Aljorani v Worker's Compensation Nominal Insurer

[2025] NSWDC 347

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Aljorani v Worker’s Compensation Nominal Insurer [2025] NSWDC 347

Hearing dates:

20 August 2025

Date of orders:

20 August 2025

Decision date:

20 August 2025

Jurisdiction:

Civil

Before:

Newlinds SC DCJ

Decision:

(1) Order Nunc Pro Tunc that the Plaintiff be granted leave to commence proceedings against the Defendant pursuant to section 151D(2) of the Workers Compensation Act 1987.

(2)   The costs of this Motion are to be the Plaintiff’s costs in the cause.

Catchwords:

WORKERS COMPENSATION — Common law remedies — Discretion to grant leave to commence proceedings out of time for the purpose of Workers Compensation Act 1987 (NSW), s 151D — Relevant matters to be considered in context of broad discretionary power — Explanation for delay — Strength of proposed case — Detriment to Defendant — Leave granted

Legislation Cited:

Workers Compensation Act 1987 (NSW) s 151D; s 151DA; s 151H

Cases Cited:

Brisbane South Regional Health Authority v Taylor (1996) 168 CLR 541

Gower v State of New South Wales [2018] NSWCA 132

Holt v Wynter [2000] NSWCA 143; 49 NSWLR 128

Howley v Principal Health Care Finance Pty Ltd [2014] NSWCA 447

Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207

Prince Alfred College Incorporated v ADC (2016) 258 CLR 134

Salvation Army v Rundle [2008] NSWCA 347

Category:

Procedural rulings

Parties:

Mohammed Faleh Sayah Aljorani (Plaintiff/Applicant)
Worker’s Compensation Nominal Insurer (Defendant/Respondent)

Representation:

Counsel:
N Ghabar (Plaintiff/Applicant)
B Jones (Defendant/Respondent)

Solicitors:
Turner Freeman Lawyers (Plaintiff/Applicant)
Hall & Wilcox Lawyers (Defendant/Respondent)

File Number(s):

2025/35761

Publication restriction:

Nil

JUDGMENT; ex tempore

Introduction

1. These proceedings for damages were commenced by the Plaintiff in this Court in January 2025, arising out of an alleged incident in September 2014. They are a claim for what are known as work injury damages and relate to an alleged injury sustained by the Plaintiff whilst he was allegedly employed by Helix Corporation Pty Ltd, a company that was then controlled by a man called Tony Estefan. The limitation period of 3 years prescribed by s 151D of the Workers Compensation Act 1987 (NSW) (“Workers Compensation Act”) expired in September 2017. The Plaintiff applies to extend that time period.

Relevant history

2. The chronology of what I think are the relevant events is as follows.

3. The date of the alleged injury is September 2014. Mr Estefan is alleged to have been present at the time of the injury which occurred in Mr Estefan's home. Mr Estefan is alleged to have provided first aid, including ice, and advised the Plaintiff to go and see a doctor.

4. A few days after that, the Plaintiff says that he spoke to Mr Estefan to advise him that he was suffering acute pain, especially in his left hip and lower back. Mr Estefan told him that he no longer had any work for him, and he should not return to work.

5. The Plaintiff then saw a series of medical practitioners and obtained various scans and the like and in 2017, with the assistance of a friend who advised him around that time to lodge a claim for workers compensation. He submitted a worker's injury claim form on 14 August 2017.

6. There was a lack of response from the then insurer for the employer which resulted in the Plaintiff retaining his present solicitor in September 2017.

7. After some to-ing and fro-ing, the then insurer for the employer declined liability on the 22 September 2017. There was then further negotiations between the parties throughout 2017 and into 2018 which culminated on 29th October 2018 with there being a resolution of the workers compensation claim and an acceptance by the insurer, on behalf of the employer, of an entitlement by the Plaintiff to weekly payments under the workers compensation legislation.

8. Thereafter, the Plaintiff continued to engage with medical professionals. On 9 September 2019, he underwent a total hip replacement at St George Private Hospital. His case is that the need of that operation were the injuries he sustained in September 2014. The operation was not a success or at least the outcome was not that hoped for.

9. On 24 January 2020, the Plaintiff's solicitors put the insurer's for the employer on notice of a poor outcome in respect of that surgery and of the intention of the Plaintiff to bring a claim for working injury damages in due course.

10. Thereafter, further medical advice was sought including an opinion of Dr Bodel who, in June 2020, advised that an assessment of the Plaintiff's permanent impairment could not be then undertaken because his condition had not stabilised and that he might require revision surgery. The Plaintiff chose to undergo conservative treatment, and on 10 February 2022, the Plaintiff's solicitors again wrote to the insurer of the employer advising that the Plaintiff was likely to exceed the whole person impairment for work injury damages pursuant to s 151H of the Workers Compensation Act and asked for a concession to that effect.

11. On 18 October 2022, the insurer’s solicitors wrote to the Plaintiff's solicitors disputing the Plaintiff's whole person impairment on the basis the Plaintiff had not yet reached maximum medical improvement, on the basis of a report of a Dr Nair. The Plaintiff chose to continue with conservative treatment and sometime in early 2023 filed an application to resolve a dispute in the Personal Injury Commission in respect of his level of whole person impairment. That dispute was listed for hearing in the commission on 5 May 2023.

