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[2020] NSWDC 842
procedural. Leave was granted to the plaintiff to commence proceedings out of time and proceed on her Statement of Claim filed 12 June 2020; costs of the Notice of Motion were costs in the cause; the matter...
The plaintiff's claim was filed well after the limitation period the parties agreed applied. The judge accepted that the delay was serious and largely resulted from the plaintiff's legal representatives. But the evidence did not show that the plaintiff herself had chosen to delay or had failed to act diligently. The defendant had investigated the workplace complaint years earlier and had relevant records and witness statements. Although the passage of time created prejudice, the defendant did not show that it made a fair trial impossible. The judge therefore granted leave for the claim to proceed.
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2,071 words · generated 30/09/2026
In Nikolis v State of New South Wales [2020] NSWDC 842, Montgomery DCJ considered an application for leave to commence a work injury damages claim outside the limitation period. The plaintiff, Anna Nikolis, had worked for the State from 19 June 2006. Her pleaded case alleged that workplace conduct between 19 June 2006 and 14 September 2017 caused a psychological injury, described in the Statement of Claim as Chronic Adjustment Disorder with depressed and anxious mood. The pleaded conduct included alleged bullying, intimidation, harassment, isolation and verbally aggressive or threatening behaviour by a manager and supervisor. The claim relied on 82 alleged incidents. The judgment records those allegations as the plaintiff's pleaded case, not as findings that the conduct occurred. [5]
The plaintiff brought the claim in negligence and for statutory breach of duty. The defendant admitted legal responsibility for the acts and omissions of its officers, servants and agents, but denied breach and relied on s 151L of the Workers Compensation Act 1987 (NSW). The Court assumed for the purposes of the leave application that the named supervisor fell within the relevant categories. [6] The plaintiff's Statement of Particulars claimed a total of $1,942,510 for past and future economic loss and lost superannuation. Those were claims, not amounts determined by the Court. [7]
A Medical Appeal Panel confirmed a 24% Whole Person Impairment assessment on 16 August 2010. The parties agreed that the plaintiff could not have commenced the work injury damages proceedings before receiving that appeal result. They also agreed that, after the relevant statutory adjustments, the limitation period expired on 15 April 2012. The Statement of Claim was filed on 12 June 2020, more than eight years after that agreed expiry date. The plaintiff therefore applied for leave under s 151D. [9]
The defendant resisted leave, arguing that the long delay created palpable prejudice and prevented a fair trial. It also argued that the plaintiff had not adequately explained the delay and had not been diligent. [10] The judge ultimately granted leave under s 151D, ordered the costs of the motion to be costs in the cause, and directed the matter to return for a mention on 10 February 2021.
The decision turned on the combined assessment of the plaintiff's explanation for delay and the claimed prejudice to the defendant. It was not a determination of whether the pleaded workplace conduct occurred, whether the defendant breached a duty, or what damages might be payable. The judge expressly assumed, for purposes of the application, that the plaintiff had a properly arguable case. [8]
On delay, the evidence indicated that the plaintiff's legal representatives had not progressed the matter for periods of time. The judge noted that a solicitor's affidavit described periods of apparent inadvertence or inattention, and that the delay between the first and final Pre-Filing Statements fell at the feet of the plaintiff's legal representatives. The judgment identified no suggestion that the plaintiff herself had been personally lacking in diligence. The plaintiff had trusted that her lawyers were advancing her interests, and evidence that she had been told the limitation period had passed but not to worry was unchallenged. In the judge's view, that did not show that the plaintiff had chosen to abandon or deliberately postpone the claim. [The reasons on these matters follow numbered paragraph 17 in the supplied judgment and are not themselves numbered.]
The court separately evaluated prejudice. It accepted that delay necessarily causes prejudice, referring to Brisbane South Regional Health Authority v Taylor [1996] HCA 25. But the existence of prejudice did not answer whether the defendant had shown prejudice substantial enough to make a fair trial unavailable. The complaint had been made in 2006. The defendant's insurer had investigated and obtained statements in 2007, and the defendant had been involved in the continuing workers compensation process. The court considered the claim's subject matter well documented and not dependent on obtaining entirely new witness material many years later. [The relevant discussion follows paragraph 17 in the supplied judgment.]
The defendant relied on an investigator's 2019 report describing witnesses with limited recollection, witnesses who did not wish to participate, and people the investigator could not locate. The judge did not treat those reports as proof that the witnesses were unavailable. The witnesses had not given evidence before the Court about their ability to recall events, and the report did not establish that they had been shown their earlier statements or given an opportunity to refresh their memories. The judge also observed that witnesses could be subpoenaed and that contemporaneous statements might be available for use if a witness became unavailable. These were observations about the evidentiary position, not findings that any particular witness would in fact be available at trial.
A further issue was whether the plaintiff might seek to rely on new corroborative evidence. Her Pre-Filing Statement referred to intended lay evidence and updated medical and wage material. The defendant acknowledged that it could not be known whether the plaintiff would ultimately seek to introduce evidence beyond what had been disclosed. The judge regarded the possibility of undisclosed evidence changing the case as speculative on the material before the Court. The judge also noted the potential operation of s 318 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) if additional evidence were later sought. The trial judge would then consider any objection and whether leave should be granted.
The judgment applies the statutory framework identified in its title and reasons: s 151D of the Workers Compensation Act 1987 (NSW), including s 151D(2). It describes the discretion as broad and characterises the decision as an evaluative judgment about the satisfactoriness of the explanation for delay, with reference to the hypothetical reasonable plaintiff. It also considers prejudice and the fairness of allowing the claim to proceed.
