Collins v Australian Winch and Haulage Pty Ltd and Sydney Ports Authority
[2009] NSWDC 235
•22 July 2009
CITATION: Collins v Australian Winch & Haulage Pty Ltd & Sydney Ports Authority [2009] NSWDC 235 HEARING DATE(S): 15/07/09, 16/07/09, 17/07/09
JUDGMENT DATE:
22 July 2009JURISDICTION: Civil JUDGMENT OF: Williams DCJ LEGISLATION CITED: Limitation Act 1969
Workers Compensation Act 1987CASES CITED: Sydney Ports Corporation v Collins 2003 NSWCA 28
Deng v GMS Fulfillment Services Ltd (2003) 25NSWCCR446
Berowra Holdings P/L v Gordon 2006 HCA 32
Tvedsborg v Vega 2009 NSWCA 57
In Holt v Wynter 2000 49 NSWLR 128
Brisbane Smith Regional Health Area v Taylor 196 CLR 541
Walters v Cross Country Fuels P/L 2009 NSWCA 10 Itek Graphix P/L v Elliot 54 NSWLR 207
Conray v Scotts Refrigerated Freightways Pty Ltd 2008 NSWCA 60
Berowra Holdings P/L v Gordon 2006 HCA 32PARTIES: Phillip Archibald COLLINS
Australian Winch and Haulage Pty Ltd (AWAH)
Sydney Ports Corporation (SPC)
FILE NUMBER(S): 5232/07 COUNSEL: Mr S. Campbell SC (Plaintiff)
Mr P. Stockley (Plaintiff)
Mr S. Maybury (First Defendant)
Mr C. Egan (Second Defendant)SOLICITORS: Mr I. Collins - Higgins and Higgins Lawyers (Plaintiff)
Ms R. Hosking - HWL Ebsworth Lawyers (First Defendant)
Ms K. Smith - Hicksons Lawyers (Second Defendant)
1. This is an application for an extension of time to commence proceedings. The extension sought against the first Defendant is an extension under the provisions of s60C(2)of the Limitation Act1969 and the extension sought against the second Defendant is pursuant to s151D(2) of the Workers Compensation Act 1987. Both acts have a primary limitation period of 3 years. The Limitation Act application has a secondary absolute limitation period of 5 years.
2. The Plaintiff’s injury occurred on 23 July 2001 when he was standing on a gangplank at Port Botany which was secured by a stainless steel shackle from being raised to a vertical position by virtue of a counterweight. The shackle failed, releasing the counterweight and catapulting him into the air to land on the dock and sustain substantial and severe injuries. SPC was Mr Collins employer.
3. The following is a brief chronology of relatively essential stages in these proceedings:-
23 July 2001 Date of injury
14 August 2001 District Court proceedings against SPC commenced
11 March 2002 Williams DCJ dismisses defendant's application to strike out proceedings
4 July 2002 Messrs Walkden & Apap of AWAH interviewed by WorkCover
18 July 2002 Mr D'Arth of AWAH interviewed by WorkCover
27 Sept 2002 Mr Eftekar metallurgist for WorkCover reports on failure of stainless steel shackle
30 Jan 2003 Notice pursuant to s.62 Ocupational Health and Safety Act 2000 issued by WorkCover to AWAH for production of manufacturers specification for the construction, installation and inspection of the gangway
21 Feb 2003 Court of Appeal allows appeal and proceedings struck out for breach of s.151 C WCA
27 Nov 2003 Letter Ian Collins to Hicksons "instructed at this stage only to pursue his Workers Compensation rights"
13 Jan 2004 Ian Collins gets instructions from plaintiff to pursue common law claim
18 Feb 2004 Application claiming lump sums filed in WCC
19 Feb 2004 Letter Ian Collins to Hicksons seeking agreement that a Whole Person Impairment (WPI) assessment is appropriate
18 March 2004 Letter Ian Collins to Hicksons asking Sydney Ports to set aside judgment and "consent to our client being permitted to proceed with Common Law proceedings"
28 May 2004 WCC proceedings discontinued on disputed ground that claim had not been properly made
24 Nov 2004 Application to claim lump sums and to WPI for common law claim lodged WCC
6 Dec 2004 Plaintiff attends Industrial Commission on prosecution of Sydney Ports before Staff J
7 March 2005 WCC claim discontinued
18 Jan 2006 Plaintiffs letter of demand to AWAH
14 August 2006 Application to claim lump sums and WPI for common law claim lodged WCC
31 August 2006 Present proceedings commenced District Court of NSW
15 Sept 2006 Hicksons letter to Ian Collins confirming undertaking to provide copy of Statement of Claim when s151Z proceedings are commenced "we foreshadow same will be lodged prior to 29 July 2007
