WORKERS COMPENSATION - LIMITATION OF ACTIONS - plaintiff sued 20 months out of time for damages for industrial injury and applied for extension of time- Workers Compensation Act 1987 s.151D(2)- plaintiff was advised by counsel 7 months after injury not to sue - his condition later worsened - after change of solictors and of advice- he brought proceedings- no possible dispute of liability- District Court (Goldring DCJ) considered Itek Graphix Pty Ltd v Elliot and granted extension - defendant claimed leave to appeal- leave to appeal refused as suggested errors not well based on facts before Goldring DCJ- no question of principle. ND

LOWER COURT District Court JURISDICTION : LOWER COURT DCT No 831/01 (Wollongong) FILE NUMBER(S) : LOWER COURT Goldring DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 040431/03 BEAZLEY JA MCCOLL JA BRYSON JA

TUESDAY 6 APRIL 2004 BHP STEEL (AIS PTY LTD) v. NECATI DUM Judgment 1 BEAZLEY JA: I will ask Bryson JA to give the first judgment. 2 BRYSON JA: In these proceedings the respondent, the plaintiff in the District Court, sued for damages for personal injury sustained in an industrial accident at the defendant's works at Port Kembla on 26 March 1997. He was working in the packaging products operation building and was injured when his right index finger was caught by a hydraulic clamp forming part of a strip welding machine. The circumstances of his injury are such that there could not on any reasonable basis be any doubt that he would, if he had sued in a timely way, have established the defendant's liability to pay whatever are appropriate damages. 3 The plaintiff did not sue within the time prescribed by s 151D of the Workers Compensation Act 1987 and brought proceedings in the District Court on 26 November 2001. Later, as a step in those proceedings, he applied by notice of motion for leave to proceed under s.151D(2). The application came before Goldring DCJ on several occasions, in particular on Tuesday 10 December 2002 when his Honour was unable to complete the hearing but stated in his reasons of that date the position achieved thus far. The proceedings came before his Honour again on 9 May 2003 when further evidence was taken and the application was granted, and further reasons were stated orally that day. Both statements of reasons must be taken together to understand the decision. The defendant now applies by ordinary summons for leave to appeal against the order granting leave. 4 It appears from the terms of s.151D(2) that the power exercised by Goldring DCJ is a discretionary one, and there is very little to be found in the terms of the section itself relating to the grounds on which the discretion is to be exercised. Goldring DCJ referred to - and the terms of his decision show that he understood that he was applying - the decision of the Court of Appeal in Itek Graphix Pty Limited v Elliott (2001) 54 NSWLR 2007, the leading judgment in which is that of Ipp JA. In my understanding the reference made on the second page of the reasons of 10 December 2002 to Itek Graphix shows that Goldring DCJ was of the view that he was applying conclusions stated by Ipp JA at paras 87, 90, 91 and 98 of that judgment. Whether or not that decision establishes prescriptively the approach which Courts must follow in reaching decisions under s 151D(2) need not be examined fully on this occasion, due to the limited nature of the application and the bounds set by Goldring DCJ's having approached the decision on the basis that he was applying the decision in Itek. For present purposes it is sufficient to address his Honour's decision within those bounds. Further examination of the implications of Ipp JA's reasons would open a large subject not limited to consideration of Itek, and there is no occasion for present purposes to do so. On a fuller examination it would be necessary to address observations made in judgments in Coal and Allied Operations Pty Limited v Stringer (2003) NSWCA 271 including the observations of Hodgson JA at paras 4 and 5. 5 From the reasons of 10 December 2002 it is to be understood that Goldring DCJ found, and regarded as important, that the plaintiff's medical condition had deteriorated so that his condition was clearly worse than it was at the time of receipt of initial legal advice. The observations made by his Honour indicate his view of the facts in the following paragraph: "Normally in a case where an applicant has received legal advice and sought a second opinion which results in different advice, subject to what the Court of Appeal has said in Itek Graphix Pty Limited v Elliott, provided there is no actual prejudice to the other party and there is no deliberate choice to allow a limitation period to expire there is, in my view, a good reason why leave should be granted, particularly where, as in this case, there has been different legal advice and, it appears, the applicant's medical condition has deteriorated so that his condition is clearly worse than it was at the time of the receipt of the initial advice." 6 This passage remains of importance for understanding the conclusions reached in May 2003. In my view it is to be understood that his Honour found that there was no deliberate choice to allow a limitation period to expire. 7 In the reasons of 9 May 2003 Goldring DCJ referred to and quoted from this passage in para 20 of the plaintiff's affidavit of 8 March 2002: "I was also told that I had potential rights with a common law claim for negligence but because I had returned to work I should not exercise those rights because I would lose my job." 8 From the whole of the reasons it is evident that his Honour found that this truly expressed a belief of the plaintiff about the advice given to him and about the effect of the advice. As his Honour observed, the plaintiff was not cross-examined about this subject; indeed he was not cross-examined about anything. His Honour also observed to the effect that it is possible where interpretation was involved, as it was in this case, and an explanation is somewhat technical, that a person such as the plaintiff was quite likely to form an impression not precisely that intended. His Honour said: "I have to accept Mr Dum's statement in his affidavit. I also accept that that was not exactly what he was told but it does explain his action. What he was told by Mr Dennis appears from a statement by Mr Dennis in a letter which was in evidence. It deals in a general way with the subject on which the plaintiff had the belief expressed although it is evidence that the plaintiff to have formed the belief, as it has been found that he did, must have suffered from some misunderstanding." 9 Within the relatively wide range of matters for discretionary consideration under s.151D(2), matters of weight are very much for the trial judge. I will endeavour to identify the principal matters in respect of which criticisms were offered in submissions by senior counsel for the claimant before us. 10 The first matter on which counsel made a number of observations was to the effect that the learned trial judge did not give sufficient weight to the principle of finality which is the primary objective of s 151D and the time limitation which it prescribes. Finality is of course important, and limitation provisions give effect to its importance, but only according to their terms, and in the present case only with the immediate qualification of the widely expressed discretionary power which Goldring DCJ purported to exercise. I do not think that there is any indication in his Honour's reasons that inappropriately small regard was paid to this principle. 11 The second matter referred to in a number of submissions made on behalf of the claimant was to the effect that there had been, or it should be found that there had been, a deliberate decision by the plaintiff not to proceed to claim common law rights and that this had continued for a little over four years between the first legal advice furnished by Mr Wilkins of counsel in October 1997 and the decision in November 2001 to initiate proceedings. There is to my reading no finding in the judgment of Goldring DCJ that there was a deliberate decision not to proceed. Indeed I read the observation which I earlier quoted as including a finding that there was no deliberate choice to allow the limitation period to expire, and I see as involved in that that there was no deliberate choice against making a claim under the common law.

