Bright v State of New South Wales (No 2) [2017] NSWDC 260

District Court New South Wales

Medium Neutral Citation: Bright v State of New South Wales (No 2) [2017] NSWDC 260 Hearing dates: 14, 22 August 2017 (Lismore) Date of orders: 22 August 2017 Decision date: 22 August 2017 Jurisdiction: Civil Before: Neilson DCJ Decision: Application to tender evidence allowed Catchwords: CIVIL – LIMITATIONS – WORK INJURY DAMAGES CLAIM – ADMISSIBILITY OF EVIDENCE – Whether evidence sought to be adduced on application to extend the limitation period is "evidence" in proceedings for damages in respect of the injury concerned" Legislation Cited: Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998 Cases Cited: Lawlor v State of NSW [2014] NSWSC 1659 Category: Procedural and other rulings Parties: Amy Louise Bright (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: Mr P Doherty SC with Mr H Somerville (Plaintiff) Mr D Stanton (Defendant)

Solicitors: Bourke Love Lawyers (Plaintiff) SMK Lawyers (Defendant) File Number(s): 2017/141429 Publication restriction: Nil

Judgment 1. HIS HONOUR: The plaintiff seeks to tender an affidavit of Amy Bright, the plaintiff herself, sworn on 21 August 2017. Initially a general objection was taken to the affidavit but more recently the defendant limited the objection to paragraphs numbered 51 to 56, 80 to 82, 89 to 92, 98 to 107 and 120 to 159. The defendant objects to the tender because the defendant says that such a tender would infringe the provisions of s 318(1)(d) of the Workplace Injury Management and Workers Compensation Act 1998, to which I shall refer hereafter as the "1998 Act". The question which arises immediately is whether the evidence which the plaintiff seeks to adduce is evidence that is to be "Admitted in the proceedings". 2. The plaintiff has commenced an action for work injury damages against her deemed employer, the State of New South Wales. The plaintiff is a Senior Constable of Police. The defendant has pleaded a defence under s 151D of the Workers Compensation Act 1987, to which I shall refer hereafter as the "1987 Act". Section 151D(2) is in the following terms: "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 three 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." By motion on notice the plaintiff seeks nunc pro tunc relief under s 151D(2) of the 1987 Act. 1. The 1987 Act does not suggest that proceedings for the obtaining of leave are part of the "proceedings for damages in respect of the injury concerned". Section 315 of the 1998 Act provides in subs (1) that a claimant cannot commence "court proceedings" for the recovery of work injury damages unless the claimant has served a pre-filing statement (essentially a draft statement of claim) setting out such particulars of that claim and providing the evidence that the claimant will rely upon to establish that claim. The evidence which is required to be served is evidence to support the claim for work injury damages, not a claim for relief under the 1987 Act, where an employer has raised a defence under s 151D of the 1987 Act. 2. Section 316 of the 1998 Act requires a defendant within 28 days of the service of a pre-filing statement to respond to it by serving a pre-filing defence to the claim and serving the evidence that the defendant will rely upon to defend the claim made against it. There is a provision in s 316(1)(b) of the 1998 Act for the defendant to comply with the rules, but I have not been taken to any such rules. I assume they are rules made by the Workers Compensation Commission. 3. There is no provision in the 1998 Act that permits a plaintiff to serve upon the defendant a pre-filing reply, nor is any provision in the statute for the plaintiff to serve any evidence she may rely upon in reply to a defence raised by the defendant. Where a defendant raises a defence under a limitation provision, a plaintiff might, for example, raise an allegation in reply that the limitation period did not run for a specified period of time because the plaintiff was legally mentally incompetent and time did not run against him or her during that period, and, when that period is excluded, the limitation period had not expired. The 1998 Act does not turn its consideration to such events at all, perhaps because of a lack of full understanding of the process of a common law action. 4. Be that as it may, evidence to extend a limitation period is not necessarily evidence which would be led by either a plaintiff or a defendant in an action for damages. Such evidence may be completely irrelevant to a claim for damages for injury. For example, actions taken by solicitor to prepare a claim for an action for damages are not ordinarily admissible in the action for damages for the injury, because they are extraneous to it. 5. On my reading of s 151D of the 1987 Act and the relevant provisions of the 1998 Act, the evidence referrable to an extension of the limitation period, under s 151D of the 1997 Act is not evidence "in proceedings for damages in respect of the injury concerned," to use the terminology of the 1997 Act, or to the use the terminology of the 1998 Act, evidence to be "admitted in the proceedings," being the proceedings for a work injury damages claim. I am fortified in that view, because it is consistent with what fell from Hidden J in Lawlor v State of NSW [2014] NSWSC 1659 between [40] and [43] to which I was referred very properly by Mr Stanton, who was unsuccessful in the argument that he presented to Hidden J, the same argument, in essence he presents to me on this application. I therefore allow the tender of the affidavit of Amy Bright, 21 August 2017.