12. On 5 May, by agreement, the matter was remitted to a medical assessor and on 25 July 2023, the Personal Injury Commission issued a certificate of determination confirming the assessment of 37% whole person impairment and the entitlement to a lump sum pursuant to s 66 of the Workers Compensation Act.

13. On 16 August 2023, another letter was written by the Plaintiff's solicitor giving notice of a claim under s 151H of the Workers CompensationAct. There was then to-ing and fro-ing as to particulars of that claim which culminated on the service by the Plaintiff on the insurer of a pre filing statement on 8 July 2024. There was then a mediation between the parties which was unsuccessful which led to these proceedings being commenced on 29 January 2025.

The relevant dates

14. The essential dates are 11 September 2014 being the date of the alleged injury. Three years after that is the 11th September 2017, which is the expiration of the relevant limitation period. The proceedings were not filed until January 2025 some eight years later although time had stopped running on service of the pre-filing statement on the insurer on 8 April 2024 (s 151DA(1)(b)).

The application

15. This is an application by the Plaintiff to extend the time by seeking leave to commence the proceedings pursuant to s 151D(2) of the Workers Compensation Act and for that leave to be given retrospectively, or as people used to say, nunc pro tunc.

The law

16. The law in this area has become clearer as the topic has been reviewed on a number of occasions by the Court of Appeal and I think now boils down to the following.

17. The power under s 151D is broad and discretionary.

18. McHugh J's observations in Brisbane South Regional Health Authority v Taylor (1996) 168 CLR 541 (“Taylor”) remain fundamental. They were applied and approved by the High Court in Prince Alfred College Incorporated v ADC (2016) 258 CLR 134, and the Court of Appeal in Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 (“Itek”) where Ipp J dealt with the matter at [87] by reference to what McHugh J had said in Taylor by describing the power as "a broad discretion is conferred to grant leave to sue after the expiration of the limitation period, the general question that has to be asked is what is fair and what is just." In answering that question, the justice of the case must be evaluated by reference to the rationales of the limitation period that had barred the action.

19. In Howley v Principal Health Care Finance Pty Ltd [2014] NSWCA 447, McColl JA emphasised the following:

1. That s 151D(2) does not spell out specific criteria to be taken into account by the Court when exercising a discretion to extend time.

2. Rather, as Ipp J explained in Itek at [87], there is a broad discretion to grant leave to sue after the expiry of the limitation period in which context the general question has to be asked is "What is fair and just" or "What does the justice of the case require."

20. The question of prejudice to the Defendant lies at the heart of any consideration of an application such as this. In Holt v Wynter [2000] NSWCA 143; 49 NSWLR 128, Sheller JA described the question as being whether or not significant prejudice has been caused by the late filing of the proceedings.

21. That then produced considerable debate about what the notion of "significant prejudice" meant in this context which was resolved in a case called Salvation Army v Rundle [2008] NSWCA 347 (“Rundle”) in the following way, at [96]. "Significant prejudice means such prejudice as would make the chances of a fair trial unlikely."

22. Finally, without seeking to circumscribe the broad judicial discretion engaged, in Gower v State of New South Wales [2018] NSWCA 132, Basten JA identified three matters that ordinarily a Court should consider when dealing with an application to grant leave.

1. The first being whether the cause of action has reasonable prospects of success.

2. The second being whether there has been a reasonable explanation for the delay.

3. The third being what is usually described as prejudice to the Defendant but properly understood, as explained in cases like Rundle, means significant prejudice as would make the chances of a fair trial unlikely.

Consideration

23. Turning then to the facts of this case.

24. Dealing first with the explanation for the delay. The evidence of the Plaintiff, which is not challenged, is that he came to this country from Iraq and by September, was not familiar with the legal system in this state and had a very limited command of the English language.

25. He gave evidence that he had never made a claim for compensation and had no idea what the legal system in Australia was like, and I think significantly, says that he was told by people in his community not to complain or otherwise he might be deported from Australia.

26. He says that as his condition continued to deteriorate, by mid-2017 he happened to meet someone who, when they saw him walking with a limp, and asked him whether he had lodged a workers compensation claim. After that he looked into and then submitted a workers compensation claim in August 2017. His friend helped him complete the paperwork.

27. On behalf of the Plaintiff, Mr Ghabar has submitted that the explanation for the delay between the date of the injury and lodging the workers compensation claim is adequate.

28. He then submits that the explanation for the period that follows which involved seeing many treating medical practitioners and the like culminating in retaining his present solicitor in September 2017 is also adequate and is explained again by his lack of understanding of the legal system but also because objectively it seems to have been the medical consensus that his condition had not stabilised.

29. Mr Jones, who appears for the employer, takes issue with the first proposition. That is, his submission is there is no adequate explanation for the period from 2014 up to September 2017 and he makes the meritorious point that it is clear enough from how the Plaintiff was conducting himself in relation to his injuries that he was perfectly capable of navigating the medical system in Australia, which is not an insignificant task. He was capable of consulting with medical practitioners providing histories and receiving and understanding advice and the like. This sits a little bit awkwardly with the suggestion that he did not understand or have any ability to engage with the Australian legal system.

