Hawley v Wesley Community Services Ltd - [2020] NSWDC 630

District Court

New South Wales

Medium Neutral Citation: Hawley v Wesley Community Services Ltd [2020] NSWDC 630
Hearing dates: 16 October 2020
Date of orders: 23 October 2020
Decision date: 23 October 2020
Jurisdiction: Civil
Before: Russell SC DCJ
Decision:
(1) Dismiss the plaintiff’s motion filed on 31 August 2020.
(2) Order the plaintiff to pay the defendant’s costs of the motion.

Catchwords:
PROCEDURE – application for leave to commence proceedings under s 151D of the Workers Compensation Act 1987 – whether plaintiff has arguable cause of action – explanation for delay – prejudice – plaintiff must call sufficient evidence when seeking exercise of discretion

Legislation Cited:
Workers Compensation Act 1987 (NSW), s 66, s 151D

Cases Cited:
ASB-Tech Services Pty Ltd (In Liq) v Doeland [2003] NSWCA 167
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Gower v State of New South Wales [2018] NSWCA 132
Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128
Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447
Itek Graphix Limited v Elliott [2001] NSWCA 442; (2002) 54 NSWLR 207
McMartin v Huricon Manufacturing & Sales Pty Limited [2014] NSWSC 1812
Saad v J Robins & Sons Pty Limited [2003] NSWCA 87
Salido v Nominal Defendant (1993) 32 NSWLR 524
Sydney City Council v Zegarac (1998) 43 NSWLR 195
Walters v Cross Country Fuels Pty Ltd [2009] NSWCA 10

Category: Procedural and other rulings
Parties: Teena Hawley (Plaintiff)
Wesley Community Services Ltd (Defendant)
Representation:
Counsel:
K Balendra (Plaintiff)
M Best (Defendant)
Solicitors:
Gerard Malouf & Partners (Plaintiff)
Rankin Ellison (Defendant)

File Number(s): 2020/158090

Judgment

Background

The plaintiff sues the defendant by a Statement of Claim filed on 27 May 2020. The plaintiff was employed by the defendant as an Assistant in Nursing. The plaintiff alleges that on 4 August 2011 in the course of her employment she had to manually lift a heavy patient and that during the course of the lift she sustained personal injuries.
The Statement of Claim pleads that the defendant was negligent.
The Defence filed on 25 June 2020 denies negligence and alleges contributory negligence. The Defence pleads that the plaintiff is out of time because of the three year limitation period in s 151D of the Workers Compensation Act 1987 (NSW) (the Act).
The plaintiff filed a Notice of Motion on 31 August 2020 seeking a grant of leave pursuant to s 151D for an extension of time to proceed with the work injury damages claim.
There was no affidavit from the plaintiff herself. The plaintiff tendered the affidavit of her solicitor Aadil Ahmed dated 31 August 2020 (PX 1). The plaintiff first instructed her present firm of solicitors on 8 September 2017. Prior to that she had instructed two other firms of solicitors.
Exhibit PX 1 annexed documents concerning a lump sum compensation claim made pursuant to s 66 of the Act on 15 January 2014 for a 17% Whole Person Impairment (WPI). On 26 September…

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: [2020] NSWDC 630
Decision Date: 23 October 2020

CaseChat Overview and Summary

The plaintiff, Hawley, sought leave to commence proceedings against Wesley Community Services Ltd under section 151D of the Workers Compensation Act 1987. The application was brought by Hawley, a former employee of Wesley Community Services Ltd, who alleged that they were entitled to workers' compensation for an injury sustained during the course of their employment. The dispute centred on whether Hawley had an arguable cause of action, the reasons for the delay in bringing the claim, and the potential prejudice to the defendant if the claim were to proceed. The court was required to decide whether Hawley had a sufficient basis for their claim and whether the delay and potential prejudice to Wesley Community Services Ltd warranted dismissal of the application.

The court examined the legal issues, considering whether Hawley had demonstrated an arguable cause of action for workers' compensation. It also evaluated the explanation provided for the delay in bringing the claim and assessed the potential prejudice to Wesley Community Services Ltd if the proceedings were allowed to proceed. The court held that the plaintiff must present sufficient evidence to support their claim and to justify the exercise of the court's discretion in permitting the claim to proceed. In this instance, the court found that Hawley had not provided a satisfactory explanation for the delay or demonstrated a sufficient likelihood of success in their claim. The court concluded that the plaintiff had not met the necessary threshold for leave to be granted.

The court dismissed the plaintiff's motion filed on 31 August 2020, finding that Hawley had not established an arguable cause of action or provided a satisfactory explanation for the delay. The court also determined that the plaintiff had not demonstrated that they would be able to call sufficient evidence to support their claim. As a result, the court ordered Hawley to pay the defendant's costs of the motion. The dismissal effectively prevented Hawley from proceeding with their claim for workers' compensation against Wesley Community Services Ltd.

Orders

Orders of the court

(1) Dismiss the plaintiff’s motion filed on 31 August 2020.

(2) Order the plaintiff to pay the defendant’s costs of the motion.

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:	Hawley v Wesley Community Services Ltd [2020] NSWDC 630
Hearing dates:	16 October 2020
Date of orders:	23 October 2020
Decision date:	23 October 2020
Jurisdiction:	Civil
Before:	Russell SC DCJ
Decision:	(1) Dismiss the plaintiff’s motion filed on 31 August 2020. (2) Order the plaintiff to pay the defendant’s costs of the motion.
Catchwords:	PROCEDURE – application for leave to commence proceedings under s 151D of the Workers Compensation Act 1987 – whether plaintiff has arguable cause of action – explanation for delay – prejudice – plaintiff must call sufficient evidence when seeking exercise of discretion
Legislation Cited:	Workers Compensation Act 1987 (NSW), s 66, s 151D
Cases Cited:	ASB-Tech Services Pty Ltd (In Liq) v Doeland [2003] NSWCA 167 Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 Gower v State of New South Wales [2018] NSWCA 132 Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447 Itek Graphix Limited v Elliott [2001] NSWCA 442; (2002) 54 NSWLR 207 McMartin v Huricon Manufacturing & Sales Pty Limited [2014] NSWSC 1812 Saad v J Robins & Sons Pty Limited [2003] NSWCA 87 Salido v Nominal Defendant (1993) 32 NSWLR 524 Sydney City Council v Zegarac (1998) 43 NSWLR 195 Walters v Cross Country Fuels Pty Ltd [2009] NSWCA 10
Category:	Procedural and other rulings
Parties:	Teena Hawley (Plaintiff) Wesley Community Services Ltd (Defendant)
Representation:	Counsel: K Balendra (Plaintiff) M Best (Defendant) Solicitors: Gerard Malouf & Partners (Plaintiff) Rankin Ellison (Defendant)
File Number(s):	2020/158090