18 Oct 2006 Proceedings discontinued against SPC
7 Feb 2007 WCC medical assessment certificate certifies 60% WPI
16 April 2007 WorkCover investigation file produced under subpoena to District Court of NSW
17 August 2007 Allianz commences recovery proceedings against AWAH and ors
11 January 2008 Consent orders for payment of lump sum compensation made.
11 March 2008 AWAH files defence pleading Limitation Act 1969
23 March 2008 Application seeking extension of time filed
17 Sept 2008 Report obtained from Professor Yeomans
29 January 2009 Proposed further amended Statement of Claim served.
16 April 2009 Hearing of motion before Levy DCJ adjourned18 March 2009 Amended Notice of Motion filed
4. The mechanism of the accident and the extent of Mr Collins’ injuries are not disputed in this application. However the matter has, for reasons which will become apparent, a long and unhappy history. It has become part of the NSW Labor Government’s decision in 2001 to reduce the entitlements of the ordinary worker. That legislation came into operation in November 2001, reducing workers’ common law damages against their employer to damages for economic loss only. There was a flurry of matters in which statements of claim were filed in order to avoid the consequences of the legislation. This was one such matter.
5. However, there was a problem in that common law proceedings could not be commenced unless 6 months notice had been given or there had been a refusal of liability by the employer (see s151C(2) of the Workers Compensation Act 1987) (WCA). SPC brought proceedings in the District Court at Lithgow to strike out a Statement of Claim lodged by Mr Collins and said to be in breach of this provision. That matter was heard by me on 11 March 2002 and dismissed but my decision and a decision in another matter was reversed on appeal on 20/2/2003 (Sydney Ports Corporation v Collins 2003 NSWCA 28). The common law proceedings against SPC were therefore struck out.
6. There can be little doubt that Mr Collins acted promptly to preserve his rights. I am satisfied that both he and his solicitor well knew the limitation periods relevant to the causes of action whatever they might turn out to be.
7. A criticism directed at Mr Collins’ solicitor, Mr Ian Collins, who also happens to be Mr Collins’ brother, is that he knew from an early point in time that AWAH may have had an involvement in the matter, but failed, until 2006, to commence proceedings against them. I am well satisfied that the solicitor made sufficient effort to try and locate anyone else who may have been a tortfeasor and to try and obtain a sufficiency of evidence against that entity that would justify the commencement of proceedings. There is no evidence that the solicitor was negligent, or dilatory having regard to the practical problem, that confronted him.
8. Preliminary investigatory attempts by Canobolas Investigations, instructed by Mr Ian Collins, were met by a lack of co-operation from SPC and a refusal to allow the investigator on to the site to photograph the area and speak to witnesses. Unisearch were also approached for an experts report but were unable to assist without access to the shackle. Workcover became involved but, under subpoena, Workcover refused to make available material they had because of pending prosecution proceedings against at least SPC and possibly others.
9. Eventually, a Freedom of Information Application produced some results in October 2003, but did not reveal any information that would substantiate proceedings against any other relevant party. An early investigation report by Gaskin, Oliver, Prime, insurance claims assessors dated 14 Dec 2001, was not made available to Mr Collins until 13/04/04.
