District Court New South Wales Medium Neutral Citation: Nikolis v State of New South Wales [2020] NSWDC 842 Hearing dates: 4 December 2020 15 December 2020 Date of orders: 15 December 2020 Decision date: 15 December 2020 Jurisdiction: Civil Before: Montgomery DCJ Decision: 1. Leave be granted to the Plaintiff to commence proceedings out of time pursuant to s 151D of the Workers Compensation Act 1987 (NSW) and to proceed on her Statement of Claim filed 12 June 2020. 2. Costs of the Notice of Motion be costs in the cause. 3. I direct that the matter be returned before the Judicial Registrar for Mention on Wednesday, 10 February 2021. 4. Exhibits be returned forthwith and in Court. Catchwords: Civil Practice & Procedure – Workers Compensation – Leave to Commence a Work Injury Damages Claim – Section 151D Workers Compensation Act 1987 (NSW) Legislation Cited: Evidence Act 1995 (NSW) s 191 Legal Profession Uniform Law Application Act 2014 (NSW) Cl 4, Sch 2 Workers Compensation Act 1987 (NSW) ss 60, 151D, 151D(2), 151DA, s 151L Workplace Injury Management and Workers Compensation Act 1998 (NSW) ss 281, 282, 318 Cases Cited: Blue Scope Steel v De Caires [2005] NSWCA 431 Brisbane South Regional Health Authority v Taylor [1996] HCA 25 Gower v State of New South Wales [2018] NSWCA 132 Hunter v Roberts [2009] NSWCA 116 Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104 Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 Salido v Nominal Defendant [1993] 32 NSWLR 524; [1993] 18 MVR1; [1993] Australian Tort Reports 81‑258 Smith v Grant [2006] NSWCA 244 Category: Procedural rulings Parties: Anna Nikolis (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: Mr P Stockley (Plaintiff) Mr S Flett (Defendant) Solicitors: Turner Freeman Lawyers (Plaintiff) HWL Ebsworth Lawyers (Defendant) File Number(s): 2020/00174799 Publication restriction: N/A Judgment (EX TEMPORE) 1. By Notice of Motion filed 25 September 2020, the plaintiff seeks leave pursuant to the provisions of s 151D Workers Compensation Act 1987 (NSW) to commence a work injury damages claim by Statement of Claim filed in this Court on 12 June 2020. For convenience, I will refer to the parties as "plaintiff" and "defendant" respectively. 2. The plaintiff relies on the affidavit of Mr Kim, solicitor, made 25 September 2020. He, when employed by Messrs Turner Freeman, solicitors with the conduct of the matter for the plaintiff, had the day‑to‑day conduct of the plaintiff's claim between 6 January 2019 and 28 October 2020. He made his affidavit from personal knowledge of his conduct of the file and on the basis of information and belief gained from reading the file as the claim had been handled by prior solicitors within the firm. He left employment with Messrs Turner Freeman on that later date. Mr Kim gave oral evidence and was cross-examined on his affidavit. Exhibits to Mr Kim's affidavit totalled 1,056 pages, however, with the assistance of experienced counsel, my reading was reduced to only the exhibited documents. In particular, this was achieved by counsel agreeing facts. The provisions of s 191 Evidence Act 1995 (NSW) apply to those agreed facts. 3. The plaintiff also relies on her affidavit made 26 November 2020. She was cross-examined. The plaintiff's application is opposed. 4. The defendant relies on the affidavit of Mr Medak made 6 November 2020. Mr Medak is a solicitor at HWL Ebsworth Lawyers retained by the defendant. He first received instructions on 6 November 2014. Annexures to Mr Medak's affidavit total 235 pages. Again, with the assistance of counsel, my reading was reduced to only the exhibited documents. 5. The plaintiff was born on 27 July 1970 and is now 50 years of age. She commenced employment with the defendant on 19 June 2006. In her Statement of Claim at paras [4] to [5], she pleads that between 19 June 2006 and 14 September 2017 she suffered injury in the form of Chronic Adjustment Disorder with depressed and anxious mood caused by the nature and conditions of her employment. Specifically, she particularises those conditions as involving bullying, intimidation, harassment, isolating behaviour, ostracising behaviour, demeaning behaviour, persecutory behaviour together with verbally aggressive and threatening behaviour received from the defendant's manager and the plaintiff's supervisor, Mr Sudhai Pillai. Her claim includes 82 allegations of such incidents. 6. She brings her claim in negligence and statutory breach of duty. By Defence filed 30 June 2020, the defendant admits that it is legally responsible for the acts and omissions of its officers, servants and agents. I was not told that Mr Pillai did not fall within those categories. I will assume for the purposes of this judgment that he did. The defendant denies the breach of duty of care and relies on s 151L of the Workers Compensation Act 1987 (NSW). 