Gower v State of New South Wales [2017] NSWDC 60

District Court New South Wales

Medium Neutral Citation: Gower v State of New South Wales [2017] NSWDC 60 Hearing dates: 16 and 17 March 2017 Date of orders: 24 March 2017 Decision date: 24 March 2017 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Order 1 of the defendant's notice of motion filed 19 December 2016 granted. (2) The plaintiff's notice of motion filed on 30 January 2017 seeking an extension of time under s 151D Workers Compensation Act 1987 (NSW) dismissed. (3) These proceedings struck out and dismissed. (4) Plaintiff pay defendant's costs of the notices of motion and of the proceedings. (5) Liberty to apply in relation to costs. (6) Exhibits remain with the file until further order. Catchwords: WORKERS COMPENSATION – s 151D Workers Compensation Act 1987 (NSW) – leave to commence proceedings more than three years after injury – delay of nine and a half years – plaintiff consulted solicitors prior to expiry of limitation period and was informed of it – adequacy of explanation for delay by solicitor where plaintiff did not file an affidavit – whether plaintiff able to make out a prima facie case – defendant establishes evidence of actual prejudice in relation to liability, causation and quantum – extension of time refused Legislation Cited: Workers Compensation Act 1987 (NSW) s 151D Workplace Injury Management Act 1998 (NSW) ss 260, 281 Cases Cited: ASB-Tech Services Pty Ltd (In Liquidation) v Doeland [2003] NSWCA 167 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Commonwealth v Shaw [2006] NSWCA 209; [2006] 66 NSWLR 325 Commonwealth of Australia v Smith [2005] NSWCA 478 Gallagher Bassett Services NSW Pty Ltd v Murdock [2013] NSWCA 386 Health Care Complaints Commission v Street [2014] NSWCATOD 124 Holt v Wynter (2000) 49 NSWLR 128 Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447 Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 Khamiss v Sydney Roof Masters Pty Ltd [2017] NSWDC 48 Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 New South Wales v Jackson [2007] NSWCA 279; Queensland v J L Holdings (1996-1997) 189 CLR 146 Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 at [96]; South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477 State of New South Wales v Jackson [2008] HCATrans 193 Category: Principal judgment Parties: Plaintiff: Shane Gower Defendant: State of New South Wales Representation: Counsel: Plaintiff: Mr C Hart Defendant: Mr D Stanton