Gardner v Roche Highwall Mining [2001] NSWSC 1148

New South Wales Supreme Court

CITATION : Gardner v Roche Highwall Mining [2001] NSWSC 1148 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 11407 of 2001 HEARING DATE(S) : 10 December 2001 JUDGMENT DATE : 13 December 2001

Andrew Charles Gardner (Plaintiff) PARTIES : v Roche Highwall Mining Pty Limited (Defendant) JUDGMENT OF : Master Malpass

COUNSEL : Mr G M Gregg (Plaintiff) Mr B G Smith (Defendant) SOLICITORS : Barry F Cosier & Associates (Plaintiff) Sparke Helmore (Defendant) CATCHWORDS : Leave to commence proceedings - deficiency in explanation for delay. LEGISLATION CITED : Limitation Act 1969. Workers Compensation Act 1987, s 151D (2). CASES CITED : N/A DECISION : See Paragraph 16.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER MALPASS THURSDAY 13 DECEMBER 2001 11407 of 2001 Andrew Charles Gardner v Roche Highwall Mining Pty Limited JUDGMENT 1 MASTER: The plaintiff suffered a back injury in a work incident on 12 January 1998. He was then working at the Ulan open cut coalmine in the employment of the defendant. 2 These proceedings were brought by Summons filed on 14 may 2001. Curiously, the Summons seeks relief under the Limitation Act 1969. 3 The matter came on for hearing on 10 December 2001. The plaintiff now seeks leave pursuant to s 151D (2) of the Workers Compensation Act 1987. 4 The plaintiff has sworn an affidavit. He has been briefly cross-examined. The defendant has not adduced any evidence. 5 The court has a discretionary power to grant the relief sought. The power is exercised having regard to the relevant circumstances of the particular case before the court and so that justice is best served between the parties. The onus rests with the party seeking relief. 6 The relevant considerations are usually delay, explanation for delay, prejudice and the viability of the plaintiff's cause of action. 7 In this case, the defendant does not take any issue with the viability of the plaintiff's cause of action. It is not said that the defendant will suffer prejudice if relief is granted. The issue raised is the sufficiency of the explanation offered for the delay. The delay itself is relatively short. 8 The limitation period expired on 12 January 2001. These proceedings have been brought about four months subsequent to the expiry of the limitation period. 9 Prior to the expiry of the limitation period, the plaintiff had commenced workers compensation proceedings (20 March 2000) and had seen Professor Ryan (on 1 December 2000). 10 The defendant makes the point that the solicitor has not sworn an affidavit. It is usually advisable in these cases for that course to be taken. The failure to do so usually leaves some deficiency in what is put forward to explain delay. Such is the position in this case. 11 The affidavit does not address the matter of the plaintiff's knowledge of his legal entitlements. His present solicitor has been acting since 1998. Accordingly, in the circumstances, it seems to me that the court should approach the matter on the basis that he was apprised of the position prior to the expiry of the limitation period. 12 The plaintiff saw his specialist Dr Deveridge on 2 March 2001. A copy of his report dated 7 March 2001 is in evidence (as is a report from Professor Ryan). Largely, it is the report from Dr Deveridge which is relied on to explain why this application is now brought out of time. 13 Despite what the plaintiff had been told by Professor Ryan, the report from Dr Deveridge paints a picture that is worse. It provides an opinion that the plaintiff is considerably more disabled than when he had been previously assessed by Dr Deveridge. These proceedings were brought about two months after the obtaining of that report. 14 In my view, the prospects of the success of this application would have been enhanced by an affidavit from the solicitor. As I have said, its absence means that there is some deficiency in the available material to explain delay. The absence of such an affidavit has brought about a need for reflection in dealing with the question of the granting of the relief sought. 15 However, having regard to all of the circumstances of this particular case, I have come to the view that the onus has just been discharged. 16 Leave is granted pursuant to s 151D (2). The plaintiff is to have liberty to file a Statement of Claim in these proceedings on or before 2 January 2002. The costs of the application are to be costs in the cause. The exhibit may be returned. **********