18Following receipt of the arbitrator's reasons and determination, Mr Puleo had sought a report from an expert on the defendant's liability. He received such a report on 29 November 2010.
19On 7 December 2010 Mr Puleo served on the defendant a pre-filing statement pursuant to s 315 of the WIM Act. On 12 January 2011 he received a pre-filing defence from the solicitor for the defendant.
20This notice of motion was filed on 7 March 2011.
21The District Court proceedings against Reckitt were transferred to this Court on 31 March 2011.
22There is a preliminary dispute between the parties about how long the plaintiff is out of time. The plaintiff says that he is entitled to rely on the provisions of s 151DA of the Workers Compensation Act , which relevantly is as follows: -
" 151DA Time not to run for commencement of proceedings in certain cases
(1) Time does not run for the purposes of section 151D:
(a1) while the determination of the claim concerned is delayed as permitted by section 281 of the 1998 Act, but not including delay beyond 2 months after the claimant has provided all relevant particulars about the claim as required by section 281 (2) (b) of that Act, or
Note. Delay in determining a claim beyond 2 months is only permitted on the basis that degree of permanent impairment is not fully ascertainable and the insurer has notified the claimant of this. In such a case, paragraph (a) of this subsection can apply (if a dispute about whether degree of permanent impairment is fully ascertainable is the subject of medical assessment) to further prevent time running for the purposes of section 151D.
...
(b) while a pre-filing statement served in accordance with section 315 of the 1998 Act in respect of the claim concerned remains current.
..."
23It is common ground that if the plaintiff had the advantage of subs (1), the amount by which he was out of time would be reduced by two months under subs (1)(a1) and a further three months under subs (1)(b). That would mean that for the purposes of this motion he would be considered to have been about 370 days out of time.
24The question raised is whether a plaintiff can avail himself of either of these provisions if the circumstances contemplated by subs (1)(a1) and (1)(b) do not arise until after the limitation period has expired. Mr O'Connor, for the defendant, submitted that in the present case the plaintiff's entitlement to rely on the provisions of the section ceased when the limitation period expired on 30 September 2009 and could not thereafter be resurrected. Mr O'Connor relied for that submission on statements of Hodgson and Bell JJA in Paper Coaters Pty Limited v Jessop [2009] NSWCA 1. Hodgson JA said at [3]: -
"Under s 151DA of the 1987 Act, the service of a pre-filing statement stops time running for limitation purposes while it remains current (and it remains current from the time it is served until it is struck out or withdrawn)."
25Bell JA said at [50]: -
"The effect of service of the respondent's pre-filing statement is that time ceased to run under s 151D of the 1987 Act."
26Mr O'Connor also relied on statements of Sheehan PJ in Pasminco Cockle Creek Smelter Pty Ltd v Gardner [2006] NSWWCCPD 108 and Capitol Construction Group Pty Ltd v Kazic [2007] NSWWCCPD 36. I will not repeat the statements. They simply state that the filing of a pre-filing statement before the expiry of the limitation period stops time from running.
27All these cases were concerned with the operation of Part 6 of the WIM Act, whose purpose is to promote the timely settlement of claims and not with the effect of any pre-filing statement filed after the expiry of the limitation period. All the cases were concerned with the effect for the purposes of Part 6 of the filing of such a document before the expiration of the limitation period. None says anything about what the effect might be of such a statement filed after expiry.
28The plain statement in s 151DA(1) is that in the circumstances it sets out time does not run for the purposes of s 151D (emphasis added). Given that applicants for leave under s 151D(2) are necessarily out of time, there seems no practical purpose to be served by extending relief where relevant events happen or commence during the limitation period but withholding it where they do not. The section does not in terms require it, nor does the context require the section to be understood in that way. There appears to be no authority for such a construction.
29I think that the plaintiff can rely on s 151DA(1)(a)(b). In my opinion he was 370 days, that is one year and five days, out of time when his statement of claim was filed.
30In Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207, Ipp AJA with whom Spigelman CJ and Sheller JA agreed, considered the proper approach to an application for leave under s 151D, where the legislature does not specify the circumstances to be taken into account by the court. Having reviewed previous authorities, Ipp AJA said at [87]: -
"In my opinion, in limitation legislation such as s 151D(2) of the Workers Compensation Act , where a broad discretion is conferred 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 rationales of the limitation period that has barred the action, including the four rationales to which McHugh J referred."
31The four rationales identified by McHugh JA in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 were repeated thus by Ipp AJA at [78]: -
"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."
32It seems to me that for present purposes the principal features of the case are these: -
(a) The delay is one year and five days.
(b) The defendant had notice before its letter of 1 December 2006 of the plaintiff's accident, of some account of how it happened and at least a preliminary indication of what the plaintiff's disabilities then appeared to be. The defendant had occasion to consider the circumstances in which the plaintiff was injured. In the course of considering the matter the defendant had the plaintiff's report, the employer's report and a factual report of C&A Support Services about the circumstances in which the plaintiff was injured. In addition it had medical reports.
