ABALink Early Intervention Services Pty Ltd v Danford

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

ABALink Early Intervention Services Pty Ltd v Danford [2019] NSWCA 97

Hearing dates:

1 May 2019

Decision date:

06 May 2019

Before:

Leeming JA; Payne JA

Decision:

Summons seeking leave to appeal filed on 16 January 2019 dismissed, with costs.

Catchwords:

APPEAL – leave – defendant sought leave to appeal from leave granted pursuant to Workers Compensation Act 1987 (NSW), s 151D – whether error of principle – whether material error in application of principle to facts – significance of arguments now sought to be advanced which were not put to primary judge – leave refused

Legislation Cited:

Workers Compensation Act 1987 (NSW), ss 151D, 151H

Cases Cited:

Age Co Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
Be Financial Pty Ltd v Das [2012] NSWCA 164
Choy v Tiaro Coal Ltd (in liq) [2018] NSWCA 205
Gower v New South Wales [2018] NSWCA 132
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206

Category:

Principal judgment

Parties:

ABAlink Early Intervention Services Pty Ltd (applicant)
Albert Billy Danford (respondent)

Representation:

Counsel:
P Morris SC (applicant)
BJ Gross QC (respondent)

 

Solicitors:

  Moray & Agnew (applicant)
PK Simpson & Co (respondent)

File Number(s):

2018/349622

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Civil

Citation:

None

Date of Decision:

19 October 2018

Before:

Norton SC DCJ

File Number(s):

2018/00059452

Judgment

1. THE COURT: The applicant ABALink Early Intervention Services Pty Ltd (Abalink) seeks leave to appeal from the interlocutory decision of the primary judge, granting leave for the respondent, Mr Albert Billy Danford, to commence proceedings seeking damages against Abalink, his former employer, more than three years after the date on which he claims he was injured.

2. Abalink is a labour hire company based in Sydney. It employed Mr Danford in 2006. It accepts, in paragraph 8 of its written submissions, that on 6 March 2006 Mr Danford was injured in the course of his employment in Brisbane, while he was sub-contracted to an elevator company, Otis Elevators. The workers compensation claim form lodged at the time states that the accident was reported to “Lead hand – Daryl Gilbert” and “Supervisor – Darren Hutchings”. Ms Christina Campbell, who was described as the “owner” of Abalink, made a statement which was before the primary judge containing the following:

“In March 2006 I received a call from Otis to inform me that Albert Danford had suffered an injury and was having some time off work was not fit to attend work and needed to be taken from site. [sic]

We completed forms for Workers Compensation and forwarded them to GIO. I had phone conversations with Albert regarding his welfare and ongoing medical treatment soon after the accident.

Albert reported to us that he was lifting a steel rail and twisted his back and injured his right shoulder when he…