Ward v Les Russell & Son Pty Limited and Warkworth Mining Limited [2021] NSWSC 67

Supreme Court New South Wales

Medium Neutral Citation: Ward v Les Russell & Son Pty Limited and Warkworth Mining Limited [2021] NSWSC 67 Hearing dates: 3 and 4 August 2020 Date of orders: 12 February 2021 Decision date: 12 February 2021 Jurisdiction: Common Law Before: Bellew J Decision: (1) The parties are to provide my Associate, by 25 February 2021, draft Short Minutes of Order giving effect to the conclusions reached in this judgment, and incorporating a timetable for the further conduct of the proceedings, including a timetable for the filing of all lay and expert evidence. (2) The question of costs of each of the three notices of motion is reserved. (3) In the absence of agreement being reached as to costs, the parties are to provide written submissions to my Associate by 25 February 2021, such submissions not to exceed two pages in length. (4) The proceedings are listed for further directions before me on 26 February 2021 at 9.30 am. Catchwords: PRACTICE AND PROCEDURE – Where plaintiff injured in a work accident – Where plaintiff received incorrect advice from his solicitor regarding his entitlement to workers compensation payments and common law damages – Where no proceedings for common law damages were brought based on that advice - Application by the plaintiff for leave to commence proceedings for common law damages against the first defendant in its capacity as his former employer –– Where a prima facie case of negligence against the first defendant had been made out – Where the delay in bringing proceedings had been explained by the plaintiff – No prejudice to the first defendant WORKERS COMPENSATION – Where plaintiff claimed workers compensation payments following incorrect advice from his solicitor – Where the plaintiff was a coal miner for the purposes of the relevant legislation – Where jurisdiction to deal with coal miner matters was conferred exclusively on the District Court of NSW – Where the Workers Compensation Commission purported to make an award of compensation to the plaintiff – Whether the plaintiff's claim for compensation amounted to a valid election – Whether plaintiff should be granted leave to revoke such election if valid LIMITATION OF ACTIONS – Where plaintiff injured in a work related accident – Where plaintiff was given incorrect advice by his solicitor as to his rights at common law – Where plaintiff sought to commence proceedings against the second defendant in its capacity as the operator of the mine site at which he was working at the time – Whether such proceedings out of time – Whether appropriate to deal with the limitation question in advance of a trial – Whether the plaintiff knew that his injury had been was caused by the fault of the second defendant – Whether the plaintiff knew that his injury was sufficiently serious to justify the bringing of an action against the second defendant – Whether the plaintiff ought to have known that his injury was caused by the fault of the second defendant Legislation Cited: Civil Procedure Act 2005 (NSW) Compensation Court Act 1984 (NSW) Compensation Court Repeal Act 2002 (NSW) Limitation Act 1969 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Workers Compensation Act 1987 (NSW) Workers Compensation Legislation Amendment Act 2001 (NSW) Workplace Injury Management and Workers Compensation Act 1988 (NSW) Cases Cited: Baggs v University of Sydney Union [2013] NSWCA 451 Baker-Morrison v State of New South Wales [2009] NSWCA 35; (2009) 74 NSWLR 454 Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 Commonwealth of Australia v Shaw (2006) 66 NSWLR 325; [2006] NSWCA 209 Dunn v Firth [2003] NSWCA 280 Gallagher Bassett Services Pty Limited v Murdock [2013] NSWCA 386; (2013) 86 NSWLR 13 Gower v The State of New South Wales [2018] NSWCA 132 Howley v Principal Healthcare Finance Pty Limited [2014] NSWCA 447 Itex Graphix Limited v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 Murgolo v AAI Limited [2009] NSWCA 295 Pomare v Whyte [2009] NSWCA 317 The State of New South Wales v Taylor [2001] HCA 15; (2001) 204 CLR 461 Category: Procedural rulings Parties: Robert Francis Ward – Plaintiff Les Russell & Son Pty Limited – First Defendant Warkworth Mining Limited – Second Defendant Representation: Counsel: P Cummings SC and P Williams – Plaintiff P A Rickard – First Defendant D A Lloyd – Second Defendant