10. Consequent upon the Court of Appeal decision on 20/2/2003 attempts were made to then comply with the notice requirements in s151C. However, SPC argued that Mr Collins had made an irrevocable election to proceed at common law and could not then seek to obtain a Whole Person Impairment (WPI) assessment or s66 or s67 workers compensation assessments relying on the decision of Deng v GMS Fulfillment Services Ltd (2003) 25NSWCCR446 . Litigation was pending in different courts, including the High Court as to the effect of this legislation (see Berowra Holdings P/L v Gordon 2006 HCA 32 (where that situation was not really resolved). Having regard to the confused situation Mr Collins’ solicitor wrote on 27/11/03 that Mr Collins was, at that time, only going to proceed with his Workers Compensation rights. Hicksons, solicitors for SPC, responded by saying that Mr Collins had made an irrevocable election and could not claim workers compensation lump sum payments.
11. Both Mr Collins and his solicitor then made political representations to have legislation enacted to overcome the problem and the uncertainties and in 2007 the NSW government passed the Workers Compensation Amendment (Transitional) Regulation 2007.
12. However, in the meantime, on 18/2/04 Mr Collins had lodged an application to resolve a dispute in the Workers Compensation Commission. This was subsequently withdrawn as a result of a disputed procedural matter, which was not conceded by Mr Collins’ solicitor. A further application for s66 and s67 lump sums was lodged on 24/11/04. This was not determined until 23/7/06.
13. On 23/2/05 SPC was fined $90,000 as a result of a workers compensation prosecution for breaches of the Occupational Health and Safety Act.
14. A final application for WPI was lodged on 15/8/06 which was not determined until 19/12/07 and on 11/1/08. I do not see that the convoluted standard Form lodging these applications as being determinative of either what was being sought or the applications outcome.
15. On 11/8/07 SPC commenced proceedings against a variety of parties for recovery of workers compensation payments made by them to Mr Collins. Those proceedings involved Sinclair Knight Merz Pty Ltd (SKM) the designer and manufacturer of the gangway in question, AWAH Pty Ltd, PWB Anchor Pty Ltd and Gray Diving Services Pty Ltd. Those proceedings are still current.
16. Following advice of counsel, Mr Collins commenced proceedings in the District Court against SPC, AWAH, SKM, Gray Diving and PWB Anchor because of concerns as to the expiration of the limitation periods becoming longer in the past and because it was presumed that SPC, in being about to commence recovery proceedings against the named organisations, had sufficient evidence at that stage to have a realistic probability of success against them. However Mr Collins could not commence proceedings against SPC because he still did not have a WPI or s66 and s67 lump sum from his workers compensation proceedings, which were a bar to his commencing proceedings. Section s280A of the Workplace Injury Management and Workers Compensation Act (the WIM Act) provides that a claim for work injury damages cannot be made unless a claim for lump sum compensation is made before or at the same time as the claim for work injury damages.
17. Mr Collins’ solicitor’s understanding of s280A was that it precluded commencing common law action until the worker had recovered lump sums under s66 and s67 and that is why he commenced workers compensation proceedings in 2004 (See TP105).
18. On 31/08/06 a Statement of Claim was filed in the District Court nominating as defendants SPC, SKM, AWAH, PWB Anchor and Gray Diving Services but on 18/10/06 the proceedings against SPC were discontinued. On 17/11/08 the proceedings were discontinued against SKM, Gray Diving and PWB Anchor. The proceedings against SKM, PWB Anchor and Gray Diving were discontinued because there was no evidence to support any action in negligence against them. The proceedings against SPC were discontinued because of “the various requirements of the WIM Act 1998.” (see Exhibit B paragraph 23 - I. Collins’ affidavit). These included s280A as well as chapter 7 Part 6 s313 WIM Act assessments.
19. When the time limit expired against AWAH, I am not satisfied there was sufficient evidence to inculpate them in the Plaintiff’s injuries. Indeed the only report then available from ETRS blamed a manufacturing defect for the shackle failure, noting that as at that time and indeed until very recently, the Plaintiff had no access to the faulty shackle in question. Further I am not satisfied, hindsight aside, that there had been any lack of forensic diligence to that point in time.
