adequate explanation for the delay of two years and four months in bringing the plaintiff's claim.

Whether leave should be given to extend time for bringing proceedings

Section 151D provides relevantly as follows: "151D Time Limit for Commencement of Court Proceedings against Employer for Damages … (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 concerned against the employer liable to pay that compensation more than 3 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.
In Strasburger Enterprises Pty Limited trading as Quix Food Stores v Serna [2008] NSWCA 354 Basten JA (with whom Gyles AJA and Hoeben J agreed) said in relation to the section: "52. 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 The 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 …'"
In Itek Graphix Pty Limited v Elliott (2002) 54 NSWLR 207, Ipp AJA (with whom Spigelman CJ and Sheller JA agreed) said the proper approach in respect of an application for leave under s 151D, having reviewed the authorities, was as follows: "[87] In my opinion, in limitation legislation such as s 151D(2) of the Workers Compensation Act, where a broad discretion to grant leave to sue after expiry of the limitation period, the general question that has to be asked is what is fair and just (per Gleeson CJ in Salido). Or, what does the justice of the case require (per McHugh J in Brisbane South Regional Health Authority). In answering such a question the justice of the case must be evaluated by reference to the rationale of the limitation period that has barred the action, including the four rationales to which McHugh J referred."
The four rationales that his Honour was referring to were set out by Ipp AJA at [78] as follows: "McHugh J (at [552]) identified four broad rationales for the enactment of limitation periods, generally. These were: (a) As time goes by relevant evidence is likely to be lost; (b) It is oppressive to a defendant to allow an action to be brought long after the circumstances that gave rise to it have passed; (c) It is desirable for people in the community to be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Many in the community have a significant interest in knowing that they have no liabilities beyond a definite period; (d) The public interest requires that disputes be settled as quickly as possible."
As set out above, the defendant relies, first, on the presumptive prejudice arising from the delay which, after deduction of the period of 32 weeks, amounts to a little over one and half years. Ultimately, that question must be determined as to whether a fair trial may take place. A fair trial need not be perfect or ideal as per McColl JA in Rundle, supra. The evidence relied on by the plaintiff demonstrates that relevant witnesses to the incident in which the plaintiff was injured are available and have made statements in relation to it. The defendant disavowed any reliance on actual prejudice, and having been given prompt notice of the plaintiff's workers compensation claim, its insurer has had the benefit of both investigating the incident and medically examining the plaintiff from an early stage following his back surgery. This is not a case where the presumptive prejudice caused by the delay itself gives rise to any significant prejudice to the defendant. There is therefore no reason why the discretion to extend time should not be exercised in favour of the applicant.
The defendant did not object to the affidavit of the plaintiff sworn 3 February 2017, the day of the hearing. Nor did it cross-examine the plaintiff, who deposed that prior to instructing his solicitors on 15 April 2011, he did not receive any legal advice from any person. He had never made a claim for compensation and since first instructing his solicitors, he had followed their advice to progress his claim. Further, he deposed: "6 At no time was I ever advised there was any problems with time limitation for bringing the action (sic)."
The plaintiff was not cross-examined on his affidavit. However, the defendant, by its counsel, described it as "economical" and submitted that it provided no proper explanation for the lack of any advice as to the relevant limitation period being given to the plaintiff. It was further submitted that there was no evidence as to what, if any, advice was given to the plaintiff, and the statement contained in [6] of the affidavit could be regarded as "equivocal" and some other explanation could be inferred from it. The difficulty with that submission was that it was not put to the plaintiff that he meant other than he received no advice as to time limitations on his work injury damages claim.
The evidence relied on by the plaintiff demonstrated that the plaintiff's workers compensation claim was pursued diligently, particularly once the medical dispute as to WPI was identified.
On 20 September 2013, however, the plaintiff's solicitors erred in notifying the defendant that the plaintiff was to make a claim pursuant to the relevant provisions of WIM Act, and on the same day, serving a pre-filing statement. The defendant's solicitors notified the plaintiff's solicitors on 18 October 2013 that the service was invalid.
Thereafter, throughout 2014 and into 2015, the plaintiff's solicitors pursued the defendant, through its solicitors, for the documentation that was required for the plaintiff's expert to compile his report. The detail of the paper chase involved does not need to be rehearsed, however, the expert report was not received by the plaintiff's solicitors until 1 September 2015. Shortly thereafter, counsel was briefed to advise and a conference took place on 18 September 2015, following which, the plaintiff's solicitors progressed the claim expeditiously to enable the pre‑filing statement to be served on the defendant's solicitors on 18 January 2016. Some of the delay in obtaining the relevant documents therefore falls at the feet of the defendant, and that was conceded by the defendant's counsel at the hearing.
The plaintiff relied on the decision of Judge Taylor SC in Afarin v Excelsior Pty Limited [2013] NSWDC 65 at [12] to [18] as setting out the correct principles in relation to the exercise of the court's discretion. His Honour's judgment included a reference to ASB-Tech Services Pty Limited (in liquidation) v Doeland & Anor [2003] NSWCA 167, where Hodgson JA said at [34], in respect of the need for an explanation for the delay: "The correct approach is to regard the provision of an explanation as a necessary step in the application, and the nature of the explanation as being a matter which has to be taken into account in the ultimate determination of whether it is fair and just to grant the extension. The weaker the explanation, the greater the need to show that there would be little prejudice to a respondent."
Here, I am satisfied that the plaintiff has provided an adequate explanation for the delay. In substance, much of the delay was caused by the plaintiff's solicitors' lack of diligence in promptly complying with the provisions of the WIM Act, so as to enable the plaintiff's claim to be brought within time. It was properly conceded by counsel for the defendant that responsibility for delay of that nature could not be sheeted home to the plaintiff.
In Smith v Grant [2006] NSWCA 244, the Court of Appeal considered a limitations provision under a different statutory scheme, namely, the Motor Accidents Compensation Act 1999. Basten JA (with whom Handley and McColl JJA agreed), said at [60]: "Accordingly, the weight of authority under the 1988 Act in this Court favoured the view that if a claimant could reasonably rely upon the conduct and advice of his or her solicitors, although it was negligent, such reliance could provide a satisfactory explanation for delay in commencing proceedings …"
I therefore find that an adequate explanation has been provided by the plaintiff for the delay. Further, the presumptive prejudice involved in that delay does not amount to significant prejudice that would make the chances of a fair trial unlikely. On the contrary, there is no actual prejudice relied on by the defendant and a fair trial may take place. For those reasons it is fair and just that I exercise my discretion to grant the leave sought for the plaintiff to commence, nunc pro tunc, these proceedings.

