District Court
New South Wales
Medium Neutral Citation: Hibbs v Ready Workforce Australia Pty Ltd [2022] NSWDC 427 Hearing dates: 21 September 2022 Date of orders: 27 September 2022 Decision date: 27 September 2022 Jurisdiction: Civil Before: Gibson DCJ Decision: Order:
(1) Notice of motion dismissed; application to extend time under s 151D of the Workers Compensation Act 1987 (NSW) refused.
(2) Proceedings struck out and dismissed.
(3) Plaintiff to pay defendant’s costs, with liberty to apply.
(4) Exhibits retained until further order.
Catchwords: WORKERS COMPENSATION - application for leave for extension of time - work injury damages - plaintiff injured in 2001 - explanation for delay - strength of case - presumptive and actual prejudice - discretion to grant leave not exercised
Legislation Cited: Workers Compensation Act 1987 (NSW) s 151D
Cases Cited: ABALink Early Intervention Services Pty Ltd v Danford [2019] NSWCA 97
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Chaffey v MPM Maintenance Services Pty Ltd & Anor [2019] NSWDC 260
Creevey v Barrois [2005] NSWCA 264
Gallagher Bassett Services NSW Pty Limited v Murdock [2013] NSWCA 386
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 [2002] NSWCA 104; (2002) 54 NSWLR 207
Paikan v Western Sydney Local Health District
Category: Principal judgment Parties: Plaintiff/Applicant: Mr Corey Daryl Hibbs
Defendant/Respondent: Ready Workforce Australia Pty LtdRepresentation: Counsel:
Solicitors:
Mr B Carney (Plaintiff/Applicant)
Mr P Stockley (Defendant/Respondent)
Plaintiff/Applicant: P K Simpson & Co
Defendant/Respondent: Moray & Agnew
File Number(s): 2022/00083078
Judgment
The application before the court
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The plaintiff by notice of motion filed on 22 July 2022 seeks the following orders:
“1. Order that the Plaintiff be granted leave pursuant to Section 151D of the Workers Compensation Act 1987 to extend time to continue proceedings against the Defendant.
2. Order that the defendant pay the Plaintiff’s costs of this Notice of Motion.
3. Any further orders deemed necessary by the court.”
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The plaintiff relies upon the following affidavit material:
Affidavit of the plaintiff sworn on 17 June 2022.
Affidavit of Mr K Simpson sworn on 17 June 2022.
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The defendant opposes the application, relying upon on the affidavit of Chris Rioden affirmed on 19 September 2022.
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The plaintiff suffered an injury on 13 December 2001, three days after commencing work at an unknown IGA store, having been sent there by the defendant, a labour hire firm. He reported the incident on the day and five days later, after suffering more pain, he consulted a medical practitioner and was certified as unfit for work. He was not retrained, preferring to complete a study course, but obtained a s 66 entitlement on 9 May 2007 and a s 66 Complying Agreement for 15% on 8 March 2012. He obtained a further certificate on 23…
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- Case
- [2022] NSWDC 427
- Decision Date
CaseChat Overview and Summary
The legal issues before the NCAT included whether the plaintiff had a sufficient explanation for the delay in filing the claim, whether the delay caused actual or presumptive prejudice to the defendant, and whether the NCAT should exercise its discretion to grant an extension of time under section 151D of the Workers Compensation Act 1987 (NSW). The NCAT considered whether the plaintiff's explanation for the delay was satisfactory and whether any prejudice to the defendant outweighed the plaintiff's interest in pursuing the claim.
The NCAT found that the plaintiff had not provided a satisfactory explanation for the delay in filing the claim. The NCAT also found that the delay had caused actual prejudice to the defendant as it had made it more difficult to investigate the circumstances of the injury and to locate witnesses. Furthermore, the NCAT found that the delay had caused presumptive prejudice as it undermined the defendant's ability to defend the claim effectively. The NCAT held that the plaintiff had not demonstrated that it was just and equitable to grant leave to extend the time for filing the claim. Accordingly, the NCAT dismissed the plaintiff's application for leave and struck out the proceedings.
The NCAT ordered that the plaintiff pay the defendant's costs, with liberty to apply. The exhibits were retained until further order. The NCAT did not exercise its discretion to grant the plaintiff leave to extend the time for filing the claim, and the proceedings were dismissed.
Orders
Orders of the court
Order:
(1) Notice of motion dismissed; application to extend time under s 151D of the Workers Compensation Act 1987 (NSW) refused.
(2) Proceedings struck out and dismissed.
(3) Plaintiff to pay defendant’s costs, with liberty to apply.
(4) Exhibits retained until further order.
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
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Ratio Decidendi
Legal Principle Established
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