20. It is argued that as far as AWAH is concerned there were material facts available to the Plaintiff to commence proceedings within time. I reject that. It can never be reasonable for a person in the Plaintiff’s position to launch speculative litigation merely on the knowledge that a particular party may have had some connection with the circumstances of an accident. The days when it was possible to file a writ and let it lie in office have long gone. A plaintiff is required to specifically plead a cause of action so that a defendant knows what the facts are that it has to contend with. Further, a plaintiff’s solicitor has to certify that, in his or her belief, the plaintiff has a maintainable cause of action and I accept thetMr Ian Collins, unlike many other practitioners, took that obligation seriously.
21. Mr Collins was naturally concerned at the costs risk to him of launching such an action without proper proof. So was his solicitor. I can see nothing reprehensible in that, nor do I see that as evidence of a lack of forensic diligence.
22. It is argued that the situation that confronted Mr Collins when proceedings were commenced in 2006 was exactly the same and that in effect nothing had changed between the date the limitation period had expired and the date the proceedings were filed. Certainly as far as Mr Ian Collins was concerned he still had reservations about a case against AWAH. However he had counsel’s advice, right or wrong, that as even more time was slipping away and because SPC were about to commence recovery action against AWAH, SKH, PWB Anchor and Gray Diving and that therefore, presumably, SPC must have evidence inculpating those parties and consequently such evidence could be obtained through various court processes after action was commenced, a statement of claim should be filed.
23. Indeed Mr Ian Collins was not confident of the claim against AWAH until after he was able to get access to the Workcover file and proceedings under subpoena, which was not until 16/04/07 after the current proceedings had been commenced, and he had Professor Yeoman’s report, which wasn’t until 17/09/08. The Workcover file contained statements made by AWAH employees in July 2002 namely Mr Walkden, Mr Apap and Mr D’arth. Indeed Mr D’arth was AWAH’s engineering manager. None of this material was provided under the FOI application or under the previous subpoena because of privilege claimed by Workcover in regard to its prosecution of SPC. This prosecution was not heard until December 2004.
24. The fact of the matter is that although proceedings were commenced on 31/08/06 a defence was not filed by AWAH until 11/03/08 pleading, amongst other things, the Limitation Act. There was no application by AWAH to strike out the proceedings on the basis that they disclosed no cause of action.
25. In fact, despite a letter from Hicksons, SPC’s solicitors, to Mr Ian Collins of 15/09/06 agreeing to provide a copy of the Wokers Compensation recovery action statement of claim and confirming such proceedings would be commenced by 29/07/07, the proceedings were not in fact commenced until 17/08/07 and it wasn’t until the hearing of this application that Mr Collins had access to that statement of claim.
26. Both SPC and AWAH agree that they cannot demonstrate any actual prejudice. However, both rely on “presumptive prejudice.” The defendants do not say that they have lost an opportunity to have Mr Collins medically examined because that has in fact occurred. Nor is it suggested that Mr Collins’ claim is not a substantial claim with significant ongoing disabilities.
27. Although AWAH has not had Mr Collins medically examined, SPC had him examined in 2002 by Drs Fearnside, Champion and McCauly and in 2004 by Dr Carroll. Furthermore, he has been in receipt of compensation payments. In Tvedsborg v Vega 2009 NSWCA 57 the court said at paragraph 42: “(I)t would generally be improper to impose upon the plaintiff the burden of undergoing medical examinations by experts nominated by each defendant. The Civil Procedure Act 2005, s 56, requires the Court to give effect to the overriding principles of the Act and the UCPR, namely, the facilitation of the just, quick and cheap resolution of the real issues in the proceedings. That will not be achieved if two sets of defendants’ medical examinations are permitted”.