7. In her Statement of Particulars filed 30 June 2020, the plaintiff claims past economic loss in the sum of $910,260. She claims to have been totally unfit for work from 14 September 2007 to date. The plaintiff claims future economic loss in the sum of $819,808. The plaintiff claims loss of superannuation benefits in the sum of $212,442. In total, the plaintiff claims as at the date of her Statement of Particulars (30 June 2020), $1,942,510. 8. The Statement of Claim bears the certificate of Mr Kim signed by him on 12 June 2020, under Clause 4, Schedule 2 of the Legal Profession Uniform Law Application Act 2014 (NSW), deposing that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim for damages in these proceedings has reasonable prospects of success. The plaintiff was not cross-examined toward her claim being without prospects of success. For the purposes of these reasons, I assume, that the plaintiff has a properly arguable case. That assumption includes that, as the case proceeds and other witnesses are called, it will be available to the trial judge on the assessment of witnesses to determine whether or not the plaintiff's evidence is to be preferred. There is nothing in that which has been put to me in submissions (as efficiently as those submissions did canvass what would otherwise have required more than 1,200 pages of reading) of the existence of witness' statements or other evidence against the plaintiff or for the plaintiff. In short there was nothing put in submissions describing the extensive evidence of statements contemporaneously obtained, concerning the strengths or weaknesses of the plaintiff or defendant cases at trial. 9. On 16 August 2010, assessment of the plaintiff's Whole Person Impairment at 24% was confirmed on the Medical Appeal Panel dismissing the defendant's appeal against an earlier assessment. It is agreed that the plaintiff could not have commenced proceedings in this Court for a work injury damages claim prior to her receiving that appeal result. The parties agreed that after evaluation of the s 151DA adjustments, the relevant date for expiry of the three year limitation period pursuant to s 151D is 15 April 2012. Accordingly, the plaintiff seeks the Court's discretion to grant her leave to commence proceedings eight years and two months out of time. 10. The defendant opposed the plaintiff's application for extension of time on the bases that the passage of time is such that presumptive prejudice exists in a palpable form and that a fair trial could not occur. Further, that the plaintiff has failed to adequately explain the reasons for delay rather than identify a lack of diligence. 11. Finally, I am alerted by counsel for the defendant to Exhibit 2, being the plaintiff's Pre‑Filing Statement dated 28 May 2019, at para 8(L), which provided that the plaintiff intends to provide evidence from lay witnesses as to the injury circumstances and its consequences together with up-to-date medical evidence and wage material in due course. The defendant submission in this regard is that another factor to be taken into account is that there are yet things for the plaintiff to do and which by her Pre‑Filing Statement she has informed the defendant she intends to do, and that those matters are not presently available before the Court. 12. At the same time, counsel for the defendant fairly concedes that it is not to be known whether or not the plaintiff will in fact propose to introduce any evidence at the trial, other than the evidence contained in her Pre‑Filing Statement pursuant to her obligations under s 281 and 282 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). 13. Exhibit A is the plaintiff's chronology, which is agreed save that the defendant does not concede that the narrative descriptions are complete. The defendant identified 24 October 2014 as the date on which the plaintiff served her original Notice of Particulars pursuant to s 282 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). The defendant submitted that until that event, it could not have been aware of the plaintiff's intention to bring a work injury damages claim. If that submission be correct, then the defendant was on notice of the claim two and have years after the passing of the limitation period. 14. The defendant requested further and better particulars from the plaintiff as set out in the plaintiff's chronology, Exhibit A, and additionally on 23 December 2014. What is identified in the defendant's submission as a key event is the inclusion of the plaintiff's 73 page statement in her Amended Notice under s 282, served on 7 November 2018. That statement dealt with all 82 incidents upon which the plaintiff's claim is based. 