Creighton v Coal and Allied Mining Services Pty Ltd

District Court

New South Wales

Medium Neutral Citation:	Creighton v Coal & Allied Mining Services Pty Ltd [2016] NSWDC 356
Hearing dates:	7 December 2016
Date of orders:	07 December 2016
Decision date:	15 December 2016
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Pursuant s 151D Workers Compensation Act 1987 (NSW), make orders in accordance with paragraph 1 of the Summons filed 21 October 2016 extending time for commencement of proceedings by the plaintiff against the defendant to 19 December 2016. (2) Grant leave to the plaintiff to file the Statement of Claim in these proceedings (2016/319889) and in those circumstances request the Registry to dispense with a further filing fee. (3) Costs of the Summons to be costs in the cause. (4) List the matter for directions before the Registrar on Thursday 19 January 2017.
Catchwords:	WORKERS COMPENSATION – s 151D Workers Compensation Act 1987 (NSW) – leave to commence proceedings more than three years after injury – adequacy of explanation for delay – extension of time granted
Legislation Cited:	Workers Compensation Act 1987 (NSW), ss 149, 151D, 151G, 151H and 151T Workers Compensation Legislation Further Amendment Act 2001 (NSW), Schedule 6
Cases Cited:	Hornby v Nominal Defendant [2007] NSWCA 222 Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447 Salido v Nominal Defendant (1993) 32 NSWLR 524 Strasburger Enterprises Pty Ltd (t/as Quix Food Stores) v Serna [2008] NSWCA 354
Category:	Procedural and other rulings
Parties:	Plaintiff: William Alexander Creighton Defendant: Coal & Allied Mining Services Pty Ltd
Representation:	Counsel: Plaintiff: Mr D R Benson Defendant: Mr P Warnes (solicitor)   Solicitors: Plaintiff: Slater & Gordon Defendant: Moray & Agnew
File Number(s):	2016/319889
Publication restriction:	None

Judgment

The application before the court

1. The plaintiff, by Summons filed on 26 October 2016, seeks an extension of time to commence proceedings against the defendant under s 151D Workers Compensation Act 1987 (NSW) (“the Act”).

2. The statement of claim which the plaintiff seeks to rely upon in these proceedings is annexure “A” to the affidavit of the plaintiff sworn on 21 October 2016. The plaintiff relies upon the contents of his own affidavit and that of his solicitor, Mr Barnett.

3. The plaintiff was a “coalminer” (a “worker employed in or about a mine”: Sch 6, Part 18, cl 1 and 3 of the Act). This means that the plaintiff’s right to bring a common law claim in negligence against the defendant is governed by Part 5 of the Act (“Common Law Remedies”), as read prior to the enactment of the Workers Compensation Legislation Further Amendment Act 2001 (NSW): Sch 6, Part 18, cl 1 and 3. The relevant provisions (as preserved) are ss 149 and 151T.

4. The defendant neither consented to, nor opposed, the grant of leave, and has not filed any evidence, or made submissions beyond noting the principles relevant to presumptive prejudice.

5. I have made orders in accordance with the relief sought in the Summons, and provide these brief reasons for so doing.

The factual background

6. The plaintiff was…