28. I accept the submission that the provision of the ETRS report dated 14/2/02 was not conduct that “induced” the plaintiff to delay in the perjorative sense. However, it did have the unwitting effect of diverting attention elsewhere, remembering that the plaintiff did not then have, and never has had, access to the shackle in question. But I accept that the report was not a deliberate ruse to steer the plaintiff away from AWAH. A report by a Workcover metallurgist, Mr Eftakhar of 27/9/02. although critical of the ETRS report, essentially came to the same view, but again this report was not made available to Mr Collins until 16/4/07.
29. Section 60C of the Limitation Act extends the primary limitation period of 3 years by a further maximum of 5 years.
30. The courts’ statutory discretion to extend the primary limitation period is unfettered, provided it is “just and reasonable” to do so.
31. Section 60E(1) requires the court to “have regard to all the circumstances of the case “as well as, if relevant, the matters set out in ss(a)-(h). Those matters are :-
- (a) the length of and reasons for the delay,
(b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available,
(c) the time at which the injury became known to the plaintiff,
(d) the time at which the nature and extent of the injury became known to the plaintiff,
(e) the time at which the plaintiff became aware of a connection between the injury and the defendant’s act or omission,
(f) any conduct of the defendant which induced the plaintiff to delay bringing the action,
(g) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received,
(h) the extent of the plaintiff’s injury or loss.
32. As to (a), they are covered by the matters referred to in the affidavits of Mr Collins, the other evidence tendered and the reasons for judgment herein.
33. As to (b), no actual prejudice has been claimed.
34. As to (c), Mr Collins was aware immediately of his injury.
35. As to (d), Mr Collins became aware, at least by the end of 2003, of the nature and extent of his injuries.
36. As to (e) Mr Collins was always well aware of the connection between his injuries and SPC’s act or omission. However, the relevance of AWAH’s act or omission being an actionable one at law did not become apparent at least until the Workcover file was made available under subpoena in April 2007 and, more definitively, with Professor Yeoman’s report in September 2008.
37. As to (f), (g), and (h), I have already commented on them above.
38. The section 60E criteria do not statutorily apply to considering the delay as regards SPC because that application is made under s151D of the Workers Compensation 1987 and the provisions of the Limitation Act are specifically excluded. Section 151D(2) provides that a plaintiff cannot commence proceedings for damages against an at-fault employer, more than three years after the date of the injury, without the leave of the court. However, I would accept that similar criteria apply to the discretionary granting of leave in such cases.
39. In Holt v Wynter 2000
49 NSWLR 128 the court, after referring to the High Court’s decision in Brisbane Smith Regional Health Area v Taylor 196 CLR 541 said that “an application for an extension of time should be refused of the granting of the extension would result in significant prejudice to the potential defendant. It is for the defendant to show some evidence of prejudice and for the plaintiff to establish that the prejudice is not significant” (see pages 146-147).
40. In Walters v Cross Country Fuels P/L 2009 NSWCA 10 Campbell JA said that the question to be determined involves deciding whether it is just and reasonable that the absolute defence created by the statutory bar, be taken away.
41. Itek Graphix P/L v Elliot 54 NSWLR 207 was a case concerning s151D(2) of the Workers Compensation Act 1987, although the factual circumstances were substantially different. The court agreed that the broad discretion given by the section must be exercised in good faith and with due regard to those affected by the decision as well as giving effect to the parliamentary purpose for the discretion being permitted. The decision to exercise the discretion must be fair and just or be what the justice of the case requires.
42. This case was cited as authority for the proposition that if a person deliberately allows a limitation period to expire then, if they cannot satisfactorily explain such conduct, their application ought not be granted, even if a defendant suffers no prejudice.
43. The argument is that this is what has happened in the present case. However, I do not accept that such was in fact the situation here. I do not accept that Mr Collins made a deliberate decision to pursue Workers compensation rights as opposed to common law rights in the way in which the respondent did on the Itek case. It was suggested that Mr Collins did this in a letter sent by his solicitor to Hicksons in November 2003. That was a letter that was sent after Hicksons had declined to set aside the Court of Appeal Judgment of 20/2/03 in return for Mr Collins’ assistance to recover workers compensation payments against others. In that letter Mr Ian Collins wrote that Mr Collins “was greatly disappointed with the result and the Court process generally and therefore has instructed us at this stage only to pursue his workers compensation rights,” that is, as against SPC.
