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. Background 1. By statement of claim filed 20 December 2023, the plaintiff claims damages in negligence against the defendant. It is claimed that on or about 27 May 2019, the plaintiff was walking along a poorly lit walkway behind the longwall, while working underground at the defendant's South32 Mine located at Appin in New South Wales, when the back of his left foot dropped into an obscured gap between damaged foot plates. The plaintiff alleges that the defendant was under a duty of care, and relevantly breached that duty by, amongst other things, failing to devise, implement and maintain a safe system of work; failing to illuminate or adequately illuminate the rear walkway; failing to provide the plaintiff with proper and safe plant and equipment; and having in place a system that permitted loose material to fall and remain upon the rear walkway, thereby obscuring any gaps between the footplates. 2. The plaintiff claimed that, by reason of the defendant's negligence, he sustained injury to his left knee and resulting disability, loss and damage, which were particularised in the statement of particulars, which was filed at the same time. The statement included particulars with respect to the plaintiff's continuing disabilities, out-of-pocket past and future expenses by reason of his injuries and disabilities, domestic assistance or attendant care, loss of income, earning capacity and superannuation benefits, future economic loss, and 'Fox v Wood damages', ostensibly being damages by reference to Fox v Wood (1981) 148 CLR 438. 3. By a defence filed 22 April 2024, the defendant denied that the plaintiff sustained an injury which was caused by any negligence of the defendant. Alternatively, it was claimed that if the plaintiff sustained an injury as alleged, he sustained it consequent to his own contributory negligence. As a further defence, the defendant raised s 151D of the Act to argue that the plaintiff is not entitled to recover damages by reason of that section. Other sections of the Act were mentioned, with the final paragraph: "In answer to the whole Statement of Claim, the defendant says that it has made certain payments to the plaintiff under the provisions of the Workers Compensation Act 1987 [(NSW)] and to the extent of such payments pleads the same as a defence to these proceedings." 1. As mentioned previously, by notice of motion filed 30 April 2024, the plaintiff sought the orders in consideration, being the grant of an extension of time to commence proceedings nunc pro tunc to the date of the filing of the statement of claim. 2. In an affidavit dated 30 April 2024 that was read on the application without objection, the plaintiff explained the delay in commencing proceedings as due to his determination to "soldier on" with his injury, which he attributed in part to an entrenched work culture that created the expectation of such a response to a workplace injury. An affidavit by the plaintiff's solicitor annexed reports as to the viability of the plaintiff's claim. Legislation 1. Section 151D(2) of the Act relevantly provides: "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." Consideration 1. Section 151D(2) of the Act applies to 'a person to whom compensation is payable under the Act'. I note that that condition is not in issue, and indeed the plaintiff has received compensation payments from the defendant. As to the circumstances in which a grant of leave is appropriate, in Gower v State of New South Wales [2018] NSWCA 132, Basten JA, at [4], identified three propositions that the plaintiff was required to establish in the circumstances of that application. They may be more broadly stated as follows: 1. that there is a sufficient and acceptable explanation for the delay; 2. that the plaintiff has "a reasonably arguable claim"; and 3. that a grant of leave would not cause the defendant prejudice, so as to render the trial unfair. [1] 1. In Ward v Les Russell & Son Pty Limited and Warkworth Mining Limited [2021] NSWSC 67, Bellew J at [79] expressed the relevant principles in relation to the grant of leave under s 151D(2) of the Act that arise from the authorities. The summary of principles encompassed the three propositions advanced by Basten JA above, although the principles were expressed in broader terms. As to the onus of proof, Harrison AsJ in Muller v Mt Arthur Coal Pty Limited [2024] NSWSC 677 noted succinctly, at [196]: "The plaintiff bears the onus of proving that it is fair and just for a limitation period to be extended, and the defendant bears the onus of proving actual prejudice 'beyond that presumed to occur by reason of effluxion of time alone'." 1. My consideration may be briefly expressed. As to the first issue identified by Basten JA, the plaintiff has adequately explained the delay. Second, his explanation of the accident, together with the reports annexed to his solicitor's affidavit, establish that his claim is reasonably arguable. Finally, the fact that the defendant does not contest the orders sought is an eloquent indication that it accepts that prejudice would not be occasioned to its case such that it would constitute unfairness. 2. Accordingly, in accordance with the short minutes, I make the following orders: (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. ********** Endnote 1. See also White JA at [190] and Simpson AJA at [217], accepting the statement of principle by the judge at first instance and her Honour's subsequent approach, which accorded with the three propositions identified by Basten JA 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: 09 August 2024