BHP Steel (Ais) Pty Limited v Lakovski

The Supreme Court of New South Wales Court of Appeal considered an appeal by BHP Steel (Ais) Pty Limited against a decision of the District Court of New South Wales concerning an application for an extension of time to commence common law proceedings. The dispute arose from an injury sustained by Mr. Lakovski, a former employee of BHP Steel, in 2005. Mr. Lakovski sought to bring a claim for damages for personal injury, but the commencement of proceedings was significantly delayed.

The primary legal issue before the Court of Appeal was whether the District Court had erred in granting Mr. Lakovski an extension of time to commence his common law proceedings, notwithstanding the considerable delay. This involved determining whether the presumption of prejudice arising from such a delay had been sufficiently rebutted, and if not, whether the prejudice to BHP Steel was so significant as to preclude a fair trial. The court had to assess the balance of factors, including the reasons for the delay and the impact of that delay on the ability of BHP Steel to defend the claim.

The Court of Appeal affirmed the principles governing applications for extensions of time under the *Limitations Act 1969* (NSW), particularly in cases of long delay. It was held that while a significant delay raises a presumption of prejudice to the defendant, this presumption can be rebutted by evidence demonstrating that a fair trial remains possible. The court found that the District Court had correctly applied these principles, weighing the applicant's explanation for the delay against the prejudice alleged by the respondent. Ultimately, the Court of Appeal concluded that the District Court's finding that a fair trial was still possible was not an error of law.

The appeal was dismissed, and BHP Steel (Ais) Pty Limited was ordered to pay Mr. Lakovski's costs.