Costs of the application

The defendant submitted that its opposition to the plaintiff's application was entirely appropriate and not brought for any forensic advantage. Further, the plaintiff had served two of his affidavits late, on the morning of the hearing, and in those circumstances, the ordinary rule as to costs should be applied, namely, the successful applicant who has allowed a limitation period to expire, should pay the costs of the application, unless the opposition of the defendant to the application was unreasonable - see Holt v Wynter [2000] 49 NSWLR 128 at [121]. Alternatively, the defendant submitted that each party should pay its own costs.
The plaintiff submitted that because much of the delay was caused by the lack of compliance of the defendant, as a model litigant, with its obligation to provide the information requested by the plaintiff's solicitors, that costs should follow the event. Alternatively, costs should be costs in the cause. The plaintiff's Notice of Motion, as set out above, sought no order as to costs.
I am not satisfied that the defendant's opposition to the plaintiff's application was unreasonable given the state of the plaintiff's affidavit evidence. However, as there was no actual prejudice relied on by the defendant, and much of the delay was contributed to by it, it is appropriate in this case for each party bear his or its own costs of the application.

Conclusion and orders

I therefore make the following orders: 1. I grant leave, nunc pro tunc, pursuant to s 151D(2) of the Workers Compensation Act 1987 for the plaintiff to commence these proceedings by filing his Statement of Claim on 14 July 2016. 2. Each party to pay his or its own costs of the application.

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: 09 February 2017

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