Case v Colchester GR Pty Limited [2003] NSWSC 153

New South Wales Supreme Court

CITATION : Case v Colchester GR Pty Limited [2003] NSWSC 153 revised - 4/04/2003 HEARING DATE(S) : 14/3/03 JUDGMENT DATE : 20 March 2003

JUDGMENT OF : Shaw J DECISION : 1) Appeal allowed; 2) Set aside the decision of Master Harrison on 27 June 2001; 3) Grant leave to the applicant to commence proceedings; 4) Subject to further argument, costs in the application to be costs in the cause

CATCHWORDS : Appeal - Evidence -reliability LEGISLATION CITED : Workers Compensation Act 1987 Case v Colchester GR Pty Limited [2001] NSWSC 528; House v The King (1936) 55 CLR 499; CASES CITED : Ipex Graphics Pty Ltd v Elliott (2002) 54 NSWLR 207; Parsons v Doukas (2001) 52 NSWLR 162; Salido v Nominal Defendant (1993) 32 NSWLR 524; PARTIES : Maryanne Case - Applicant Colchester GR Pty Limited - Respondent FILE NUMBER(S) : SC 10296 of 2001 COUNSEL : Mr J Young -Applicant Mr D Brogan -Respondent SOLICITORS : Marsdens Solicitors -Applicant Bartier Perry - Respondent

LOWER COURT Supreme Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Master Harrison JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Shaw J

20 March 2003

10296 of 2001 Maryanne Case (Applicant)

v

Colchester GR Pty Limited (Respondent)

JUDGMENT 1 Shaw J: This is an appeal against a decision of Master Harrison to decline leave to the plaintiff to commence court proceedings out of time in respect of injuries suffered as a result of an accident which occurred on 15 November 1997: [2001] NSWSC 528. 2 The application for leave to file a statement of claim outside of the ordinary limitation period of three years is brought under s 151D of the Workers Compensation Act 1987 (NSW). Section 151D of that Act requires that common law proceedings be brought within three years of the accident, and so proceedings should have been commenced before 15 November 2001. Section 151D of the Act states: 151D. Time limit for commencement of court proceedings against employer for damages (1) (Repealed) (2) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned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. (3) The Limitation Act 1969 does not apply to or in respect of court proceedings to which this section applies. (4) This section does not apply to the commencement of court proceedings in respect of a claim within the meaning of Part 5 of the Motor Accidents Act 1988 or Chapter 5 of the Motor Accidents Compensation Act 1999 . 3 In the present case the proceedings were commenced on 2 February 2002 and the applicant was therefore eleven weeks out of time. Despite this relatively modest disparity between the limitation period and the time at which proceedings were commenced, the Master, in the exercise of her discretion, thought that there should not be leave granted to commence the proceedings beyond the limitation period.