Humble v HMS Australia Operations Pty Ltd [2020] NSWSC 907

Supreme Court New South Wales

Medium Neutral Citation: Humble v HMS Australia Operations Pty Ltd [2020] NSWSC 907 Hearing dates: 15 July 2020 Date of orders: 17 July 2020 Decision date: 17 July 2020 Jurisdiction: Common Law Before: Harrison AsJ Decision: The Court orders that: (1) Leave is granted to the plaintiff pursuant to s 151D of the Workers Compensation Act 1987 (NSW) to file a statement of claim. Such statement of claim is to be filed within 21 days. (2) Costs are reserved. Catchwords: WORKERS COMPENSATION — Limitation period — Extension of time — Workers Compensation Act 1987 (NSW), s 151D(2) — Where the plaintiff did not make an application until after he was retrenched — Leave granted Legislation Cited: Workers Compensation Act 1987 (NSW), ss 151D, 151G, 151H Cases Cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 139 ALR 1 Holt v Wynter (2000) 49 NSWLR 128; (2000) 31 MVR 467; [2000] NSWCA 143 Itek Graphix Pty Limited v Elliott [2001] NSWCA 442 Category: Procedural and other rulings Parties: Rodney French Humble (Plaintiff) HMS Australia Operations Pty Ltd (Defendant) Representation: Counsel: D R Benson (Plaintiff) T Rowles (Defendant)

Solicitors: Slater & Gordon (Plaintiff) Sparke Helmore (Defendant) File Number(s): 2020/93491 Publication restriction: Nil

Judgment 1. HER HONOUR: By summons filed 25 March 2020, the plaintiff seeks an order that leave be granted to file and serve a statement of claim out of time. The defendant opposes the granting of leave. 2. The plaintiff is Rodney French Humble. The defendant is HMS Australia Operations Pty Ltd ("HMS Australia"). The plaintiff relied upon his affidavits dated 25 March 2020 and 23 April 2020, and of his solicitor Stuart Brendan Barnett dated 25 March 2020. Neither of the deponents were required for cross examination. The defendant did not rely upon any affidavit evidence. 3. This is an application pursuant s 151D of the Workers Compensation Act 1987 (NSW) as amended, as it applies to "workers in or about a coal mine". 4. Section 151D of the Workers Compensation Act relevantly reads: "151D Time limit for commencement of court proceedings against employer for damages (2) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken. (3) The Limitation Act 1969 does not apply to or in respect of court proceedings to which this section applies. …" 1. This summons was filed two years and eight months outside of the three year limitation period under s 151D(2).