Poletan v Nu Line Building Group Pty Ltd [2015] NSWDC 437

District Court New South Wales

Medium Neutral Citation: Poletan v Nu Line Building Group Pty Ltd [2015] NSWDC 437 Hearing dates: 9 October 2015 Date of orders: 09 October 2015 Decision date: 09 October 2015 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) That the plaintiff be granted leave under s 151D of the Workers Compensation Act 1987 nunc pro tunc to commence proceedings against the defendant by filing the statement of claim on 20 March 2015. (2) That the costs of and incidental to the notice of motion be costs in the cause. Catchwords: PROCEDURE – application for extension of time – limitation period – application for adjournment Legislation Cited: Workers Compensation Act 1987, s 151D Cases Cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 The Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 Category: Procedural and other rulings Parties: Borislav Poletan (plaintiff) Nu Line Building Group Pty Ltd ABN 23 103 990 978 (defendant) Representation: Counsel: Ms M Campbell (plaintiff) Mr S Flett (defendant)

Solicitors: Gordon Jankov (plaintiff) Hall & Wilcox Lawyers (defendant) File Number(s): 2015/84525 Publication restriction: None

Judgment 1. The plaintiff, Borislav Poletan, was injured in the workplace on 19 July 2010. He received significant injury to his left hip, lower back and left eye. He commenced proceedings for work injury damages on 10 March 2015 and, being outside the three-year limitation period, makes an application under s 151D of the Workers Compensation Act 1987 for leave to commence proceedings. 2. The evidence for Mr Poletan consisted of an affidavit from him and affidavits from his solicitor. Neither witness was cross-examined. There was no evidence for the defendant, Nu Line Building Group Pty Ltd, and the defendant frankly conceded that there was no real issue of delay or actual prejudice. The defendant in fact did not oppose the application but applied for it to be adjourned to the hearing when matters of presumptive prejudice might be more thoroughly examined. Mr Poletan opposes any adjournment of the motion. 3. Presumptive prejudice in this case seems likely to be limited. The period of delay is five years, not a large period, but also occurs in circumstances where a workers compensation claim was made after the work injury. Also, within the limitation period, Mr Poletan served notice of the claim for work injury damages on the defendant. 4. The delay by Mr Poletan in commencing proceedings is explained by the circumstance that initially Mr Poletan had some optimism that he would be able to return to work and his whole person impairment level was, within 18 months of the work injury, assessed (below the threshold) at 12%. However, his condition worsened and shortly before the expiration of the limitation period, he had separate surgeries on his back, his eye and his hip. After the limitation period expired, an agreement was reached about a level of whole person impairment of 28%, well above the threshold. 5. I was referred to a number of authorities, including a decision of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 and McColl JA in The Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347. In Taylor, McHugh J at 553 stated, "[T]he public interest requires that disputes be settled as quickly as possible". Of course, that is one of the reasons for a limitation period being imposed by statute, but it also has application to this particular dispute: should the question whether leave should be granted be determined now or later. 6. Costs are saved by determining disputes earlier. The parties are here and have argued the matter. To put off the question of leave until the trial would necessarily result in costs being incurred on both sides and time being wasted if Mr Poletan was ultimately unsuccessful on the leave question. Determination now removes the need for a further application before the trial judge in respect of an extension of time. 7. McColl JA in Rundle noted at [96] that, "For a trial to be fair, it need not be perfect or ideal" and that significant prejudice "means such prejudice as would make the chances of a fair trial unlikely". I am satisfied that a fair trial is not unlikely, particularly because early notice was given both by the workers compensation proceedings and by the notice of the claim within the limitation period. 8. Accordingly, in my view, this is an appropriate case for leave to be granted under s 151D of the Workers Compensation Act 1987. I propose to make an order in accordance with para 1 of the notice of motion. I also make order 3 of the notice of motion. 9. The orders of the Court therefore are: 1. That the plaintiff be granted leave under s 151D of the Workers Compensation Act 1987 nunc pro tunc to commence proceedings against the defendant by filing the statement of claim on 20 March 2015. 2. That the costs of and incidental to the notice of motion be costs in the cause.