(c) The notice of the plaintiff's claim pursuant to s 281 Workplace Injury Management Act 1998 was sent to the defendant on 22 March 2010, a little less than six months after the expiration of the limitation period. The defendant then knew that the plaintiff would pursue his claim.
(d) At all material times the defendant was in a better position than the plaintiff to know precisely what its arrangements were with Reckitt about the provision of labour.
(e) The plaintiff was in a difficult position because he could not be sure who his employer was. He engaged the services of a solicitor about that and the solicitor briefed counsel about it. Even then things did not become clear until the Commission determined the matter more than eight months after the limitation period had expired.
(f) By 30 September 2009, when the limitation period expired, the plaintiff still did not know the full extent of his injuries. It was not until Dr Mastroianni's report was received early in the following month that the plaintiff knew that he could cross the statutory threshold of 15% of whole person impairment.
(g) No suggestion is made by the defendant that it has suffered actual prejudice on account of the delay.
33I bear in mind what McHugh JA said in Brisbane South Regional Health Authority v Taylor . In view of the plaintiff's not over-excessive delay and bearing in mind the fact that the defendant has known from very early times about the plaintiff's injury and the circumstances in which he received it, I think that the risk of prejudice to the defendant in letting the plaintiff in is minimal.
34It is necessary to consider three further submissions made by Mr O'Connor. The first asserts that the plaintiff deliberately decided to allow the statutory period to expire and so ought not to be granted relief. Mr O'Connor relied on part of the headnote in the report of Itek Graphix Pty Limited v Elliot t.
35It is plain from the judgments in Itek Graphix Pty Limited v Elliott that where a respondent is found to suffer no prejudice it does not follow that the Court will grant relief to an applicant if the applicant has made a fully informed decision not to commence proceedings within the limitation period. The facts are set forth in the judgment of Ipp JA. I will not repeat them but observe that it is clear that a fundamental reason for his Honour's decision is that the respondent made a fully informed decision not to commence proceedings within the limitation period. His Honour said at [33]: -
"As mentioned, the three year period in terms of s 151D(2) of the Workers Compensation Act 1987 expired on 24 October 1997. Prior to that date, the respondent had a conference with Mr Andrew Lidden, of counsel, and her solicitor, Mr Hagipantelis. At that conference she decided that she would not bring proceedings against the appellant for common law damages caused by the fall and would only pursue her claim for workers compensation. I shall later examine, in greater detail, the factual circumstances surrounding this decision. It is sufficient, at this stage, to note that the respondent decided, deliberately, and after receiving full legal advice from her barrister and solicitor on the issue, to allow the three year limitation period under s 151D(2) to expire."
37Sheller JA said at [4]: -
"Ipp AJA has concluded that the appellant suffered no prejudice in consequence of the resultant delay but that the decision initially taken not to proceed at common law and allow the three year period under s 151D(2) of the Workers Compensation Act to expire were taken quite deliberately on a fully informed basis. The respondent further delayed for a significant period before changing her mind. I entirely agree that this in itself is a potent circumstance which must be taken into account and will ordinarily weigh heavily against an applicant."
38It seems to me that the plaintiff acted reasonably throughout. He sought legally advice in a timely fashion. His solicitor sought the advice of junior counsel in a timely fashion. The case was attended by a peculiar difficulty, namely that of identifying the employer. To say that by 30 September 2009 the plaintiff decided to sue Reckitt is not to say that he had decided not to sue the defendant. He and his solicitor was still unsure who the employer really was. That was why senior counsel was consulted later on. The decision of the Commission, holding that the defendant was the employer and Reckitt was not, was not known until more than eight months after the expiry of the limitation period. That decision was made in an action brought against both putative employers, the plaintiff being unsure who his employer was.
39For the principle explained in Itek Graphix Pty Limited v Taylor to be raised against an applicant, it has to be shown that the applicant was fully informed when he decided not to sue. I do not think that the principle applies here. Whilever he was unsure who his employer was, the plaintiff could not be said to be fully informed. Moreover, I do not think that in the circumstances a decision to sue Reckitt was tantamount to a decision not to sue the defendant.
40Mr O'Connor drew attention to the onus cast on an applicant like the plaintiff to give a satisfactory explanation of his conduct. Reference was made to a statement of Ipp AJA in Itek Graphix Pty Limited v Taylor at [98], thus: -
"In my opinion, to grant leave to sue long after the expiry of a limitation period, when the applicant has made a deliberate decision to allow the statutory period to expire, in the absence of special circumstances explaining satisfactorily the conduct of the applicant, would set at naught the purpose of the legislation."
