Ponce v Coles Supermarkets Australia Pty Ltd

Jurisdiction: Common Law

Before: Garling J

Decision: (1) Grant leave pursuant to section 151D of the Workers' Compensation Act 1987 for the plaintiff to commence and maintain the proceedings against the second defendant.
(2) Such grant of leave is to it takes effect from 22 March 2023.
(3) The Notice of Motion is otherwise dismissed.
(4) Order each party to pay his and its own costs.

Catchwords: WORKERS COMPENSATION – Work injury damages – Common law remedies – Limitation periods – Three-year time limit after date of injury to commence proceedings for damages – Leave required to commence proceedings under s 151D of the Workers’ Compensation Act 1987 – Where proceedings have commenced against a defendant within the three year time limit after date of injury and another defendant is added after the lapsing of the three year time limit – Whether the granting of leave to commence proceedings after the three year time period following the work injury is in the interests of justice

Legislation Cited: Workers' Compensation Act 1987 s 151D
Interpretation Act 1987 s 36(1)

Cases Cited: Not Applicable

Texts Cited: Not Applicable

Category: Procedural rulings

Parties: Deivi Ponce (P)
Coles Supermarkets Australia Pty Ltd (D1)
The Trustee for Arthur Tzaneros Discretionary Trust & the Trustee for Luke Webber Trust (D2)

Representation: Counsel:
E Walsh / W Lidden (P)
No appearance (D2)
K Ralph (D2)
Solicitors:
Brydens Lawyers (P)
McCulloch & Buggy Lawyers (D1)
Bartier Perry Lawyers (D2)

File Number(s): 2022/59089

Publication restriction: Not applicable

EX TEMPORE JUDGMENT

1. On 1 March 2019 the plaintiff was injured in circumstances where he was a worker employed by the second defendant, the Trustee for the Arthur Tzaneros Discretionary Trust and the Trustee for the Luke Webber Trust, a labour recruitment agency, who would then place the plaintiff with different subcontractors.

2. He first commenced placement with the first defendant, Coles Supermarkets Australia Pty Limited, at its Distribution Centre at Eastern Creek in 2018.

3. In the course of working at the Coles Distribution Centre, he sustained injuries occasioned, he says, by the fast repetitive manual handling tasks which he was engaged to undertake. His case will be that each work day, he worked for about seven hours, during which time he had to pick up and move over 2000 items, and; as a consequence of that repetitive work, he sustained injuries which ultimately led to surgery, eventuating in ongoing difficulties.

4. He commenced proceedings against the first defendant, Coles Supermarkets Australia Pty Limited, on 1 March 2022.

5. With respect to his injury, a limitation period of three years was in place. However, the calculation of time, in accordance with s 36(1) of the Interpretation Act 1987, has the effect that the date upon which his injury occurred does not form part of that three-year period. Accordingly, he commenced proceedings against the first defendant within the limitation period.

6. For reasons associated with the relationship between the plaintiff and the second defendant, the plaintiff was obliged to take various pre-filing steps, which are fixed by the Workers’ Compensation legislation, for claims being made by workers against their employers. Compliance with those steps was not able to be effected properly within the three-year time limitation period. However, on 23 March 2023, those steps were complete, and it was then open to the plaintiff to commence proceedings against the second defendant, which he has done, by the filing of an Amended Statement of Claim, on that date. However, the plaintiff requires leave to commence the proceedings out of time, by reason of the provisions of s 151D of the Workers' Compensation Act 1987. A grant of leave under that provision is at large. It follows that the Court should consider what the interests of justice are in making such a grant.

7. The first defendant has not appeared today and, I am informed, does not oppose any order being made by the Court.

8. The second defendant, which is the party in respect of which leave is being sought, is represented by its solicitor, who informs the Court that the second defendant will abide by any order of the Court. She does not draw any matter to the Court's attention for its consideration.

9. What is clear is that, but for the pre-filing requirements of the legislation, the plaintiff could have, and would have, commenced proceedings in time. It is also clear that neither defendant on the material before the Court is in any way prejudiced by the fact that the claim did not commence against the second defendant until 23 March 2023.

10. In those circumstances, it seems clear to me, that the plaintiff, who suffered a significant work injury, should be entitled to bring and pursue a claim, which is not said to be frivolous or vexatious or in some other way inappropriate, for the Court's determination. Such a course would be in the interests of justice.

11. In those circumstances, I make the following orders:

12. Grant leave pursuant to section 151D of the Workers' Compensation Act 1987 for the plaintiff to commence and maintain the proceedings against the second defendant.

13. Such grant of leave is to take effect from 22 March 2023.

14. The Notice of Motion is otherwise dismissed.

15. Order each party to pay his and its own costs.

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