30. They are all fair points. However, there is evidence, unchallenged from the Plaintiff, that he had been told (albeit it I can comfortably say erroneously) that if he did complain about being hurt at work he might be deported from Australia.

31. That reasoning is obviously wrong because it was based on incorrect advice he was given by a friend. Nonetheless, it is an explanation, and it is not an inadequate or unacceptable explanation simply because it was based on a wrong premise.

32. Mr Jones then makes a second point which is there are gaps in the timeline and the Plaintiff has not given direct evidence as to what it was that made him change his mind and put in the claim form. I consider the better reading of his evidence allows me to infer that it was because of the discussion he had with his friend in 2017 who asked him whether he had lodged a workers compensation claim, and what followed is that what happened. The reason he lodged the claim is because of what his friend told him.

33. That could have been spelt out more expressly in the evidence, but I think all that means is that the explanation could have been more complete. I remain satisfied, however, that it was adequate.

34. The next question identified in the cases that ordinarily requires some attention is the strength or otherwise of the case. It is conceded here that the claim by the Plaintiff is what might be described as a good and arguable case or a case appropriate to go to trial. I think I should take it no further in circumstances where I have not reviewed the full evidence from either side. I proceed upon the basis the Plaintiff does have at least prima facie a good claim for damages.

35. The final, and I consider the paramount, consideration in most of these applications, and to my mind the paramount consideration here, is the question of prejudice to the Defendant.

36. Mr Jones makes submissions not only that his client should be presumed to have suffered prejudice by the effluxion of a significant amount of time relying on observations, I think, by McHugh J in Taylor and similar cases. But also, that there is particular prejudice that has been demonstrated.

37. Factually, what has happened here, as is disclosed in the Defendant’s solicitor, Ms Malone's affidavit, is that in 2017 and 2018, investigators retained on behalf of the Defendant's then insurer, located Mr Estefan and obtained a draft statement from him which, in essence, said that he did not have any recollection of the Plaintiff or the incident at all, and that he was not sure whether there were any records of the company which might assist, nor was he sure whether there ever had been such records.

38. Thereafter, various further attempts had been made on behalf of the Defendant to re-engage Mr Estefan as a starting point to see if he would actually sign the statement which still remains in draft but, secondly, to see if there is anything more he can say. I think it is fair to say that the evidence discloses that Mr Estefan is being uncooperative and is exhibiting every sign of a person who does not want to be involved in the upcoming case at all. The Defendant's solicitor has also tried, with an equal amount of lack of success, to engage with another person who is said by the Plaintiff to have been there at the time who, again, has been located but is declining to cooperate. The Defendant has also tried to speak to another person whose relevance to the events is not clear to me, but I think either he has not been able to be located or, again, is uncooperative.

39. All of that is said to amount to sufficient evidence for me to find actual prejudice so as to be satisfied the Defendant will not be able to have a fair trial in the upcoming hearing.

40. I am not persuaded by that submission. Whilst I accept that there are all sorts of problems in the Defendant's case, caused largely by the lack of cooperation by significant and important witnesses in its camp, there is nothing before me that connects that lack of enthusiasm by those potential witnesses to any delay by the Plaintiff in commencing the proceedings. Mr Jones' submission in answer to this point is that the fact the employer company has now been deregistered, and the matter is being dealt with by a nominal workers' compensation insurer means, effectively, that Mr Estefan and his colleagues have nothing to gain or no interest in the outcome of the proceedings.

41. That may be an explanation for their current lack of cooperation but there are many other explanations equally open, including that perhaps the Plaintiff is telling the truth and Mr Estefan does not want to get involved for that reason, or perhaps Mr Estefan was telling the truth when he gave the original draft statement and that is he actually does not remember anything relevant and, therefore quite reasonably, does not see the need to talk further with investigators or solicitors.

42. Accordingly, whilst I accept the effluxion of time itself will make things harder for the Defendant and, therefore, there is some prejudice, I do not consider that prejudice to be such as to preclude a fair trial. The specific prejudice that has been identified has not in any way been caused by the delay, nor do I consider it significant enough so as to engage the; what seems to now be accepted to be the proper legal question which is, is the prejudice significant such that it will deprive the Defendant of a fair trial?

Orders

43. For all those reasons, I am satisfied the proper exercise of discretion is to grant the relief sought by the Plaintiff in the Notice of Motion. The orders I will make are:

1. Order Nunc Pro Tunc that the Plaintiff be granted leave to commence proceedings against the Defendant pursuant to section 151D(2) of the Workers Compensation Act 1987.

2. The costs of this Motion are to be the Plaintiff’s costs in the cause.

3. Vacate the Hearing of this matter listed for the 8 September 2025.

4. The costs of that vacation are to be costs in the cause.

5. List the matter before the Judicial Registrar for Directions at 10:00am 7 October 2025.

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Amendments

03 September 2025 - Fixed case reference year at [18]

Decision last updated: 03 September 2025