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Afarin v Excelior Pty Ltd

Afarin v Excelior Pty Ltd

Case [2013] NSWDC 65 20 May 2013

Limitation Periods

Leave to Sue

Costs

Workers Compensation Law

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District Court

New South Wales

Medium Neutral Citation: Afarin v Excelior Pty Ltd [2013] NSWDC 65
Hearing dates: 26 March 2013
Decision date: 20 May 2013
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
1. Leave granted under s 151D of the Workers Compensation Act 1987 to commence proceedings outside the period prescribed.
2. Costs of the application be costs in the proceedings.

Catchwords: WORKERS COMPENSATION - leave to commence proceedings outside limitation period - costs - ordinary rule
Legislation Cited: Civil Procedure Act 2005, s 56
Uniform Civil Procedure Rules 2005, r 42.1
Workers Compensation Act 1987, s 66, s 151D
Workplace Injury Management and Workers Compensation Act 1998, s 282
Cases Cited: ASB-Tech Services Pty Ltd (In Liquidation) v Doeland & Anor [2003] NSWCA 167
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Campbell v State of NSW [2002] NSWSC 230
Cavanagh v State of New South Wales [2008] NSWCA 350
Commonwealth of Australia v Lewis [2007] NSWCA 127
Commonwealth of Australia v Smith [2005] NSWCA 478
Fordham v Fordyce [2007] NSWCA 129
Holt v Wynter (2000) 49 NSWLR 128
Itek Graphix Pty Limited v Elliott [2002] NSWCA 104
Josef & Sons Contracting Pty Ltd v Mabbett [2007] NSWCA 237
Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116
Parsons v Doukas (2001) 52 NSWLR 162
Saad v J Robins & Sons Pty Limited [2003] NSWCA 87
Salido v Nominal Defendant (1993) 32 NSWLR 524
The Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347
Category: Interlocutory applications
Parties: Katrina Afarin (plaintiff)
Excelior Pty Ltd (defendant)
Representation: Mr B McManamey (plaintiff)
Mr H Halligan (defendant)
Ron Kramer Associates (plaintiff)
Edwards Michael Lawyers (defendant)

File Number(s): 2011/396601
Publication restriction: No

Judgment

(a) Background

Excelior Pty Ltd ("Excelior") employed Katrina Afarin as a store person. On 20 September 2005 Mrs Afarin was working in despatch, lifting boxes from a palette onto a conveyor line at the premises of Ceva Logistics (Australia) Pty Ltd ("TNT"). She would scan the box, affix a label and push the box along the line. That day she suffered a back injury when lifting a carton from the pallet.

Mrs Afarin reported the injury, remained off work for about three weeks and filled out a workers compensation form, where the injury was described as "lower back annular tear and low grade disc bulge at L5/S1" arising from "lifting HEAVY boxes from the pallet on the floor and placed them on the conveyor". When Mrs Afarin returned to work her place of work was changed to a more remote location. The lengthy drive aggravated her back pain, so she stopped work for Excelior and was unable to find a suitable job elsewhere. She stopped looking for work on about 29 October 2008 when her treating doctor certified she was unfit for work.

Since ceasing work Mrs Afarin has been receiving weekly payments of workers compensation, and has continued to provide medical certificates to the workers compensation insurer. At the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Afarin v Excelior Pty Ltd

Details

AGLC: Afarin v Excelior Pty Ltd [2013] NSWDC 65
Case: [2013] NSWDC 65
Decision Date: 20 May 2013

CaseChat Overview and Summary

The case of Afarin v Excelior Pty Ltd involved a dispute between the plaintiff, Afarin, and the defendant, Excelior Pty Ltd, concerning workers' compensation. Afarin sought leave to commence proceedings outside the limitation period as prescribed by law, which would typically bar such actions. The court was tasked with determining whether the plaintiff's circumstances warranted an exception to the standard limitation period and, if so, what the implications would be for costs.

The central legal issue before the court was whether Afarin's delay in filing the claim was excusable under the provisions of the Workers Compensation Act 1987. Specifically, the court had to consider whether the statutory criteria for granting leave to commence proceedings outside the limitation period were satisfied, and if so, what the appropriate cost implications of such a decision would be. The court also needed to weigh the equitable considerations of the case against the statutory framework governing limitation periods in workers' compensation claims.

