Hibbs v Ready Workforce Australia Pty Ltd - [2022] NSWDC 427

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
Young v Reece Australia Pty Limited [2018] NSWDC 465

Category: Principal judgment
Parties: Plaintiff/Applicant: Mr Corey Daryl Hibbs
Defendant/Respondent: Ready Workforce Australia Pty Ltd
Representation:
Counsel:
Mr B Carney (Plaintiff/Applicant)
Mr P Stockley (Defendant/Respondent)
Solicitors:
Plaintiff/Applicant: P K Simpson & Co
Defendant/Respondent: Moray & Agnew

File Number(s): 2022/00083078

Judgment

The application before the court

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.”

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.

The defendant opposes the application, relying upon on the affidavit of Chris Rioden affirmed on 19 September 2022.
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…

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: [2022] NSWDC 427
Decision Date: 27 September 2022

CaseChat Overview and Summary

The case of Hibbs v Ready Workforce Australia Pty Ltd involved the plaintiff, who sought leave to extend the time for filing a claim for damages related to a work injury sustained in 2001. The defendant, Ready Workforce Australia Pty Ltd, opposed the application on the grounds that the plaintiff had unreasonably delayed in filing the claim and that the delay had prejudiced the defendant. The matter was heard in the New South Wales Civil and Administrative Tribunal (NCAT).

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 Young v Reece Australia Pty Limited [2018] NSWDC 465
Category:	Principal judgment
Parties:	Plaintiff/Applicant: Mr Corey Daryl Hibbs Defendant/Respondent: Ready Workforce Australia Pty Ltd
Representation:	Counsel: Mr B Carney (Plaintiff/Applicant) Mr P Stockley (Defendant/Respondent) Solicitors: Plaintiff/Applicant: P K Simpson & Co Defendant/Respondent: Moray & Agnew
File Number(s):	2022/00083078