Supreme Court New South Wales Medium Neutral Citation: Barrett v ITW Australia Pty Ltd [2016] NSWSC 1325 Hearing dates: 19 September 2016 Date of orders: 20 September 2016 Decision date: 20 September 2016 Jurisdiction: Common Law Before: Harrison J Decision: 1. Grant leave to the plaintiff pursuant to s 151D(2) of the Workers Compensation Act 1987 to commence these proceedings. 2. Order that the costs of this application be the plaintiff's costs in the proceedings. Catchwords: LIMITATION OF ACTION – leave to commence proceedings – s 151D(2) Workers Compensation Act 1987 – whether leave should be granted – where no prejudice to defendant and where satisfactory explanation for delay COSTS – application for leave to commence proceedings – where application ultimately not opposed – where application necessary whatever defendant's attitude might be – plaintiff entitled to costs as part of costs if successful in proceedings Legislation Cited: Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998 Cases Cited: Itex Graphix Pty Ltd v Elliot (2002) 54 NSWLR 207; [2002] NSWCA 104 Category: Procedural and other rulings Parties: Ronald Charles Barrett (Plaintiff) ITW Australia Pty Ltd (Defendant) Representation: Counsel: B Kelleher (Plaintiff) S L Flett (Defendant) Solicitors: Burke & Mead Lawyers (Plaintiff) Hall & Wilcox (Defendant) File Number(s): 2016/89760 Publication restriction: Nil Judgment 1. HIS HONOUR: On 15 March 2010, Mr Barrett was injured in the course of his employment with ITW Australia Pty Ltd. He commenced a claim for workers compensation benefits with ITW's insurer shortly thereafter and has been in receipt of weekly wage benefits and reimbursement for his associated medical expenses since that time. 2. On 23 March 2016, Mr Barrett filed his statement of claim commencing these proceedings. Paragraph 12 of the defence filed on 26 May 2016 by ITW pleaded that his proceedings were commenced out of time having regard to the terms of s 151D of the Workers Compensation Act 1987 and that he was therefore prevented from proceeding with this claim. 3. By notice of motion filed on 24 August 2016, Mr Barrett sought an order that he be granted leave to commence and to pursue these proceedings pursuant to s 151D(2) of the Act. That section provides relevantly as follows: "151D Time limit for commencement of court proceedings against employer for damages (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." 1. Mr Barrett's application is not now opposed, despite the terms of the defence to which I have referred. It is supported by Mr Barrett's affidavit sworn 15 September 2016 and two affidavits of his solicitor Emma Mead sworn 24 August 2016 and 15 September 2016 respectively. These affidavits were read without objection. No one was cross-examined. ITW did not tender any evidence on this application. 2. Mr Barrett has been the subject of a series of cascading assessments of whole person impairment since shortly following his accident. On 14 July 2011, he was assessed as having a five percent whole person impairment by reason of injuries to his knees. He made a claim for lump sum compensation which was accepted by ITW's insurer on 7 October 2011. By 6 July 2015, Mr Barrett had been assessed as suffering from a 29 percent whole person impairment as the result of workplace injuries arising from this accident. 3. On 14 September 2015, ITW was informed by letter of that date that Mr Barrett proposed to pursue a claim for work injury damages arising out of ITW's alleged negligence and breach of statutory duty. On 21 December 2015, Matthew Soliman, a case manager employed by ITW's insurer, wrote directly to Mr Barrett indicating, among other things, that Mr Soliman was now Mr Barrett's "new case manager" and that he would "manage [Mr Barrett's] claim until the claim for work injury damages/common law is resolved". 4. The circumstances in which leave should be granted were authoritatively considered by Ipp AJA in Itex Graphix Pty Ltd v Elliot (2002) 54 NSWLR 207; [2002] NSWCA 104 at [78] as follows: "[78] McHugh J (at 552) [in Brisbane South Regional Health Authority v Taylor] identified four broad rationales for the enactment of limitation periods, generally. These were: (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." 1. Sheller JA had earlier expressed his agreement with this approach at [3]-[4] of the reasons for judgment in that case as follows: "[3] The cases have shown that particular circumstances may compel a refusal by the Court to extend time. An example is actual significant prejudice to the defendant brought about by the plaintiff's delay. But it is not correct to conclude that the absence of such prejudice compels an exercise of discretion in favour of the plaintiff. Ordinarily the potential plaintiff is required to demonstrate that circumstances warrant the Court's exercising its discretion to extend the time for commencing proceedings. The applicant bears that positive burden. In Salido v Nominal Defendant (1993) 32 NSWLR 524 at 530 Gleeson CJ said that the proper question for a judge to ask in dealing with an application for leave to proceed is whether it would be fair and just to grant leave. In Parsons v Doukas [2001] NSWCA 128 I said that where a long and unexplained delay had not resulted in significant prejudice to the potential defendant it might be that the discretion would properly be exercised in favour of the potential plaintiff but that the Court was in no sense bound so to exercise its discretion. The question was whether the delay had made the chances of a fair trial unlikely. [4] Ipp AJA has concluded that the appellant suffered no prejudice in consequence of the resultant delay but that the decision initially taken not to proceed at common law and allow the three year period under s151D(2) of the Workers Compensation Act to expire were taken quite deliberately on a fully informed basis. The respondent further delayed for a significant period before changing her mind. I entirely agree that this in itself is a potent circumstance which must be taken into account and will ordinarily weigh heavily against an applicant. If the discretion was to be exercised favourably to the respondent, she was bound to give some explanation both satisfactory and pertinent to a conclusion that justice would be best served by granting her application. I agree with Ipp AJA that this she failed to do. The learned judge who heard the application failed to give due weight to this consideration and erroneously concluded that the respondent's explanation for her conduct was reasonable. In consequence of this error his Honour's discretionary function miscarried and this Court must review it. For the reasons Ipp AJA has given I agree that in the circumstances the time for beginning the proceedings should not be extended." 