In its reasoning, the court examined the evidence presented regarding Afarin's delay and found that the statutory criteria were indeed met. The court acknowledged that Afarin's delay was due to significant personal and health-related issues that impeded their ability to file the claim within the prescribed period. The court held that these circumstances were sufficient to justify an exception under section 151D of the Act. Additionally, the court ruled that the costs of the application should be treated as costs in the proceedings, aligning with the ordinary rule for such applications.

The court granted Afarin leave to commence proceedings outside the limitation period and ordered that the costs of the application be borne as costs in the proceedings. This decision allowed Afarin to pursue their workers' compensation claim despite the delay, subject to the terms outlined in the court's order.

Orders

Orders of the court

1. Leave granted under s 151D of the Workers Compensation Act 1987 to commence proceedings outside the period prescribed.

2. Costs of the application be costs in the proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Afarin v Excelior Pty Ltd [2013] NSWDC 65

Most Recent Citation

Parry v Masterpet Australia Pty Ltd [2013] NSWDC 71

Cases citing this decision · 8 of 8 shown

Bright v State of New South Wales
[2017] NSWDC 257 Para 113

…Relevant principles have been canvassed by my colleague Taylor SC DCJ in Afarin v Excelior Pty Ltd [2013] NSWDC 65 commencing at [26]. Commencing at [38], his Honour said this:…
Neil Bissett v State of New South Wales
[2017] NSWDC 12 Para 16

…The plaintiff relied on the decision of Judge Taylor SC in Afarin v Excelsior Pty Limited [2013] NSWDC 65 at [12] to [18] as setting out the correct principles in relation to the exercise of the court’s discretion. His Honour’s judgment included a reference to ASB-Tech Services Pty Limited (in liquidation) v Doela…
Parrish v Olympic Roadways Pty Ltd
[2015] NSWDC 157 Para 30

…Wynter (2000) 49 NSWLR 128, where he has, by a deliberate decision, allowed the limitation period to expire (see generally Afarin v Excelior Pty Ltd [2013] NSWDC 65 at [26] – [41], Ly v Mukdassi [2013] NSWDC 257 at [37] – [40]).…
Sweetman v Ritter (No 2)
[2014] NSWDC 112 Para 1

…entitled to costs. I considered the application of Holt v Wynter and rule 42.1 of the Uniform Civil Procedure Rules 2005 in Afarin v Excelior Pty Ltd [2013] NSWDC 65 at [26]-[41] where I decided that Holt v Wynter was still authoritative.…
Ortlipp v Employers Mutual NSW Limited as agent for the Workers Compensation Nominal Insurer
[2014] NSWDC 157 Para 1

…the potential relevance of an injury that worsened over time (see Klimovska v George Weston Foods Limited [2012] NSWDC 246; Afarin v Excelior Pty Ltd [2013] NSWDC 65).…
Feltham v Workers Compensation Nominal Insurer
[2013] NSWDC 189 Para 1

…Counsel for the plaintiff then referred me to the decision of my colleague Taylor J in Afarin v Excelior Pty Limited [2013] NSWDC 65. In that case the plaintiff had suffered a back injury lifting a carton from a pallet on 20 September 2005. The parties in that case had agreed on 22 percent WPI in July 2011 and pro…
Ly v Mukdassi
[2013] NSWDC 257 Para 1

…I considered the application of Holt v Wynter and rule 42.1 of the Uniform Civil Procedure Rules 2005 in Afarin v Excelior Pty Ltd [2013] NSWDC 65 at [26]-[41]. In the circumstances, it seems to me the proper order should be that the plaintiff's costs of the application be the plaintiff's costs in the proceedings:…
Parry v Masterpet Australia Pty Ltd
[2013] NSWDC 71 Para 1

…The second is Afarin v Excelior Pty Ltd [2013] NSWDC 65. Taylor SC DCJ determined the relevant principles on the basis of Itek Graphix Pty Ltd v Elliott, supra , holding that the limitation period had expired in 2008 (at [20]); the determination that the plaintiff's injuries exceeded 15% was not made until Novembe…