44. This was not a letter directed to the world at large. What needs to be remembered here is that the Court of Appeal had struck out Mr Collins’ common law proceedings and SPC was maintaining that Mr Collins had made an irrevocable election and could not pursue even workers compensation payments and those payments were then a prerequisite to common law proceedings. I am satisfied that this was not some sort of tactical decision, as seems to have been the case in Itek. Exhibit E is a file note of Mr Ian Collins of 13/1/04 in which he notes that he was instructed by Mr Collins to proceed with common law proceedings after the workers compensation proceedings for s66/67 payments had been made.
45. That Mr Collins may have been disappointed about the legal situation is well understandable. Apart from anything else, he was also coping with serious ongoing injuries including short term memory defects. I am not satisfied that there was a deliberate decision to allow the limitation period to expire in order to solely pursue a different right under a different act. Indeed Mr Maybury for AWAH very fairly conceded that Mr Collins always intended to exercise his common law rights.
46. In Conray v Scotts Refrigerated Freightways Pty Ltd 2008 NSWCA 60, Simpson J, with whom Beasley JA agreed, gave the judgment that sets out the binding principal of that case. The dissenting judgment is therefore, with respect, irrelevant. Simpson J said at paragraph 135 that despite the McHugh J calculus in the Brisbane South Case “the overriding test is that stated in s60(2) – the inquiry is whether it is just and reasonable to extend the period”.
47. McHugh J in the Brisbane South Case referred to four broad rationales which are in effect presumptive prejudices that exist behind the reasons for which limitation periods are enacted.
48. They are: (1) The effect on the loss of relevant evidence by the passage of time;
(2) The “oppression”, “cruelty” or general unfairness to the defendant in allowing a long dormant cause of action to be resurrected;
(3) The necessity for allowing persons to organise their affairs, particularly financial ones, on the basis that here will be no further claims relevant to a past specified cut off date; and
(4) The public interest in the just, fair and early resolution of such disputes.
49. Neither AWAH nor SPC can point to any of those four criteria that have impacted on them in any meaningful way. Whilst there can be no doubt that the passage of time impinges on any witness’s ability to accurately remember things that happened, in this case all that could be investigated was investigated and contemporary statements of witnesses, both expert and non expert, currently exist. But that would have been the case even if the matter was brought within the time limit because current psychological evidence suggests that the ability to recall fine detail more than a relatively short time after an event, reaches a certain level and then basically remains the same. For reasons similar to Simpson J in Conray at paragraph 149, I am not satisfied that there would be any significant prejudice to either defendant in allowing the bar to be extended, having regard to the McHugh J calculus previously referred to.
50. Further I do not accept that it was lack of forensic diligence on the part of Mr Collins or his solicitor to not pursue AWAH because they preferred to run the stronger case against SPC. Mr Collins was always prepared to sue whoever could be shown to be responsible provided there was the availability of persuasive evidence.
51. On 29/08/06 Hicksons wrote to Mr Collins’ solicitor drawing their attention to the high Court decision in Berowra Holdings P/L v Gordon 2006 HCA 32 upholding the NSW Court of Appeal’s decision which in effect was that failure to comply with s151C(1) was not an “incurable voidness” to non-compliant proceedings. This was the “election letter” whereby the defendant was saying that as the plaintiff had elected to proceed at common law he was precluded from making claims for s66 and s67 benefits. It was argued that there was nothing to prevent Mr Collins’ solicitor obtaining a WPI at any time after the legislation was enacted and that in fact he had agreed in law that that was correct. However, Mr Ian Collins’ evidence was somewhat different. At TP86 he was asked as follows:-
Q. Yet it's not until you have lodged this motion that you seek to bring proceedings against the employer for work injury damages?
