Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447 Hearing dates: 30 October 2014 Decision date: 18 December 2014 Before: McColl JA at [1]; Meagher JA at [67]; Barrett JA at [68] Decision: (1) Grant leave to appeal. (2) Appellant to file a notice of appeal in the form of the draft in the White Book within seven (7) days of delivery of these reasons. (3) Appeal allowed. (4) Order of Balla DCJ of 26 February 2014 dismissing the appellant's application for leave pursuant to s 151D of the Workers Compensation Act 1987 (NSW) to commence proceedings against the respondent set aside. (5) In lieu thereof, order that the appellant have leave to commence proceedings in the District Court against the respondent claiming damages in respect of her injury of 18 July 2007. (6) Costs of the extension application at first instance to be the appellant's costs in the proceedings commenced pursuant to such leave. (7) Respondent to pay the costs of the application for leave to appeal and of the appeal and to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: WORKERS COMPENSATION - s 151D Workers Compensation Act 1987 - leave to commence proceedings more than three years after injury - respondent accepted appellant demonstrated prima facie case on liability - respondent did not contend actual prejudice but relied on presumptive prejudice - appellant relied on explanation for delay given by solicitor on basis of information and belief - adequacy of explanation for delay - where primary judge rejected application - whether exercise of discretion miscarried