View all 8 citing cases →

Cases cited in this decision · 16 of 16 shown

Cavanagh v State of New South Wales
[2008] NSWCA 350 Para 1

…order a successful applicant for an extension of time to pay the costs " ([94], see also [98] and [99]). See also Cavanagh v State of New South Wales [2008] NSWCA 350 at [38], [41] and [42].…
The Salvation Army (South Australia Property Trust) v Rundle
[2008] NSWCA 347 Para 1

…In The Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 costs were awarded to a plaintiff in an application for extension of time for a claim alleging sexual abuse while in the defendant's care many years earlier. At [111] McColl JA (with whom Bell JA agreed) held that Holt v Wynter and Smi…
Josef & Sons Contracting Pty Limited v Sidney Mabbett bhnf Noelene Apiata
[2007] NSWCA 237 Para 1

…e general rule in Uniform Civil Procedure Rule 42.1. In the circumstances of this application, I agree. In Josef & Sons Contracting Pty Ltd v Mabbett [2007] NSWCA 237 at [6], the Court of Appeal unanimously rejected a challenge to an order by the trial judge that, although the defendant's opposition was not unreaso…
Commonwealth of Australia v Lewis
[2007] NSWCA 127 Para 1

…In Commonwealth of Australia v Lewis [2007] NSWCA 127, the Court of Appeal unanimously endorsed the ordinary rule in Holt v Wynter , and many have even gone further, stating " in the ordinary course, a court would order a successful applicant for an extension of time to pay the costs " ([94], see also [98] and [99]…
Fordham v Fordyce
[2007] NSWCA 129 Para 1

…This principle has been questioned in some more recent cases. In Fordham v Fordyce [2007] NSWCA 129 at [50], Young CJ in Eq doubted whether there was an " overarching principle " that " where a person seeks an indulgence of a court, that person should pay the opponent's reasonable costs unless the latter was based…
Commonwealth of Australia v Smith
[2005] NSWCA 478 Para 1

…In Commonwealth of Australia v Smith [2005] NSWCA 478 the Court of Appeal considered an order for costs made against the Commonwealth in unsuccessfully opposing an extension of time by a plaintiff who sued for damages for psychological injuries arising from the collision between HMAS Melbourne and HMAS Voyager on 1…
ASB-Tech Services Pty Ltd (In Liquidation) v Doeland & Anor
[2003] NSWCA 167 Para 1

…In ASB-Tech Services Pty Ltd (In Liquidation) v Doeland & Anor [2003] NSWCA 167, Hodgson JA (at [30]-[33]) emphasised the need for the applicant to provide an explanation for the delay including, in an appropriate case, evidence whether by documents or otherwise from the plaintiff's solicitor.…
Saad v J Robins & Sons Pty Limited
[2003] NSWCA 87 Para 1

…In Saad v J Robins & Sons Pty Limited [2003] NSWCA 87, Santow JA, with whom Mason P and Hodgson JA agreed, stated (at [60]):…
Campbell v State of NSW
[2002] NSWSC 230 Para 1

…al endorsed this principle in Holt v Wynter (2000) 49 NSWLR 128 at [121] (see also [109], [110] and [123]). It was adopted in Campbell v State of NSW [2002] NSWSC 230.…
Itek Graphix Pty Ltd v Elliott
[2002] NSWCA 104 Para 1

…However, in Itek Graphix Pty Limited v Elliott [2002] NSWCA 104 the Court of Appeal (per Ipp AJA, with whom Spigelman CJ and Sheller JA agreed) determined that those remarks were not intended to be applicable to a case involving a lack of diligence on the part of an application for leave (at [55]) nor, it seems, to…
Nowlan v Marson Transport Pty Ltd
[2001] NSWCA 346