15. After receipt of the Amended Notice, the defendant requested that the plaintiff provide further and better particulars by correspondence of 10 December 2018. This event is also not included in Exhibit A. The plaintiff's Pre‑Filing Statement of Particulars was served by her on the defendant in its final amended form on 29 May 2019. She had been examined by a qualified psychiatrist on 14 February 2019. 16. In addition to presumptive prejudice resulting from the passage of time, it now being approximately 13 years since the date of injury, the defendant points to the report of its factual investigator, MJM Corporate Risk Services, dated 19 June 2019 (Exhibit 4). 17. The Court was directed to the following matters there reported: 1. On 4 February 2019, Mr Pillai informed the investigator that: "as the events occurred over ten years ago he was not prepared to make any additional comments to the ones he had apparently made at the time." It also stated that he could not recall what those comments were and to whom he had made them and requested not to be contacted again. 1. In about November 2018, the investigator made telephone contact with Mr Loizou, who responded that he would not be able to make comments until after speaking to his superiors. The investigator did not report any follow up following being informed that Mr Loizou was on extended Long Service Leave. 2. On several occasions between December 2018 and May 2019, the investigator had successfully contacted Ms Buric. She had stated that after the passage of ten years "she had very little memory of events" but also that she had been subpoenaed to give evidence in court and would consider being interviewed again after being provided with "full written details of what her involvement should be in the matter and a list of all possible questions which may be put to her prior to considering co-operating". The investigator reported that the information was emailed and that Ms Buric stated that she did not receive it, perhaps because of her work email filters. 3. Ms Haque told the investigator that she had: "no recollection of the claimant whatsoever and did not wish to make any statements or being contacted any further". 1. In relation to ten other witnesses named in the report the investigator either could not locate them or they reported having no recollection of the complainant or that they hardly remembered her. 1. My overall impression of the report of the investigator of its own inquiries and without any evidence directly from any of the witnesses, is not that it speaks of witnesses who, having been referred to statements earlier made by them and having had the opportunity to refresh their memory, were making comment on their capacity to give evidence of those matters. My overall impression is that those persons, once having been employees of the defendant, were reluctant to be dragged into further participation by the giving of evidence. Their performance in actually giving evidence and what would be their evidence were they to be subpoenaed to attend and give evidence at hearing and with the opportunity of refreshing their memories from statements earlier made by them, is not accessible on the evidence. 2. During cross‑examination, Mr Kim was shown a letter from the plaintiff's solicitors to her dated 19 October 2016, Exhibit 1, which included records of the defendant from the period during which the plaintiff was injured and of the defendant's initial investigation. The documents included medical certificates and reports, times sheets, formal complaint, records of the meeting 14 December 2006, records of complaint in December 2006, an undated letter of Ms Buric, email from Mr Pillai to Ms Buric dated 10 June 2008, an undated statement of the plaintiff dated 17 September 2008, signed statements of the plaintiff dated 5 October 2007, of Mr Pillai dated 9 October 2007, of Mr Loizou dated 10 October 2007 and Ms Buric dated 11 October 2007. Further witness statements of the plaintiff referred to were dated 12 February 2008, 11 May 2009, 10 July 2009, 16 February 2012, 9 May 2014 and 26 August 2014, as well as affidavits of the plaintiff dated 3 December 2012 and 18 January 2013. The letter also included a chronology of events for the period 1 July 1991 to 3 July 2009 and statements by other witnesses and persons. Mr Kim conceded that during the period of his conduct of the plaintiff's file, he did not obtain any witness statements. 