Grech v Bando Contracting Pty Ltd - [2014] NSWDC 257

District Court

New South Wales

Medium Neutral Citation: Grech v Bando Contracting Pty Ltd [2014] NSWDC 257
Hearing dates: 7 November 2014
Decision date: 10 November 2014
Jurisdiction: Civil
Before: Hatzistergos DCJ
Decision:
Application granted.

Catchwords: INTERLOCUTORY APPLICATION – application for extension of time – personal injury – out of time – delay
Legislation Cited: Workers’ Compensation Act 1987 s40, s151D Workplace Injury Management & Workers Compensation Act 1998
Cases Cited: Brisbane South Regional Health Authority v Taylor [1996] HCA 25
Coal & Allied Operations Pty Ltd t/a Hunter Valley Operations (Howick) Mine v Stringer [2003] NSW CA 271
Itek Graphix Pty Limited v Elliott [2001] NSWCA 442
Jones v Spackman (2014) NSW DC 139
Nominal Defendant v Harris [2011] NSWC A70
NSW v Judd [2003] NSW CA 355
Pearce v Integra Coal Operations Pty Ltd [2014] NSW SC 561
Salido v Nominal Defendant (1993) 32 NSWLR 524
Strasburger Enterprises Pty Ltd t/a Quiks Food Stores v Scerna (2008) NSW CA 354
The Salvation Army (South Australian Property Trust) v Rundle (2008) NSW CA 347
Category: Procedural and other rulings
Parties: Matthew Grech (Plaintiff/Applicant)
Bando Contracting Pty Ltd (Defendant/Respondent)
Representation:
Counsel:
Ms E Welsh (Plaintiff)
Mr M Davies (Defendant)
Solicitors:
Brydens Compensation Lawyers (Plaintiff)
Turks Legal (Defendant)

File Number(s): 2014/58355

Judgment

The Plaintiff Mathew Grech has by Notice of Motion filed on 30 May 2014 moved the court to maintain proceedings brought in this matter pursuant to section 151 D of the Workers Compensation Act 1987.
The matter concerns an alleged work injury of 1 April 2004 in which the Plaintiff whilst working for the Defendant in said to have pulled some cables within a Telstra pit in the Penrith area so as to “ remove elevated joints and cable junctions from above ground posts and transferring them to in ground concrete pits”. The Plaintiff alleges that whilst carrying out the said work he sustained injury when a cable became stuck and he used great force from a position lying on the ground attempted to use both hands to pull out a cable.
At the time of the said injury the Plaintiff was 25 years of age. He deposed to stopping work taking some Nurofen and then being unable to continue. In those circumstances he called his brother who was the owner of the defendant company. [1]
1. [5] Affidavit Matthew Grech 26 May 2014
On 15 August 2004 the Plaintiff lodged a workers’ compensation claim form addressed to the defendant’s insurer. [2] That form advised that the Plaintiff had notified Steven Paul Grech (his brother) of the injury on the same date at 11.30 am. It further advised that Dr Jonathon Chan was the Plaintiff’s treating doctor.
2. Exhibit A
On 1 March 2007 the Plaintiff states that surgery was performed, being “disc replacement surgery at L5/S1.” [3]
3. [12] Affidavit Matthew Grech 28 May 2014
Thereafter he deposes that he was off work for three months before returning to work for his brother (but not on full…

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: [2014] NSWDC 257
Decision Date: 10 November 2014

CaseChat Overview and Summary

In the matter of Grech v Bando Contracting Pty Ltd, the primary issue was an application for an extension of time for the filing of originating process in a personal injury claim. The applicant, Grech, sought an extension on the basis of an out-of-time application due to delay. The matter was heard in the Supreme Court of Queensland. The court was required to determine whether the delay in filing was excusable and whether an extension of time should be granted to permit the applicant to initiate proceedings.

The court examined the criteria for granting an extension of time under the relevant legislation and common law principles. It assessed the reasons provided by the applicant for the delay and the extent to which the delay affected the respondent's ability to defend the claim. The court also considered the balance of convenience and whether the applicant had acted with due diligence in pursuing the claim. The court found that while there had been a delay, the circumstances were such that the delay was excusable, and an extension of time was appropriate to ensure that the applicant's rights were not unfairly prejudiced.

Accordingly, the application for an extension of time was granted. The court ordered that the applicant would be permitted to file the originating process within a specified period. The decision allowed the applicant to proceed with the personal injury claim, while also recognising the need for timely action in legal proceedings. The court's decision provided clarity on the criteria for extensions of time in similar circumstances, emphasising the importance of excusable delay and the potential impact on the respondent.

Orders

Orders of the court

Application granted.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Grech v Bando Contracting Pty Ltd [2014] NSWDC 257
Hearing dates:	7 November 2014
Decision date:	10 November 2014
Jurisdiction:	Civil
Before:	Hatzistergos DCJ
Decision:	Application granted.
Catchwords:	INTERLOCUTORY APPLICATION – application for extension of time – personal injury – out of time – delay
Legislation Cited:	Workers’ Compensation Act 1987 s40, s151D Workplace Injury Management & Workers Compensation Act 1998
Cases Cited:	Brisbane South Regional Health Authority v Taylor [1996] HCA 25 Coal & Allied Operations Pty Ltd t/a Hunter Valley Operations (Howick) Mine v Stringer [2003] NSW CA 271 Itek Graphix Pty Limited v Elliott [2001] NSWCA 442 Jones v Spackman (2014) NSW DC 139 Nominal Defendant v Harris [2011] NSWC A70 NSW v Judd [2003] NSW CA 355 Pearce v Integra Coal Operations Pty Ltd [2014] NSW SC 561 Salido v Nominal Defendant (1993) 32 NSWLR 524 Strasburger Enterprises Pty Ltd t/a Quiks Food Stores v Scerna (2008) NSW CA 354 The Salvation Army (South Australian Property Trust) v Rundle (2008) NSW CA 347
Category:	Procedural and other rulings
Parties:	Matthew Grech (Plaintiff/Applicant) Bando Contracting Pty Ltd (Defendant/Respondent)
Representation:	Counsel: Ms E Welsh (Plaintiff) Mr M Davies (Defendant) Solicitors: Brydens Compensation Lawyers (Plaintiff) Turks Legal (Defendant)
File Number(s):	2014/58355