…129 Holt v Wynter (2000) 49 NSWLR 128 Itek Graphix Pty Limited v Elliott [2002] NSWCA 104 Josef & Sons Contracting Pty Ltd v Mabbett [2007] NSWCA 237 Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 Parsons v Doukas (2001) 52 NSWLR 162 Saad v J Robins & Sons Pty Limited [2003] NSWCA 87 Salido v Nominal Defendant (1993) 32 NSWLR 524 T…
Micallef v ICI Australia Operations Pty Ltd
[2001] NSWCA 274

…y judge erred in the exercise of his discretion so as to warrant the interference of an appellate court ( Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274; House v R (above); Lovell v Lovell (1950) 81 CLR 513 at 518-519 and 532-533).…
Parsons v Doukas
[2001] NSWCA 128

…t [2002] NSWCA 104 Josef & Sons Contracting Pty Ltd v Mabbett [2007] NSWCA 237 Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 Parsons v Doukas (2001) 52 NSWLR 162 Saad v J Robins & Sons Pty Limited [2003] NSWCA 87 Salido v Nominal Defendant (1993) 32 NSWLR 524 The Salvation Army (South Australia Property Trust)…
Holt v Wynter
[2000] NSWCA 143 Para 1

…or the importance of an adequate explanation for the delay: see Gleeson CJ in Salido v Nominal Defendant (1993) 32 NSWLR 524 at 530. In Holt v Wynter (2000) 49 NSWLR 128 a five member bench of the Court of Appeal applied the test espoused by Toohey and Gaudron JJ in Brisbane South Regional Health Authority v Taylor (1…
Brisbane South Regional Health Authority v Taylor
[1996] HCA 25 Para 1

…28 a five member bench of the Court of Appeal applied the test espoused by Toohey and Gaudron JJ in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 550:…
Lovell v Lovell
[1950] HCA 52

…to warrant the interference of an appellate court ( Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274; House v R (above); Lovell v Lovell (1950) 81 CLR 513 at 518-519 and 532-533).…

Legislation cited in this decision · 4

Civil Procedure Act 2005 (NSW)
56 2 mentions (from Para 1)
Workers Compensation Act 1987 (NSW)
66 2 mentions (from Para 1)
Uniform Civil Procedure Rules 2005 (NSW)
42.1 1 mention
Workplace Injury Management and Workers Compensation Act 1998 (NSW)
282 1 mention

Medium Neutral Citation:	Afarin v Excelior Pty Ltd [2013] NSWDC 65
Hearing dates:	26 March 2013
Decision date:	20 May 2013
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	1. Leave granted under s 151D of the Workers Compensation Act 1987 to commence proceedings outside the period prescribed. 2. Costs of the application be costs in the proceedings.
Catchwords:	WORKERS COMPENSATION - leave to commence proceedings outside limitation period - costs - ordinary rule
Legislation Cited:	Civil Procedure Act 2005, s 56 Uniform Civil Procedure Rules 2005, r 42.1 Workers Compensation Act 1987, s 66, s 151D Workplace Injury Management and Workers Compensation Act 1998, s 282
Cases Cited:	ASB-Tech Services Pty Ltd (In Liquidation) v Doeland & Anor [2003] NSWCA 167 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Campbell v State of NSW [2002] NSWSC 230 Cavanagh v State of New South Wales [2008] NSWCA 350 Commonwealth of Australia v Lewis [2007] NSWCA 127 Commonwealth of Australia v Smith [2005] NSWCA 478 Fordham v Fordyce [2007] NSWCA 129 Holt v Wynter (2000) 49 NSWLR 128 Itek Graphix Pty Limited v Elliott [2002] NSWCA 104 Josef & Sons Contracting Pty Ltd v Mabbett [2007] NSWCA 237 Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 Parsons v Doukas (2001) 52 NSWLR 162 Saad v J Robins & Sons Pty Limited [2003] NSWCA 87 Salido v Nominal Defendant (1993) 32 NSWLR 524 The Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347
Category:	Interlocutory applications
Parties:	Katrina Afarin (plaintiff) Excelior Pty Ltd (defendant)
Representation:	Mr B McManamey (plaintiff) Mr H Halligan (defendant) Ron Kramer Associates (plaintiff) Edwards Michael Lawyers (defendant)
File Number(s):	2011/396601
Publication restriction:	No