3. During cross‑examination, the plaintiff recalled making a statement to the defendant investigator in October 2007 at her home and agreed that she went to court before Arbitrator McNamee in 2009 in the course of her Workers' Compensation claim. She said that she could not recall whether or not she gave evidence or the details of that hearing. She said that she recalled the lawyers doing their part. She recalled that, at that time of making her complaint to her employer (the defendant) she gave a statement to Ms Buric, the person to whom she complained. She conceded that in order to succeed in her claim, she needed to prove that she had been actually bullied and that it would help to have witnesses who were people who had seen bad things being done to her. 4. Choosing an efficient approach, counsel for the defendant took the plaintiff to a small selection of her record of 82 incidents identified in her detailed statement provided to the defendant on 7 November 2018. The incidents are identified by date, identity of the employee whose conduct is the subject of the complaint , identity of the person to whom the complaint was made, a brief description of the complaint and reference to record sources such as diary notes and witness statements. 5. The plaintiff conceded that she has never sought statements from co-workers or persons involved in her claim for the purposes of obtaining their evidence in the hearing. To my understanding, the plaintiff's evidence confirmed her understanding that her work injury damages claim is proceeding on the basis of the records created while she remained employed by the defendant and in the subsequent investigation and in the ranking of her worker's compensation claim. 6. Given the agreement as to facts, I go to the affidavit evidence briefly and only so far as it is required in these reasons but the whole of the affidavit evidence has been considered. Mr Kim's affidavit evidences that a formal complaint was lodged with the defendant's human resources manager, Maria Buric, on 8 December 2006 regarding the conduct of the plaintiff's supervisor, Mr Pillai. The defendant's worker's compensation insurer, Employees Mutual Limited, were notified of the claim on or around that time and have managed and investigated the claim since that date including by obtaining a factual investigation from MJM Investigations dated 18 October 2007, obtaining the plaintiff's medical records from her treating doctors, having the plaintiff examined by independent medical experts repeatedly over the intervening years, assessing the impact of the injury on the plaintiff's capacity to earn (including an assessment by Ms Helen Wallace of Earning Capacity Assessments on 26 October 2015) and through proceedings and appeals in the Workers Compensation Commission as set out in para 8E of his affidavit). 7. I note that the workers compensation proceedings have remained alive and that the parties attended to formal applications several times over the intervening years. The defendant has been involved in the assessment of the plaintiff and has had the benefit of an investigation conducted contemporaneously with the making of the complaint. Mr Kim's affidavit further goes to these matters from para 9. At para 24, he notes that in November 2014 Arbitrator Capell issued his decision ordering the defendant to pay weekly compensation and s 60 treatment expenses. 8. As counsel for the defendant properly submits, between the first Pre‑Filing Statement served in October 2014 and the final Pre‑Filing Statement served in May 2019, there was a passage of substantial time. The plaintiff's Pre‑Filing Statement carried with it the obligation stated under ss 281 and of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), that she provide the defendant with particulars of and evidence in her claim. On the evidence of Mr Kim, that delay plainly falls at the feet of the plaintiff's legal representatives. There is no suggestion to the contrary. There is no suggestion in this case of a lack of diligence of the plaintiff personally. In particular, on 23 October 2017, delay of counsel then briefed by the plaintiff's solicitors was such that the solicitor invited him to return the brief if he could not attend to the matter. The matter then at hand was the provision of particulars satisfying the plaintiff's obligation which particulars the defendant pursued. On 6 September 2018, new counsel was briefed and an initial conference arranged with the plaintiff on 20 September 2018. It was shortly following , on 5 November 2018, that the plaintiff provided particulars pursuant to ss 281 and 282, including her settled long statement. 9. On 6 September 2019, mediation took place but it did not result in resolution of the matter. Mr Kim makes this frank statement at para 52 of his affidavit: "On perusing the file I observed a number of different solicitors have had carriage of the plaintiff's matter over the above outlined period of time; and that the matter did not progress for periods of time for reasons that are not clear but appear to have been due to inadvertence or inattention." 1. In her affidavit, the plaintiff stated that she retained Messrs Turner Freeman in August of 2008. They advised her to make a claim for weekly payments and medical expenses pursuant to her workers compensation rights. 