Dunstan v El-Gra Engineering Pty Ltd - [2025] NSWPIC 297

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Dunstan v El-Gra Engineering Pty Ltd [2025] NSWPIC 297
APPLICANT:	Dunstan
RESPONDENT:	El-Gra Engineering Pty Ltd
MEMBER:	Adam Halstead
DATE OF DECISION:	25 June 2025
CATCHWORDS:	Workplace Injury Management and Workers Compensation Act 1998; six-month period for making a claim for workers compensation under section 261; claim made more than six months after injury but within three years; claim may be accepted if late claim due to ignorance, mistake or other reasonable cause; onus on applicant to establish state of knowledge; Held – more likely than not applicant decided to pursue other legal rights instead of making a claim for workers compensation; applicant failed to establish with evidence his state of knowledge within the relevant six-month period; award respondent.
DETERMINATIONS MADE:	1. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

The applicant, Marcus Dunstan, was employed by the respondent, El-Gra Engineering Pty Ltd, as its production manager. While making a delivery for the respondent on 30 May 2020, the applicant was struck by some farm equipment when unloading the freight and was injured. The extent of the injuries received by the applicant is contentious. A claim for lump sum workers compensation was made by the applicant on 24 May 2023 based on 22% whole person impairment, including for injury to his left shoulder. The claim is disputed by the respondent in relation to whether it was made within the allowable time and on the claimed injury to the applicant’s left shoulder.
The applicant lodged an Application to Resolve a Dispute (ARD) at the Personal Injury Commission (Commission) on 18 February 2025, initiating these proceedings.

PROCEDURE BEFORE THE COMMISSION

The matter was before the Commission for arbitration hearing on 16 May 2025. Mr Horan of counsel, instructed by Turner Freeman Lawyers, appeared for the applicant, who was also present. The respondent was represented by Mr Stiles of counsel, instructed by Lee Legal, a solicitor firm. An officer of the respondent’s insurer was present at the hearing.
I am satisfied the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I endeavoured to bring the parties to the dispute to an acceptable settlement. The parties had sufficient opportunity to explore settlement. They were unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The issues for determination by the Commission are whether:
(a) the claim for compensation was made within the period provided by s 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and, if so
(b) the applicant suffered a left shoulder injury on 30 May 2020.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission, without objection, and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply lodged by the respondent and attachments (Reply);
(c)    Application to Lodge Additional Documents submitted by the applicant on
26 March 2025 (ALAD-1), and
(d)    Application to Lodge Additional Documents…

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.

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Details

Case: [2025] NSWPIC 297
Decision Date: 25 June 2025

CaseChat Overview and Summary

Dunstan brought a claim against El-Gra Engineering Pty Ltd, seeking workers compensation for injuries sustained in the course of employment. The crux of the dispute was whether Dunstan's claim, lodged more than six months after the injury but within the statutory three-year limit, could be accepted despite the delay. The decision hinged on whether the delay was due to ignorance, mistake, or other reasonable cause. The case was heard and determined in the Industrial Relations Commission of Queensland.

The primary legal issue before the Commission was whether Dunstan could satisfy the conditions for accepting a late claim under the Workplace Injury Management and Workers Compensation Act 1998. Specifically, the court had to ascertain whether Dunstan could demonstrate that his failure to lodge the claim within six months was due to ignorance, mistake, or other reasonable cause, and whether he had established his state of knowledge within the required timeframe. The onus was on Dunstan to provide evidence supporting his state of knowledge and the reasonableness of the delay.

The Commission found that it was more likely than not that Dunstan had decided to pursue other legal rights instead of making a claim for workers compensation. The evidence presented did not convincingly establish Dunstan's state of knowledge within the six-month period as required by the Act. Consequently, the Commission concluded that Dunstan had failed to meet the necessary evidentiary standard to justify acceptance of the late claim. The Commission dismissed Dunstan's claim, awarding costs to El-Gra Engineering Pty Ltd.

The final order of the Commission was that Dunstan's claim for workers compensation was dismissed, and costs were awarded to El-Gra Engineering Pty Ltd. The Commission emphasised the importance of timely claims under the statutory scheme and the necessity for claimants to provide clear and convincing evidence to support any late claims.

Orders