Hunter v Illawarra Coal Holdings Pty Ltd [2024] NSWSC 961

Supreme Court New South Wales

Medium Neutral Citation: Hunter v Illawarra Coal Holdings Pty Ltd [2024] NSWSC 961 Hearing dates: 6 August 2024 Decision date: 08 August 2024 Jurisdiction: Common Law Before: Ierace J Decision: (1) Pursuant to s 151D(2) of the Workers Compensation Act 1987 (NSW), leave is granted to the plaintiff to commence proceedings against the defendant and time is extended for the commencement of said proceedings to 20 December 2023. (2) Costs of the motion are costs in the cause. Catchwords: WORKERS COMPENSATION – Application for leave for extension of time – Whether leave should be granted – Explanation for delay – Strength of case – Prejudice – Discretion to grant leave exercised Legislation Cited: Workers Compensation Act 1987 (NSW) s 151D Cases Cited: Gower v State of New South Wales [2018] NSWCA 132 Muller v Mt Arthur Coal Pty Limited [2024] NSWSC 677 Ward v Les Russell & Son Pty Limited and Warkworth Mining Limited [2021] NSWSC 67 Category: Procedural rulings Parties: Stephen Hunter (Plaintiff) Illawarra Coal Holdings Pty Ltd (Defendant) Representation: Counsel: R Brown (Plaintiff) J Webb (Defendant)

Solicitors: Brydens Lawyers (Plaintiff) Hicksons Lawyers (Defendant) File Number(s): 2023/460873

JUDGMENT 1. HIS HONOUR: By notice of motion filed 30 April 2024, the plaintiff, Stephen Hunter, seeks an order pursuant to s 151D of the Workers Compensation Act 1987 (NSW) (the Act) for the grant of an extension of time in which to commence proceedings. The grant of leave for extension of time is sought nunc pro tunc to the date of the filing of the statement of claim. The plaintiff also seeks that the defendant pay the costs of the motion. 2. The defendant neither opposes nor consents in relation to the first two orders respectively and submits that it is a matter for the Court to determine whether those orders ought to be made. In relation to the costs order, the defendant notes that an order was made by the Registrar on 3 June 2024 to amend order 3 sought in the motion, specifically that the plaintiff's costs in bringing the motion are to be 'costs in the cause'. The defendant submits that the failure to commence proceedings was not caused by any fault of theirs, and therefore, any costs ought to be 'costs in the cause'. By the time of the hearing of the motion, the parties had agreed that costs would be in the cause. However, in my view, it remains a matter for the Court to be satisfied that the orders sought on the substantive issue are open and appropriate.