2. The plaintiff, it will be remembered, has been assessed as suffering a Whole Person Impairment of 24% on the basis of psychological injury. There is nothing in the evidence to suggest that the plaintiff is other than a relatively unsophisticated person. She is entitled to have relied on her solicitors and to have trusted them, indeed on counsel as well, to advance her interests. I repeat, there is nothing to suggest a lack of diligence by her personally. She was aware of the pursuit of her workers compensation rights through the workers compensation process as identified in the affidavit of Mr Kim. I readily accept that it was reasonable for the plaintiff to have understood and to have trusted that her solicitors were advancing her interests. 3. Indeed, the plaintiff was aware that Turner Freeman made a claim on her behalf for lump sum compensation for psychiatric impairment supported by the opinion of Dr Selwyn Smith in 2009 and that on 16 August 2010 the Appeal Panel determined her whole person impairment at 24% in that they confirmed that earlier finding. She said that her lump sum claim was resolved on 8 September 2010. At para 9 of her affidavit, she significantly deposed: "After the lump sum claim had been determined, I had a conversation with the solicitor who now had conduct of the file, Emma Thompson and her supervisor. We discussed making a work injury damages claim. The supervisor said words to the effect 'it's already outside the time limit, but you don't have to worry about that'. To the best of my recollection I do not recall being told what the time limit was. I gave instructions to Turner Freeman to make a damages claim on my behalf. I believe this conversation took place sometime in 2013". 1. There is no evidence that the plaintiff at any time elected to abstain from or delay the bringing of this claim. 2. Mr Medak's affidavit confirmed that he was retained by the defendant on 6 November 2014 and otherwise confirmed matters of the chronology set out in Exhibit A and additional matters as referred to in these reasons. 3. On the whole of the evidence, the impression which I gained was that the subject matter of the plaintiff's claim is well documented and is not reliant upon the obtaining of new material from statements by persons so long after the event. To my enquiry, counsel for the defendant agreed that it had investigated the subject matter of the plaintiff's claim in 2007 and obtained statements from the relevant witnesses. The central witnesses were identified to me to be Mr Pillai, Mr Loizou and Ms Buric. It is only in relation to those three persons that the defendant focuses its claim of prejudice and only on the basis that to the extent reported by the investigator, in Exhibit 4, recently, further assistance has so far not been obtained from those persons. 4. During discussion, I put to counsel for the defendant that the claim of prejudice includes a criticism of the plaintiff's failure to obtain more recent statements from witnesses who provided statements on the subject matter contemporaneously with the events and in the earlier investigations. The defendants had been aware of those persons and their involvement and could have investigated whilst they were employed by the defendant, or, in the interim, since 24 October 2014 at the latest. There was nothing identified to me as information not contained in the records presently available and which information has been lost to the conduct of a fair hearing by the parties. 5. Counsel for the defendant conceded that all of the potential witnesses were identified in the October 2007 investigation. He confined the claim of prejudice to persons who might be called to corroborate the plaintiff's case. There is no evidence before me of such persons other than those in relation to whom the defendant is equipped by their earlier statements and other relevant information already. Specifically, the defendant has been aware of the involvement by presence at each incident of those persons from October 2010. 6. Counsel for the defendant referred to Exhibit 1, being a letter from the plaintiff's solicitors to her dated 19 October 2016. At about point 6 on p 4 of that letter, the paragraph sets out an explanation for the plaintiff of the difference between proof in her workers compensation claim where all she needed to show was that she perceived events in a particular way, and proof in a work injury damages claim, where she needs to show that she was actually bullied. Otherwise the content of Exhibit 1 is the solicitor writing to his client seeking information in order that further particulars of the claim as requested by the defendant might be provided to it. 7. Exhibit 3 is further confirmation of investigation of the matter in 2007 by MGM for the defendant. It includes that on 5 and 9 October 2007, they attended upon the plaintiff's residence and obtained her draft, unsigned statement. Thereafter and outside their presence, she amended her statement. The investigator provided reports on her statement and opinion on the investigation. 