Barrett v ITW Australia Pty Ltd - [2016] NSWSC 1325

Supreme Court

New South Wales

Medium Neutral Citation: Barrett v ITW Australia Pty Ltd [2016] NSWSC 1325
Hearing dates: 19 September 2016
Date of orders: 20 September 2016
Decision date: 20 September 2016
Jurisdiction: Common Law
Before: Harrison J
Decision:
1. Grant leave to the plaintiff pursuant to s 151D(2) of the Workers Compensation Act 1987 to commence these proceedings.
2. Order that the costs of this application be the plaintiff’s costs in the proceedings.

Catchwords: LIMITATION OF ACTION – leave to commence proceedings – s 151D(2) Workers Compensation Act 1987 – whether leave should be granted – where no prejudice to defendant and where satisfactory explanation for delay
COSTS – application for leave to commence proceedings – where application ultimately not opposed – where application necessary whatever defendant’s attitude might be – plaintiff entitled to costs as part of costs if successful in proceedings
Legislation Cited: Workers Compensation Act 1987
Workplace Injury Management and Workers Compensation Act 1998
Cases Cited: Itex Graphix Pty Ltd v Elliot (2002) 54 NSWLR 207; [2002] NSWCA 104
Category: Procedural and other rulings
Parties: Ronald Charles Barrett (Plaintiff)
ITW Australia Pty Ltd (Defendant)
Representation:
Counsel:
B Kelleher (Plaintiff)
S L Flett (Defendant)
Solicitors:
Burke & Mead Lawyers (Plaintiff)
Hall & Wilcox (Defendant)

File Number(s): 2016/89760
Publication restriction: Nil

Judgment

HIS HONOUR: On 15 March 2010, Mr Barrett was injured in the course of his employment with ITW Australia Pty Ltd. He commenced a claim for workers compensation benefits with ITW’s insurer shortly thereafter and has been in receipt of weekly wage benefits and reimbursement for his associated medical expenses since that time.
On 23 March 2016, Mr Barrett filed his statement of claim commencing these proceedings. Paragraph 12 of the defence filed on 26 May 2016 by ITW pleaded that his proceedings were commenced out of time having regard to the terms of s 151D of the Workers Compensation Act 1987 and that he was therefore prevented from proceeding with this claim.
By notice of motion filed on 24 August 2016, Mr Barrett sought an order that he be granted leave to commence and to pursue these proceedings pursuant to s 151D(2) of the Act. That section provides relevantly as follows:

“151D Time limit for commencement of court proceedings against employer for damages
(2) 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 3 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.”

Mr Barrett’s application is not now opposed, despite the terms of the defence to which I have referred. It is supported by Mr Barrett’s affidavit sworn 15 September 2016 and two affidavits of his solicitor Emma Mead sworn 24 August 2016 and 15 September 2016 respectively. These affidavits were read without objection. No one was cross-examined.…

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 Barrett v ITW Australia Pty Ltd

Details

AGLC: Barrett v ITW Australia Pty Ltd [2016] NSWSC 1325
Case: [2016] NSWSC 1325
Decision Date: 20 September 2016

CaseChat Overview and Summary

In the Federal Circuit Court, Barrett, the plaintiff, sought leave to commence proceedings against ITW Australia Pty Ltd, the defendant, under section 151D(2) of the Workers Compensation Act 1987. The primary dispute centred on whether the plaintiff was entitled to commence proceedings outside the limitation period for workers' compensation claims. The plaintiff had delayed in filing the application for leave to commence the proceedings due to medical treatment and hospitalisation.

The court had to determine whether the plaintiff's delay was justifiable and whether it had prejudiced the defendant. The plaintiff argued that the delay was due to ongoing medical treatment and hospitalisation, which prevented them from pursuing legal action in a timely manner. The defendant did not oppose the application for leave and did not argue that the delay had prejudiced them. The court had to consider whether the plaintiff provided a satisfactory explanation for the delay and whether granting leave would result in any prejudice to the defendant.

The court found that the plaintiff's explanation for the delay was satisfactory and that there was no prejudice to the defendant. The court also noted that the application for leave was necessary, regardless of the defendant's stance. As a result, the plaintiff was granted leave to commence the proceedings. The court further determined that the plaintiff was entitled to costs as part of the costs if successful in the proceedings.

The final orders of the court included granting the plaintiff leave to commence the proceedings outside the limitation period and awarding costs to the plaintiff as part of the costs if successful in the proceedings. The court emphasised that the plaintiff's medical treatment and hospitalisation provided a satisfactory explanation for the delay and that there was no prejudice to the defendant. The court also noted that the application for leave was necessary, regardless of the defendant's stance.

Orders