Benton v QBE Workers Compensation (NSW) Limited (ABN 83 564 379 108 004) [2013] NSWDC 107

District Court New South Wales

Medium Neutral Citation: Benton v QBE Workers Compensation (NSW) Limited (ABN 83 564 379 108 004) [2013] NSWDC 107 Hearing dates: 16 May 2013 Decision date: 11 July 2013 Before: Truss DCJ Decision: Notice of motion dismissed. Catchwords: Limitation; s 151D and 151H of Workers Compensation Act; stare decisis Legislation Cited: Workers Compensation Act 1987; Civil Procedure Act 2005. Cases Cited: Opoku v P & M Quality Smallgoods Pty Ltd (2012) NSW SC 478; Chief Executive Officer of Customs v Tony Longo Pty Limited NSWCA 147; Business World Computers Pty Limited v Australian Telecommunications Commission (1998) 82 ALR 499; Bone v Commissioner of Stamp Duties [1972] NSWLR 651; Parry v Masterpet Australia Pty Limited [2013] NSWDC 71. Category: Interlocutory applications Parties: Kenneth BENTON - Applicant/Plaintiff QBE Workers Compensation (NSW) Limited - Respondent/Defendant Representation: Mr J Reimer - Applicant/Plaintiff Mr J Catsanos - Respondent/Defendant File Number(s): 2012/257049

Judgment 1On 27 October 2003 the plaintiff sustained injury in the course of his employment with Restaco Pty Limited. As the company was de-registered on 14 August 2007 the proceedings have been brought against the defendant which was the relevant insurer. 2On 17 August 2012, almost 9 years after the date of injury, the plaintiff commenced these proceedings claiming work injury damages. In paragraph 8 of the defence filed 28 August 2012 the defendant pleaded that the claim was not maintainable by virtue of section 151D of the Workers Compensation Act 1987. On 18 January 2013 the plaintiff filed a notice of motion seeking leave to commence these proceedings. On 16 May 2013 paragraph 1 of the motion was amended to seek an order that paragraph 8 of the defence be struck out on the grounds that the proceedings were commenced in time and leave is therefore not required. 3The motion came on for hearing on 16 May 2013 and following oral argument was stood over part heard with an order for written submissions to which the court will refer later. The principal question to be determined is whether the court ought apply a decision of a single judge of the Supreme Court. 4The defendant's position is that the section 151D defence is well founded and, absent leave, the proceedings must be struck out because the wording of section 151D is clear and mandatory. 5Section 151D relevantly provides: