Supreme Court New South Wales Medium Neutral Citation: McMartin v Hurlcon Manufacturing & Sales Pty Limited [2014] NSWSC 1812 Hearing dates: 17 December 2014 Decision date: 18 December 2014 Jurisdiction: Common Law Before: Schmidt J Decision: The plaintiff is granted leave nunc pro tunc to commence these proceedings against the third defendant on 9 October 2012. Catchwords: PROCEDURE - notice of motion - leave sought to maintain proceedings pursuant to s 151D of Workers Compensation Act 1987 (NSW) - leave not opposed - order made Legislation Cited: Limitation Act 1969 (NSW) Workers Compensation Act 1987 (NSW) Cases Cited: Itek Graphix Pty Ltd v Elliott [2002[ NSWCA 104; 54 NSWLR 207 Saad v J Robins & Sons Pty Limited [2003] NSWCA 87 South Brisbane Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541 Category: Procedural and other rulings Parties: Robert Francis McMartin (Plaintiff) Hurlcon Manufacturing & Sales Pty Limited ACN 007 284 504 (First Defendant) Catalyst Recruitment Systems Pty Ltd ACN 050 243 251 (Second Defendant) The Workers Compensation Nominal Insurer (Third Defendant) Representation: Counsel: Mr J Reimer (Plaintiff) Solicitors: Brydens Compensation Lawyers (Plaintiff) Mr D Greenhalgh, Bartier Perry (First Defendant) Dr T Channon, Hicksons (Second Defendant) Ms C Edwards, Turks Legal (Third Defendant) File Number(s): 2007/295440 Publication restriction: None Judgment 1By motion filed in November 2014 the plaintiff, Mr McMartin, sought orders under s 151D of the Workers Compensation Act 1987 (NSW), giving him leave to maintain these proceedings. The application was supported by affidavits sworn by Mr McMartin and his solicitor Ms Nikolovski. 2Mr McMartin was seriously injured in an accident at work in December 2004, when he fell from a forklift. He is receiving statutory benefits under the Act, as a result. The statutory limitation period provided by s 151D(2) of the Act to commence these proceedings against his employer, expired on 23 December 2007. The proceedings were commenced against the first defendant on 10 December 2007 in the District Court. The proceedings transferred to this Court in 2012. The second defendant was joined on 8 September 2008. At that stage, Mr McMartin's whole person impairment had still not been determined, given his condition and the treatment he was still receiving. 3Separate proceedings commenced against the third defendant, Mr McMartin's employer, in July 2012 were discontinued in October 2012, when it was joined as third defendant to these proceedings. The employer relies on s 151D as part of its defence. Sub-section 151D(3) provides that the Limitation Act 1969 (NSW) does not apply in respect of proceedings such as this. It follows, amongst other things, that any disability suffered by Mr McMartin did not, of itself, suspend the running of the limitation period. 4Section 52 of the Limitation Act otherwise suspends the running of a limitation period where a plaintiff "is under a disability", which is defined in s 11(3)(b) of the Act, relevantly, as arising "while the person is, for a continuous period of twenty-eight days or upwards, incapable of, or substantially impeded in, the management of his or her own affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of ... any disease or impairment of his or her physical or mental condition, ..." 5There is no question here that the proceedings were commenced within time, so far as the first two defendants are concerned. 6In this case there was at the hearing of the motion finally no objection to granting of the leave sought by Mr McMartin under s 151D. Given that no prejudice was claimed to have flowed from the leave which he sought, I concluded that justice demanded that it be granted. These are the reasons for the orders which I, accordingly, made at the hearing of the motion. 7Whether a discretion under s 151D should be exercised must be approached in the way discussed by Ipp AJA's in Itek Graphix Pty Ltd v Elliott [2002[ NSWCA 104; 54 NSWLR 207: "[87] In my opinion, in limitation legislation such as s151D(2) of the Workers Compensation Act, where a broad discretion is conferred to grant leave to sue after expiry of the limitation period, the general question that has to be asked is what is fair and just (per Gleeson CJ in Salido). Or what does the justice of the case require (per McHugh J in South Brisbane Regional Health Authority [v Taylor (1996) 186 CLR 541]). In answering such a question the justice of the case must be evaluated by reference to the rationales of the limitation period that has barred the action, including the four rationales to which McHugh J refers." 8Those rationales, identified by McHugh J in South Brisbane Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541 at 552 are: (a) as time goes by relevant evidence is likely to be lost; (b) it is oppressive to a defendant to allow an action to be brought long after the circumstances that gave rise to it have passed; (c) it is desirable for people in the community to be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Many in the community have a significant interest in knowing that they have no liabilities beyond a definite period; (d) the public interest requires that disputes be settled as quickly as possible." 9In this case it was relevant that while the proceedings against the employer were not commenced until 2012, a claim for permanent impairment was served on the employer and insurer in December 2009. It was amended in February 2011, after which the insurer sought further information in August 2011. An application to resolve a dispute was lodged with the Workers Compensation Commission and served on the employer and its insurer. A workers compensation medical assessment certificate was issued in November 2011, assessing Mr McMartin to have suffered a 19% whole person impairment. In December 2011, a s 282 work injury damages claim was served on the employer. A pre-filing statement was executed and served in February 2012. An application for mediation was filed in March 2012. The matter was not resolved at the resulting May 2012 mediation. It was not until October 2012 that proceedings were commenced against the employer. 10In Saad v J Robins & Sons Pty Limited [2003] NSWCA 87 leave under s 151D was granted, Santow JA observing: "29 It is convenient to start with the guidelines for the exercise of such a discretion in the analogous context of s52(4) of the Motor Accidents Act 1988 (NSW). These were enunciated by Gleeson CJ in Salido v Nominal Defendant (1993) 32 NSWLR 524 at 532 which can be read substituting for the references to s52(4) section 151D: "To take up the words of Glass JA in Mc Gee v Yeomans, it is not possible by judicial decision to establish in advance categories of case in which it would be fair and just to grant leave to commence proceedings out of time under s52(4). However the following guidelines may be of assistance in obtaining consistency of decision-making: 1. Section 52(4) confers a discretion which is to be exercised judicially, in a manner that furthers the purposes of the statutory context in which it appears. The immediate purpose, as with any limitation period, is to protect defendants against the injustice of stale claims; the statute is also aimed at promoting forensic diligence. 2. Bearing in mind those statutory purposes, the question is whether, in the circumstances of each individual case, the applicant for leave has demonstrated that it is fair and just that leave should be granted. 3. The diligence, or lack of diligence, shown by a plaintiff or a plaintiff's representatives, in ascertaining and asserting his or her rights will ordinarily be a material factor, as will the extent of the relevant delay, and the reason for it. 4. The nature and extent of any forensic disadvantage to a defendant resulting from a plaintiff's delay will also be material. The effect, if any, of the delay upon the defendant's ability to defend an action is a matter to be taken into account, and may in some cases be of decisive importance. 5. Leave under s52(4) may be refused if it would be plainly futile to grant it, and in that connection an applicant's willingness and ability to give a full and satisfactory explanation of any delays in reporting to police, notifying claims and commencing proceedings will be material." 30 To those guidelines should be added what was said by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 where these propositions emerge: (i) it is for the respondent to place in evidence sufficient facts that lead the court to the view that actual prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice (per Toohey J and Gummow J at 547); (ii) whether or not an extension of time is prima facie prejudicial to the potential defendant (McHugh J and Dawson J suggesting it was and Toohey J and Gummow J suggesting otherwise), "the real question is whether the delay has made the chances of a fair trial unlikely ... if it has not there is no reason why the discretion should not be exercised in favour of the respondent" (per Toohey and Gummow JJ at 550); (iii) "... when actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice" (per McHugh J at 555); 31 In Halt v Wynter (2000) 49 NSWLR 128 the majority (Meagher JA, Handley JA, Sheller JA and Brownie AJA) concluded that the effect of Brisbane South Regional Health Authority v Taylor was therefore that an application for an extension of time under limitation legislation (including s52(4) of the Motor Accidents Act 1988) should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant. 32 Finally, the judgment of Ipp AJA in the Court of Appeal decision in Itek Graphix Pty Ltd v Elliott (2001) 54 NSWLR 207 adds a further important qualification. It is that where there is a broad discretion to grant leave and the applicant, having made a deliberate decision to allow the statutory period to expire, fails to give a satisfactory explanation for such conduct, the application ought not to be granted, even if the respondent would suffer no prejudice by the delay; see Ipp AJA at 226. Nonetheless that court again affirmed that the general question to be asked is what is fair and just, or what does the justice of the case require (Ipp AJA at 224). The recent Court of Appeal case, Scaltrito v NRMA Insurance Ltd [2003] NSWCA 63 reaffirmed the appropriateness of such an approach. 11Santow JA there also observed at [34] - [35]: "34 Thus in the present case, the Respondent points to no specific prejudice were the relevant leave granted, but opposes the granting of that leave. It claims the presumptive or general prejudice inherent in a delay of eleven years. There is no suggestion that a particular witness is unavailable or that there is a particular difficulty in proving some crucial matter of defence. Indeed, here, the Appellant's delay in making any election at all for some six years after the injury works to some extent in the Appellant's favour. That is because it is impossible to assume that a diligent defendant, faced with the possibility before any election is made of a common law action in damages, would not, at least during the first three years before the limitation period expired, make some preparation to defend such a claim against the possibility that it would be brought. 35 Though it be the case that general or presumptive prejudice is not an automatic bar in the absence of demonstrated significant prejudice, the onus remains upon the Appellant to show that it is fair and just that an extension be granted, and this generally requires at least an adequate explanation of the delay in commencing common law proceedings. 12In this case leave was finally not opposed and no prejudice or difficulty flowing from the grant of leave was raised by the employer. In all these circumstances, in the result I was satisfied that there was no question that justice demanded, that the leave which Mr McMartin sought be granted. Orders 13The plaintiff is granted leave nunc pro tunc to commence these proceedings against the third defendant on 9 October 2012. ********** 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: 19 December 2014