41I have mentioned that in May 2008 junior counsel was approached for advice and that counsel sought further information, that information was supplied in September 2009 and that the statement of claim was filed against Reckitt on 30 September 2009. Mr Puleo gave evidence and Mr O'Connor asked him why the advice had not been annexed to his affidavit. Mr O'Connor called for the advice. It was produced to the Court and a claim of client legal privilege was made on behalf of the plaintiff. Mr O'Connor submitted that by the evidence given by Mr Puleo the plaintiff's privilege had been waived. I upheld the claim of privilege and stopped Mr O'Connor from adducing evidence about communications between junior counsel and Mr Puleo.
42Mr O'Connor's submission was that the plaintiff relied on client legal privilege to restrict details of what might otherwise had been a much fuller explanation, to which, it was submitted, the Court was entitled and which it was required to consider before it could come to a decision to extend time. Reference was made to a statement of Hodgson CJ in Eq in Wayne Lawrence Pty Limited v Hunt [1999] NSWSC 1044 at [15]: -
"It appears to be the law that where legal professional privilege or other privilege is claimed, that of itself cannot be the basis of an adverse inference being drawn against the party claiming that privilege. However, in my opinion, where a party is claiming to make out a case, and that party bears the onus of proof, and where that case could be given positive support by calling evidence of legal advice or lack of legal advice, the failure of that party to call that evidence can be taken into account in deciding whether that party has discharged the onus of proof which it bears. The plaintiff's solicitor accepted that this was so during argument. I take that view into account in reaching the conclusion that I do reach, because my view that the upholding of privilege does not involve unfairness to the defendant does depend upon my view that the defendant is not precluded from commenting on, and relying on, the failure of the plaintiff to support its case by giving evidence about its legal advice, or lack of legal advice, on this point.
43Notwithstanding the absence of evidence of anything that junior counsel wrote or said to Mr Puleo, the inference seems inescapable that the advice was to do what was then immediately done, namely to commence proceedings at common law in the District Court, naming Reckitt as defendant. In my opinion the plaintiff adequately explained the state of his knowledge from time to time and why he did what he did. I do not regard the maintenance on his behalf of the claim of privilege as throwing any doubt on that or as amounting to a failure to call evidence that he ought to have called.
44Mr O'Connor submitted that in order to discharge his onus of proving that a fair trial could be had, the plaintiff should have given the Court more information than he did. There was this submission: -
"... the Court should have been informed, in our submission, that the plaintiff's injuries occurred in that particular set of circumstances, relevant witnesses to that would be nominated individuals and the Court should have been told that those witnesses are all, or some, still alive, and their whereabouts are known. That has not happened."
45Mr O'Connor did not cite authority in support of his submission. I doubt whether at an interlocutory stage the plaintiff must go to such lengths to demonstrate that the defendant can have a fair trial, particularly when the delay is not excessive and the defendant makes no claim to have suffered actual prejudice.
46The third submission was that the Court should not grant an extension of time because it would be futile to grant it. Mr O'Connor referred to the statement of Gleeson CJ to that effect in Salido v Nominal Defendant (1993) 32 NSWLR 524 at 532. The submission continued: -
"In every case in which the Courts have considered the "non delegable" duty of care is owed by a labour hire company to an employee working for a host employer, the employee, when injured, has been working at a place and/or was doing work, in a general sense, of which the labour hire company knew.
The evidence before the Court here is that the Forstaff did not have actual knowledge of what work the applicant was doing when injured nor did it know that the applicant know that was working at a site other than the site to which it had sent the applicant to work.
It is well settled that the "non delegable" duty owed by an employer is a duty to take care as a reasonable employer to avoid or minimise a risk of injury of which the reasonable employer knew or ought to have known.
It is respectfully submitted that it follows from this that a reasonable employer is not liable for injury to an employee if that injury occurred in circumstances of which it did not know and of which, as a reasonable employer it could not have known.
It is further respectfully submitted that there is no evidence (which must necessarily have come from the applicant in these circumstances) that the employer ought to have known. It is, of course, not in issue that the employer did not have actual knowledge.
It is respectfully submitted that, in the absence of evidence that the employer ought to have known of a risk of injury, the applicant has not established that there was, in fact, a "duty" in the circumstances."
47It does not seem to me as though the plaintiff must fail in his action. Whether the defendant ought to have known what the risk of injury to the plaintiff was is a matter for legal argument based on the whole of the evidence. Whether an employer may be found to have breached a non-delegable duty of care regardless of fault may be the subject of argument, as to which see the judgment of Mason P in TNT Australia Pty Limited v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1 at [47]. In my opinion the Court should be wary of deciding at an interlocutory stage that the plaintiff could never succeed. Thee issues are best reserved for the trial. It is sufficient if the plaintiff has an arguable case, and that seems to be so.
48I propose to grant the relief sought.
49Submissions were made both ways about costs but it seems to me to be just to order that costs be costs in the proceedings.
50I make the following orders: -
- Grant leave to the plaintiff pursuant to s 151D Workers Compensation Act to commence proceedings against the defendant by 7 March 2011;
- Order that the costs of motion be costs in the proceedings.