12 Furthermore, as far as I can see, there is no basis in the evidence for finding that the plaintiff made a deliberate choice not to proceed under the common law. The correspondence conducted on the plaintiff's behalf by his first solicitors with representatives of the defendant was quite inconclusive. It was repeatedly asserted on behalf of the defendant that the plaintiff could and should take remedies open to him under the Workers Compensation Act 1987 including lump sums under ss 66 and 67, and no conclusive result emerged. Not only is there no finding that there was a deliberate decision not to proceed; I do not see any realistic prospect that, if an appeal came before the Court of Appeal after a grant of leave, there might be such a finding. 13 Another matter, and to my understanding the remaining principal matter on which criticism was directed at the judgment, was to the effect that Goldring DCJ failed to pay sufficient regard to the fact that advice had been given rather than to the reasons for the advice. It was said that after advice had been given, that is to say the advice of Mr Wilkins of counsel in October 1997 which was against proceeding, deliberation by the plaintiff proceeded for four years and continued, and counsel said the inference was that the plaintiff was proceeding on the basis of the advice he had been given. 14 The evidence of the plaintiff about what he understood from the advice given appears in his affidavit. It is not under challenge. It certainly does not amount to a claim that he had a full grasp of what Mr Wilkins had said. I do not think the criticism offered has a factual basis either in findings made by Goldring DCJ or in findings which the Court of Appeal could be asked to make if leave to appeal were granted.

15 There are several elements in the background of the application the importance of which must, I feel, have exerted themselves. One is that the plaintiff's evidence was not challenged by cross-examination in any respect whatsoever. Another is that there was no basis whatever for the view that the defendant incurred prejudice with respect to a prospective trial of the issues by reason of the plaintiff's not having brought his proceedings by March 2000, but having commenced the proceedings some twenty months later. 16 It was conceded before Goldring DCJ, as his Honour's reasons record, that there was no such prejudice. But the circumstances go a little beyond the concession, as on the facts there does not appear to have been any prospect whatever that liability could ever have been debated. There was no question of deterioration of the defendant's position at the trial of any such issue through the effluxion of time. On the other hand, according to the plaintiff's case, with time further particulars of his injury and disability emerged; and I see this as working to the advantage overall of the conduct of the trial of the proceedings on a fair basis. 17 In my opinion this is not a case where the Court of Appeal should grant leave to appeal and the following order should be made: Ordinary summons dismissed with costs. 18 BEAZLEY JA: I agree. I would add the following comment. In my opinion the remarks of Ipp JA at para 98 in the judgment in Itek Graphix Pty Limited should be read in context of the facts of that case, and should not be read as a gloss on, or as setting a standard different to or higher than the statutory test. 19 MCCOLL JA: I agree with Justice Bryson and Justice Beazley. I would make one further short comment. In my view the claimant's argument sought to elevate to rules of law matters all of which may to some or other extent be prayed in aid in consideration of the exercise of the s 151D discretion. There is a considerable body of authority to the effect that the fundamental principle is that the discretion is exercised both in the context of a relevant statutory scheme and on the justice of the case, as expressed in Salido, and in my view in Itek. I agree with the orders proposed by Justice Bryson. 20 BEAZLEY JA: The orders of the Court are as proposed.

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