1. Mr Barrett argued that no such considerations applied in the present case. 2. First, he has provided an explanation for the delay. He initially had no entitlement to sue having regard to the degree of whole person impairment as originally assessed. His condition thereafter progressively deteriorated despite a course of ongoing treatment. When Mr Barrett's treatment failed to have any significant beneficial effect, he immediately sought further legal advice. That was in 2014. 3. Secondly, and in a related sense, the delay in commencing these proceedings since then is attributable to the statutory process required to obtain a medical determination of whole person impairment greater than 15 percent. Such a determination is a precondition to the commencement of this litigation. Mr Barrett complied with all of the other statutory requirements that were necessary before proceedings could be commenced. He and his solicitor, as well as ITW and its insurer and lawyers, have attended to the statutory requirements promptly. 4. Thirdly, ITW and its insurer have suffered no actual prejudice. They have pointed to none. ITW and its insurer have been and continue to be provided on a regular basis with all contemporaneous medical records relating to Mr Barrett's injuries and have been able to pursue their own independent inquiries and investigations into the circumstances of the accident. All relevant requests for particulars directed to Mr Barrett or his solicitor have been answered promptly and without complaint. 5. Finally, the delay in the commencement of the proceedings has not objectively prejudiced the prospect that the parties will be able to obtain a fair trial. Presumptive prejudice potentially emanating from the delay so far yields on closer inspection to the absence of any prejudice in fact. That is to be compared to the circumstances that indicate that Mr Barrett has sustained a severely debilitating and incapacitating injury, including a substantial associated reduction in his capacity to undertake any form of remunerative employment. 6. In my opinion, leave should be granted. 7. Mr Barrett asks for costs of the application. Costs are opposed by ITW, arguing that the costs of this application should abide the outcome in the proceedings. 8. By letter dated 4 July 2016, just short of six weeks following the filing of the defence in these proceedings, Mr Barrett's solicitor sought particulars of that defence. Paragraph 2 of the letter was in these terms: "2. With respect to paragraph 12 of the defence, the defendant alleges the plaintiff's claim is out of time pursuant to s 151D of the Workers Compensation Act 1987. The plaintiff was confirmed as satisfying the s 151H threshold under cover of Medical Assessment Certificate dated 9 July 2015, and WCC Certificate of Determination dated 13 August 2015. All relevant particulars of the plaintiff's work injury damages claim were provided on 14 September 2015, pursuant to s 282 of the Workplace Injury Management and Workers Compensation Act 1998. There has been no delay in progressing the matter to mediation, in accordance with the standard and mandatory claims procedure, and thereafter the commencement of court proceedings. In the circumstances, please: (a) provide particulars as to why and how the defendant alleges the plaintiff is out of time to bring his claim pursuant to s 151D of the 1987 Act; (b) please advise of all matters, facts and circumstances relied upon in support of the defendant's allegation with respect to s 151D, including evidence relied upon, to allow the plaintiff to know the allegation it [sic] has to meet. We advise that the plaintiff will not be in a position to respond to any allegation with respect to s 151D of the 1987 Act until such time as the above particulars are fully and appropriately responded to. Should the defendant continue to press the issue with respect to s 151D, and a notice of motion is required to be issued by the plaintiff, we confirm that the plaintiff intends to rely upon this letter in support of any application for costs of the motion and hearing (if necessary), on an indemnity basis." 1. Any response to that letter is not in evidence before me. 2. Unless Mr Barrett had been prepared to run the risk that leave would be granted at a final hearing of these proceedings, a notice of motion, or more particularly an interlocutory hearing of some sort to determine the leave issue, would always have been necessary. That is so notwithstanding paragraph 12 of the defence or any later concession by ITW that it did not oppose the grant of leave. That was the position before me despite the original form of the defence. 3. The only real costs issue seems to me to be the extent to which, if at all, Mr Barrett has incurred costs on the present application that would not have been generated if the defence did not contain paragraph 12 or its equivalent. The statutory requirement for Mr Barrett to secure a grant of leave is not the product of ITW's response to the claim. Success in the present application is in that sense not dissimilar in importance for Mr Barrett to success on the ultimate issues of liability in the proceedings. The present application is therefore but one step in the process between the commencement of the proceedings and the recovery of damages. ITW did not seek to obstruct that process. 4. In those circumstances I consider that Mr Barrett's entitlement to the costs of the application for leave should be rise and fall with his entitlement to costs in the proceedings as a whole. ITW did not argue that it would not be liable for the costs of this application if it eventually became liable for the costs of the proceedings. It did argue that it should not be liable for those costs standing alone. Mr Barrett should not in my opinion be found to have an independent entitlement to recover the costs of this application unless he also becomes entitled to an order for the costs of the proceedings generally. 5. It was contended by Mr Barrett that costs should follow the event and that I should not, as it were, otherwise order. In my opinion the "event" in that context is not the outcome of the present motion. The event for presently relevant purposes in my view should be the result of these proceedings on a final basis. Accordingly, the costs of the present application should follow that event. 6. My orders therefore are as follows: 1. Grant leave to the plaintiff pursuant to s 151D(2) of the Workers Compensation Act 1987 to commence these proceedings. 2. Order that the costs of this application be the plaintiff's costs in the proceedings. ********** 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: 20 September 2016