Blanche v North Parkes Limited

[2008] NSWDC 175

CITATION:	Blanche v North Parkes Limited [2008] NSWDC 175
HEARING DATE(S):	31 July 2008
EX TEMPORE JUDGMENT DATE:	31 July 2008
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	On the plaintiff’s motion filed on 11 April 2008: 1 Leave is granted pursuant to s 151D of the Workers Compensation Act 1987 to the plaintiff to commence proceedings against Capena Contracting Pty Limited. 2 The leave granted is to be exercised by not later than 18.8.08. 3 Liberty to apply to vary this date. 4 Costs of the motion will be costs in the cause. On the fourth defendant’s motion filed on 18 February 2008: 1 Motion dismissed. 2 Costs of the Motion will be costs in the cause.
CATCHWORDS:	S 151D - delay resulting from delay in stabilisation of injury and assessment of workplace injury - whether explanation satisfactory
LEGISLATION CITED:	Workers Compensation Act 1987
PARTIES:	Michael John Blanche (Plaintiff) North Parkes Limited being part of the North Parkes Joint Venture t/a North Parkes Mine (First defendant) SC Mineral Resources Pty Ltd being part of the North Parkes Joint Venture t/a North Parkes Mine (Second defendant) Sumitomo Metal Mining Oceania Pty Ltd being part of the North Parkes Joint Venture t/a North Parkes Mine (Third defendant) Capena Contracting Pty Ltd (formerly known as Henry Eltin Walker Contracting Pty Ltd) (Fourth defendant)
FILE NUMBER(S):	Newcastle 408/06
COUNSEL:	I D Roberts SC-P J Kirby (Plaintiff) P L Perry (Fourth Defendant)
SOLICITORS:	Adams Leyland (Plaintiff) Vardenega Roberts (Fourth Defendant)

JUDGMENT

1 There are before the court in this matter two motions. The first in time was filed on behalf of the defendant, the fourth defendant, Capena Contracting Pty Limited, formerly known as Henry Walker Eltin Contracting Pty Limited, seeking orders that the plaintiff’s statement of claim be dismissed as against the fourth defendant. The application is based upon the commencement of proceedings against the fourth defendant outside the time limited by s 151D of the Workers Compensation Act 1987 in the absence of the leave of the court to do so.

2 The application filed on behalf of the plaintiff, recognising that the position taken by the fourth defendant was correct, is an application for leave to commence proceedings pursuant to the relevant section outside the three year time limit provided.

3 The determination of the defendant’s application, of course, depends upon the determination of the application for leave to proceed and, accordingly, I deal with that application first.

4 There are a number of affidavits in evidence before me that set out the circumstances of the claimed injury and the treatment provided to the plaintiff as a consequence of the injury. The material indicates that the plaintiff’s injury was alleged to have been suffered on 3 September 2003 when he was employed by the fourth defendant. He consulted a solicitor in November 2003 and, notwithstanding that he had legal assistance from that early date, action was not taken to pursue a claim for work injury damages until February 2007.

5 The circumstances…