8. Counsel for the plaintiff, without opposition, informed the Court that the plaintiff satisfied the defendant's request made 16 October 2014 for provision of any advices given to the plaintiff on limitation of action by s 151D. Significantly, the defendant does not submit that the plaintiff has personally failed to diligently prosecute her claim whilst aware of the limitation period. 9. The unchallenged evidence of the plaintiff contained in her affidavit is that at some point during the period after her lump sum claim was determined her solicitors discussed making a work injury damages claim and told her not to worry that the limitation period had passed. I do not interpret that advice, given at a point of time, to contemplate that the solicitor giving it foresaw that more time in years would, in fact, pass before bringing the claim. It is not, in my view, to be interpreted as to say that leave would not be required. It simply did not provide any warning to the plaintiff and the fact is that, through no lack of diligence of her own, time has passed. 10. A significant factor is, however, and I repeat, that the defendant was aware of the plaintiff's intention to bring a work injury claim from about two and a half years after the expiration of the statutory period for the commencement of proceedings without leave and that fact is to be understood in combination with the extensive investigation of the claim from the time of its first being a complaint at work through that period and continuing in the course of the workers compensation proceedings. 11. In my opinion, as the defendant concedes, that the witnesses contacted by the investigator have expressed reluctance to participate in a hearing does not equate to them being "unavailable" witnesses. They can be subpoenaed. They can refresh their memories from their contemporaneously made statements for the purposes of giving evidence. In the event that a witness becomes unavailable for hearing, then their contemporaneously made statement could be tendered in evidence. On the whole, nothing in the defendant's submission identifies to me a substantial prejudice that would be suffered, albeit there is undoubtedly and as recognised in the law through cases such as Brisbane South Regional Health Authority v Taylor [1996] HCA 25, necessarily a prejudice through the passage of time. 12. The hearing will have the benefit of records created during the contemporaneously conducted investigation and most likely the participation of the persons who made those statements. Should the plaintiff seek to introduce to the hearing corroborative evidence from witnesses other than those whose statements are included in her Pre‑Filing Statement, then the defendant has the protection of s 318 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) and might object to the introduction of that evidence. It would then be a matter for the trial judge to consider whether or not to grant leave. 13. In my assessment after accepting the presumption of prejudice by effluxion of time in the circumstances, the defendant has not satisfied me that it would be prejudiced at a hearing such that the plaintiff has not identified on the issue of prejudice that it would be fair and reasonable to grant leave were that to be the only issue. 14. For the reasons which I have given, I am satisfied for the purposes of s 151D that the plaintiff's claim is a viable claim to bring. A real question is, the extent to which the lack of diligence of the plaintiff's solicitors is to weigh against her in her explanation for the delay and in the overall consideration of the exercise of discretion under s 151D. In Smith v Grant [2006] NSWCA 244 at 44, which was a case under the Motor Accidents Compensation Act 1999 (NSW) (in which the discretion is not more broad and indeed might be considered statutorily more limited than the discretion available to the Court under s 151D), the Court said at [44], referring to the President's judgment in Blue Scope Steel v De Caires [2005] NSWCA 431 at [29], the following: "…the finding in Itek Graphix that the plaintiff had made "a fully informed decision" not to pursue her claim. As has been seen, the present was not a case in which the claimant did not seek to pursue her claim, but was rather a case in which she chose a statutory alternative to litigation, on advice that this was an available and appropriate option in the circumstances. Although it may be said that she took a deliberate and tactical decision, it was not a decision to abandon a claim, and it was based upon advice which proved wrong, because, whether properly or not, the solicitor had treated the objection to the CARS process as "unexpected", and unlikely to succeed." 