The judgment does not set out a comprehensive account of all statutory requirements under s 151D, nor does it purport to replace or reform the earlier authorities it cites. It applies those authorities to the facts before it. In particular, the court referred to Hunter v Roberts [2009] NSWCA 116 for the hypothetical reasonable plaintiff approach; Smith v Grant [2006] NSWCA 244 and Salido v Nominal Defendant for the breadth of the relevant discretion; and Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 and Gower v State of New South Wales [2018] NSWCA 132 in connection with whether prejudice denied a fair trial.
The “before and after” significance is therefore case-specific rather than a change in the legal test. Before the ruling, the plaintiff required leave because the limitation period had expired. After the ruling, she had permission to proceed on the Statement of Claim filed on 12 June 2020. The judgment did not decide liability, damages, or whether each alleged incident would be proved. Nor does the supplied decision provide later appellate consideration or subsequent treatment of Nikolis. Any claim about later developments would require sources beyond this judgment.
The judge stated: “The discretion under s 151D(2) is a broad one.” [The passage appears in the reasons following paragraph 17, which are unnumbered in the supplied judgment.] In plain English, the judge did not treat the application as controlled by one factor alone. The explanation for delay, the plaintiff's conduct, the evidentiary position and fairness all formed part of the discretionary assessment.
The judge described the task as “an evaluative judgment of satisfactoriness of the explanation” and referred to the “hypothetical reasonable plaintiff”. [Unnumbered reasons following paragraph 17.] This means the explanation was assessed in context, rather than by simply counting the years that had passed. The judge considered that the plaintiff had relied on her lawyers and had not herself chosen to delay the litigation.
On prejudice, the judge found that “the defendant has not satisfied me that it would be prejudiced at a hearing” so as to make granting leave unfair. [Unnumbered reasons following paragraph 17.] This did not mean that the passage of time had caused no disadvantage. The Court accepted presumptive prejudice, but considered that the existing records and contemporaneous investigation meant the defendant had not established prejudice sufficient to deny a fair hearing.
The final conclusion was: “it is just, reasonable and fair that the plaintiff be granted the extension of leave to commence proceedings.” [Unnumbered reasons following paragraph 17.] That conclusion resolved the leave application only. The operative orders granted leave and allowed the plaintiff to proceed on her filed Statement of Claim. They did not determine the truth of the allegations or the outcome of the substantive damages claim.
The decision is most directly relevant as an example of a s 151D leave application where the agreed limitation period has expired, the delay is substantial, and the claimant attributes the delay to legal representatives rather than a personal decision to defer proceedings. The plaintiff's evidence that she trusted her solicitors, together with the absence of evidence that she had elected to abstain from bringing the claim, mattered to the court's evaluation of the explanation.
It is also relevant to an application in which the defendant alleges that delay has impaired witness evidence, but the events were investigated contemporaneously and records or signed witness statements remain available. In Nikolis, the reported reluctance or fading memories of potential witnesses were not enough, on their own, to establish that those witnesses were unavailable or that a fair trial could not occur.
The decision's reasoning depends on its evidence. The judge noted a formal complaint in 2006, investigation and witness statements in 2007, continuing workers compensation proceedings, and detailed later particulars addressing the alleged incidents. [6]-[7] and [13]-[15] These circumstances supported the finding that the dispute was documented. The case should not be read as saying that long delay or solicitor error will always be excused. The Court made an evaluative decision on this record, and expressly recognised prejudice arising from the passage of time.
The supplied judgment contains no decisions issued after Nikolis and therefore provides no evidence about how later courts have treated it. It would be unsupported to state that a later court followed, distinguished, or otherwise applied this decision without examining later authorities.
Within Nikolis itself, Montgomery DCJ discussed earlier cases as part of the reasoning. The judgment referred to Brisbane South Regional Health Authority v Taylor for prejudice associated with the passage of time. It drew on Smith v Grant, including that case's discussion of Blue Scope Steel v De Caires, when considering explanation and discretion. It referred to Salvation Army (South Australia Property Trust) v Rundle and Gower in relation to fair-trial prejudice, and to Hunter v Roberts for the hypothetical reasonable plaintiff approach. It distinguished the plaintiff's circumstances from Itek Graphix Pty Ltd v Elliott, describing this as not a case where the plaintiff had “sat on her hands”. These are the trial judge's stated uses of those authorities, not evidence of later treatment of Nikolis.
The ruling left the substantive claim unresolved. The defendant denied breach and relied on s 151L, while the Court assumed only that the claim was properly arguable for purposes of deciding leave. The trial would still need to address the pleaded incidents, the applicable duty and breach issues, causation, injury and loss. The judge did not determine any of those matters.
The judgment also left open what evidence the plaintiff would ultimately seek to introduce. The Pre-Filing Statement referred to lay witnesses, updated medical evidence and wage material, while the Court observed that any attempt to introduce additional corroborative evidence could raise an issue under s 318. The decision did not decide in advance whether any particular evidence would be admitted.
Other unresolved matters include whether witnesses would attend, what they would say after reviewing contemporaneous statements, and how the trial judge would assess their evidence. The investigator's report was not direct testimony from those witnesses, and the leave decision did not settle the weight or admissibility of any particular statement. The substantive proceeding, rather than the leave application, would address those evidentiary questions.
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Judgment (EX TEMPORE)
ORDERS
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Nikolis
State of New South Wales
Leave was granted to the plaintiff to commence proceedings out of time and proceed on her Statement of Claim filed 12 June 2020; costs of the Notice of Motion were costs in the cause; the matter was listed for mention on 10 February 2021; and the exhibits were ordered returned forthwith and in Court.