A. Well we're not entitled to bring proceedings against the employer for work injury damages until we get a whole person impairment assessment and we go through the mediation process and we get a certificate of the outcome of mediation, which I think occurred in 6 January this year.
Q. That could have occurred at any time after the Court of Appeal?
A. It could have occurred at any time with the assistance of the defendant. The defendant didn't have to take the 151C objection. The matter would have been dealt with years ago.
Q. It could have occurred, could it not, at any time after the Court of Appeal decision dismissing the original proceedings?
A. No, it couldn't because the respondent opposed it.
Q. You had the right or your client had the right, did he not, to proceed with a claim for an assessment for the threshold purposes of bringing a work injury damages claim at any time after?
A. Once his condition - indeed that's exactly what we've been arguing with the respondent since 2004.
Q. Yet it was those applications--
A. That's right.
Q. -were not brought initially until early - the first of those applications were not brought until early 2004?
A. That's right. They can't be brought until the condition's stable, you have the assessments, you give the formal notices. That didn't occur until late 2003. We had the refusal or denial by the respondent dated 24 December 2003 that enabled us then to file the application which was then filed in whatever, January 2004. And then from 2004 that was exactly what we were trying to do.
Q. But did not proceed with any of those applications?
A. Well we tried to. We were--
Q. For one reason or another?Q. But you didn't, did you? You discontinued them?
A. No.
A. There's a difference between saying didn't try to proceed. We tried to proceed. We discontinued the first because there was a disagreement where the respondent said that a formal notice hadn't been given. A formal notice had been given. We then had to refile. We were told by the respondent in its conversations and in its reply and its pleadings and certainly in its letter of 24 December 2003, that the respondent was going to argue black and blue that the applicant was not entitled to get a whole person impairment assessment. It made an irrevocable election, wasn't entitled to bring common law action, wasn't entitled to rights under sections 66 and 67. That's what the respondent was arguing and they were saying that irrespective of the respective of the result we were going to take - they were going to take it off to the Court of Appeal and there were other matters that were already in the Court of Appeal arguing about exactly the same things, and ultimately to the High Court.
52. I accept that both Mr Collins and his solicitor were aware of the existence of SPC and AWAH at the time of the injury and thereafter. However such knowledge doesn’t necessarily equate to a maintainable cause of action.
53. I found Mr Collins and Mr Ian Collins to be outstanding, honest and forthright witnesses even though, on initially reading Mr Ian Collins’ affidavit of 17/3/09, which was the only one in the court file, I had reservations about why this matter had reached the stage that it had. However, when the proceedings started I had his and Mr Collins’ earlier and more voluminous affidavits, which, together with their evidence and the other evidence in the matter, substantially fleshed out what has occurred over the passage of time.
54. I am of the view the McHugh J calculus in the Brisbane South case has no relevant application to the actions the plaintiff seeks to bring against either AWAH or SPC.
55. I am well satisfied that, as against AWAH, having regard to all the circumstances of the case it is just and reasonable to make the orders sought.
56. I am also well satisfied as against SPC that it is both fair and just as well as the justice of the case requiring it, that the orders sought be made.
57. In this matter I grant leave to the plaintiff pursuant to s 151D of the Workers Compensation Act 1987 to commence proceedings against Sydney Ports Corporation by filing a further amended statement of claim marked as annexure E to the affidavit of Ian James Collins sworn on 17 March 2009 on or before 24 July 2009.
58. I grant leave to the plaintiff to continue proceedings commenced against Australian Winch and Haulage by the filing of the statement of claim in Lithgow on 31 August 2006 by filing the said further amended statement of claim on or before 24 July 2009 and, to be on the safe side, in the alternative, the plaintiff be granted leave to commence proceedings against AWH by filing the said further amended statement of claim on or before 24 July 2009
59. I note the agreement as to costs as between the plaintiff and SPC.
60. I note the agreement as to costs as between the Plaintiff and AWAH that each party to pay its own costs of the application
J S Williams
Judge
22 July 2009.
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