Palackalody v St Vincent's Hospital Sydney Limited

Delay

1. Before considering this issue, it is well to note that the Court of Appeal in in ITEK Graphix Pty Ltd v Elliott (2001) 54 NSWLR 207 at 225 stated: ""I have pointed out that the justice of the case is to be determined by its own individual circumstances. Often, a failure satisfactorily to explain the delay will not be decisive. Ordinarily, the issue of prejudice will be of paramount importance."
2. The plaintiff read an affidavit of Mr Robalino, the solicitor with the carriage of her matter. In that affidavit Mr Robalino gave a detailed and thorough explanation for the delay. In relation to that delay, it should be noted that within the total period of delay there were times when time ceased to run against the plaintiff by application of the provisions of section 151D(A) of the Act.
3. It was accepted by the defendant that it was open to me in the exercise of my discretion under section 151D to take this fact into account (Gower v State of New South Wales [2018] NSWCA 132 per White JA at [54]).
4. The defendant pointed to three discrete periods which it alleges represented unexplained delay. These were: 1. between the date of the alleged incident (15 May 2017) and March 2019 when the plaintiff first sought legal advice; and 2. from March 2019 to September 2019. On the earlier date the plaintiff was told by her legal representatives of her possible entitlements under the Act and of the three-year limitation period. The later date being the date upon which she instructed her solicitor to proceed; and 3. from 13 May 2021 to 17 March 2022 being the period after the suspension of time ceased following agreement between the parties that the plaintiff's WPI was to be assessed at 19% and the time that Mr Robalino was instructed to file a prefiling statement. This later event was an event which again suspended the running of time; 4. the period between 27 July 2022, when an unsuccessful mediation certificate was issued, and the commencement date of the proceedings being 16 January 2023.
5. Mr Barry KC, who appeared for the plaintiff, submitted that the delay was adequately explained as being explicable initially by the process of obtaining instructions and then expert reports in relation to the alleged injuries. This activity of course was necessary in order to both consider the process of demonstrating the requisite WIP ratio, and thereafter engaging with the defendant in relation thereto. It was also necessary for the preparation and filing of the PFS.
6. The period of delay after finalisation of that period of activity, as Mr Barry KC submitted, was attributable to the need for the plaintiff's solicitor to obtain expert opinion as to the issue of liability.
7. As Mr Barry KC correctly submitted, the obtaining of such expert liability evidence was a necessary step which had to be undertaken in order for the solicitor for the plaintiff to provide a certificate in accordance with schedule 2 of the Legal Profession Uniform Application Act, enabling the plaintiff to commence these proceedings.
8. The expert liability report was received in draft on 7 January 2022, notwithstanding that, the expert had been retained on the 27 July of the previous year. The proceedings thereafter were commenced on 16 January 2023.
9. I should add that, Mr Stanton of counsel, who appeared for the defendant, did not put in issue the necessity for Mr Robalino, to obtain expert liability evidence before commencing the proceedings.
10. Mr Barry also submitted that prior to the certificate issuing under section 151H (1) of the Act, which occurred on 13 May 2021, the plaintiff was unable to bring the claim. I accept that this is the case.
11. While the defendant's criticisms of the explanation by the plaintiff for the delay could not be described as unreasonable, I do not consider that these criticisms are sufficiently well-founded to ground the conclusion that the relief sought should not be granted. In my view, it must be borne in mind that the explanation required is one which is "adequate." In my view, the issue of delay is not intended to be judged against the standard of perfection.
12. In my opinion the plaintiff has adequately explained the delay in commencing the proceedings, and certainly that explanation is not one which should deny her the relief which she seeks.
13. In that regard I reiterate, that as was made clear in ITEK, the relief which the plaintiff seeks in her Amended Notice of Motion may be afforded to her even in the absence of an explanation for the delay.

Prejudice

1. The defendant fairly conceded that it could not adduce any evidence to demonstrate that it has suffered actual prejudice on account of the delay. Similarly, it fairly conceded that it could not contend that any delay has led to a conclusion that a fair trial would now not be possible.
2. The defendant thus made clear that its case on prejudice was one of presumptive prejudice, in the sense explained by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.
3. In the context of presumptive prejudice, the defendant made criticism of the pleading. This criticism was directed to the references in the pleading to the earlier lifting incidents which occurred prior to 15 May 2017.
4. In that regard Mr Stanton referred me to the authority of the State of New South Wales v Donnelley [2004] NSWCA 133. In that case, the defendant argued that if leave were granted the nature of the pleading was such as to greatly widen the scope of investigations which the defendant would be required to make in order to meet the pleaded case. The court considered that this was a fact relevant to the exercise of discretion.
5. Donnelley was a case which of course was decided on its facts, which facts in my opinion, bear no resemblance to the facts in these proceedings. In that regard, I did not understand the defendant to be submitting that the references in the Statement of Claim to the earlier injuries were productive of actual prejudice.
6. It seems to me that if the defendant has criticisms of the pleading, these concerns can be taken up initially with the plaintiff through discussions amongst the parties legal representatives, and if after that process these concerns remain unresolved, by Notice of Motion.
7. Thus, I do not see in the circumstances of this case, that the defendant's criticisms of the pleading is a relevant matter for me to consider in the exercise of discretion, which I must exercise under section 151D.

Conclusion

1. For these reasons I have concluded the plaintiff has adequately explained the delay and no prejudice, presumptive or otherwise, has been established. Accordingly, in my view, the interests of justice dictate that it is appropriate to make order 1 as sought in the Amended Notice of Motion.

Costs

1. Mr Barry KC submitted that the appropriate order was that costs of the Amended Motion be costs in the cause. Mr Stanton on the other hand submitted the plaintiff, being a person seeking what is in reality an indulgence, should pay the defendant's costs.
2. In support of his submissions, Mr Stanton referred me to the decision of Franklin v State of New South Wales [2023] NSWSC 796, where Lonergan J stated: "In that respect I rely on the remarks of Sheller JA in Holt v Wynter [2000] NSWCA 143 at [121] where his Honour observed: "In relation to costs ordinarily any successful applicant who has allowed him or herself to get out of time should pay the costs of the application unless the respondent opposition was wholly unreasonable..." That approach and principle has been followed and applied in a number of decisions of this Court and I apply that approach and that principle here." [16-17]
3. While each costs order must depend on its own underlying facts, I agree with Mr Stanton, that the reasoning of Lonergan J in Franklin is applicable here, as it could not be said that the defendant's opposition to the plaintiff's Amended Notice of Motion was unreasonable.

Orders 1. That pursuant to section 151D (2) of the Workers Compensation Act 1987, the plaintiff has leave, nunc pro tunc, to commence proceedings against the defendant as and from 17 January 2023; and 2. The plaintiff pay defendant's costs of the Amended Notice of Motion

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