1. In the present case, the plaintiff did not make any deliberate or tactical decision against the immediate prosecution of her claim; she trusted in her solicitors. In my view, although there might not be as perfect or ideal a trial as there may have been had the plaintiff immediately commenced her work injury claim such as by filing her Statement of Claim at the time of her first Pre‑Filing Statement in October 2014 (or even earlier were it possible for her to have done so after she was assessed as above the 15% threshold), the prejudice inferred here is not such as would deny a fair trial. In this regard, I refer to the principle as stated by McColl JA in Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 at 183 recently restated in Gower v State of New South Wales [2018] NSWCA 132 at 191. 2. The decision which I have to make in the exercise of discretion is an evaluative judgment of satisfactoriness of the explanation and I am to consider the hypothetical reasonable plaintiff, see Hunter v Roberts [2009] NSWCA 116. As I have said, the plaintiff impressed as an unsophisticated person who has not in any way contributed to the lack of diligence in the bringing of her claim but rather was a person who trusted in her lawyers. This is not a case in which it can be said, as were the facts in Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104, that the plaintiff has sat on her hands. This is not a case where the plaintiff has been shown to fail in diligence or deliberateness in explaining the delay. 3. The discretion under s 151D(2) is a broad one. Indeed, the iTek decision stands for the proposition on the exercise of discretion, under the legislation there applied, that leave might still be granted even in circumstances where the deliberately abstaining plaintiff can provide some explanation both satisfactory and pertinent and come to the conclusion that justice would best be served by granting leave: see Smith v Grant supra 41 to 44 and Salido v Nominal Defendant [1993] 32 NSWLR 524; [1993] 18 MVR1; [1993] Australian Tort Reports 81‑258, particularly the judgment of the Chief Justice at 528 to 532. 4. In my opinion, that the plaintiff has not tracked down witnesses (being a speculative proposition put by the defendant that between now and the hearing she might go about collecting some other evidence) is a matter which must be borne in mind because the plaintiff has stated for herself that leeway in her final Pre‑Filing Statement (Exhibit 2). But it is not, on the evidence as it is before me, likely that the plaintiff is holding up her sleeve valuable evidence which might change her case and surprise the defendant at hearing. 5. Some reference was made to the decision of Wilkinson v Perisher Blue [2012] NSWCA 250. In Wilkinson at 214-219, Hoeben JA (with whom the Court agreed) confirmed the trial judge's ruling as correct. Section 318 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) does not prohibit a plaintiff from relying on evidence, the nature and substance of which evidence has been disclosed by the Pre‑Filing Statement. It is not necessary for the plaintiff to have provided a verbatim statement of that evidence. So, in this case, I repeat the observations earlier made that it is speculative that in a case where so long ago investigators with apparent thoroughness collected statements of what witnesses would say, and which has subsequently been the subject of examination through the course of Workers Compensation proceedings; that para 8(L) of the plaintiff's Pre‑Filing Statement, carries with it some likely threat of a surprising alternative or new evidence or case to be brought by the plaintiff to the disadvantage of the defendant at a hearing. In any event, the provisions of s 318 would then prevail. 6. On the whole of the evidence and for the reasons given, I am of the view that it is just, reasonable and fair that the plaintiff be granted the extension of leave to commence proceedings. The parties have agreed that in the event that I came to that view the order for costs would be costs in the cause. MFI #5 PLAINTIFF'S SUBMISSIONS ORDERS 1. I make orders as follows: 1. Leave be granted to the Plaintiff to commence proceedings out of time pursuant to s 151D of the Workers Compensation Act 1987 (NSW) and to proceed on her Statement of Claim filed 12 June 2020. 2. Costs of the Notice of Motion be costs in the cause. 3. I direct that the matter be returned before the Judicial Registrar for Mention on Wednesday, 10 February 2021. 4. Exhibits be returned forthwith and in Court. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 February 2021