Hole v Gregory Ronald Lyons trading as Greg Lyons Building Constructions - [2020] NSWSC 102

Supreme Court

New South Wales

Medium Neutral Citation: Hole v Gregory Ronald Lyons trading as Greg Lyons Building Constructions [2020] NSWSC 102
Hearing dates: 13 February 2020
Decision date: 13 February 2020
Jurisdiction: Common Law
Before: Button J
Decision:
(1) Plaintiff granted leave to commence proceedings against the second defendant, pursuant to s 151D(2) of the Workers Compensation Act 1987.

(2) Plaintiff must pay the costs of the second defendant pertaining to this motion.
(3) The costs referred to in order 2 do not become payable until the conclusion of the proceedings.
Catchwords: WORKERS COMPENSATION – s 151D(2) Workers Compensation Act 1987 (NSW) – leave to commence proceedings more than three years after the injury – whether it was fair and just to grant leave – adequacy of explanation for delay – no evidence of prejudice –leave granted to commence proceedings – costs pertaining to the motion to be paid by the plaintiff
Legislation Cited: Workers Compensation Act 1987 (NSW) ss 151D(2), 151DA(3)(b)
Civil Liability Act 2002 (NSW)
Cases Cited: Smith v Grant [2006] NSWCA 244
Category: Procedural and other rulings
Parties: David Hole (Plaintiff)
Greg Lyons Building Constructions (First Defendant)
Briter Door Solutions Pty Ltd (Second Defendant)
Representation:
Counsel:
J Roberts SC/A Cooley (Plaintiff)
H Halligan (Second Defendant)
Solicitors:
Slater and Gordon Lawyers (Plaintiff)
Hicksons Lawyers (Second Defendant)

File Number(s): 2016/60941

EX TEMPORE JUDGMENT - revised

This is an application under s 151D of the Workers Compensation Act 1987 (NSW) (the Act) for leave to proceed, as it were, out of time. It came before me in the Duty list today.
In a nutshell, the substantive claim of the plaintiff, Mr Hole, is that he was working at the Katoomba RSL, which was being renovated. On 23 April 2013 he suffered an injury when, as an on-site workman, he fell into a hole in the premises that had been put there, allegedly, as part of the renovations.
The first defendant is a licensed builder, and the claim against that entity is brought pursuant to the Civil Liability Act 2002 (NSW). Senior counsel for the plaintiff explained that of course s 151D of the Act has no application to such a claim, and in any event there is no statute of limitations problem.
The second defendant, Briter Doors Solutions Pty Ltd, was the employer of the plaintiff, allegedly, and the claim is pursuant to the Act. Accordingly, s 151D has a role to play.
The injury allegedly occurred on 23 April 2013. Prima facie, the limitation in the section expired on 23 April 2016.
It is not disputed by senior counsel for the plaintiff that the statement of claim in question was filed as late, as it were, as on 22 January 2019; in other words, a period of two years, nine months late.
Having said that, on reflection, senior counsel has submitted that it is quite possible that s 151DA(3)(b) of the Act has a role to play, at least with a regard to a period of six…

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] NSWSC 102
Decision Date: 13 February 2020

CaseChat Overview and Summary

The case involved Hole, the plaintiff, against Gregory Ronald Lyons, trading as Greg Lyons Building Constructions, the defendant. The plaintiff sought compensation for injuries sustained during employment, more than three years prior, under the Workers Compensation Act 1987 (NSW). The central legal issue was whether the court should grant leave for the plaintiff to commence proceedings outside the statutory three-year limitation period. This required consideration of the fairness and justice of allowing the plaintiff to proceed, as well as the adequacy of the explanation for the delay and whether the defendant was prejudiced by the delay.

The court found that the plaintiff had provided a reasonable explanation for the delay, and there was no evidence of prejudice to the defendant. The court held that it was fair and just to grant leave to the plaintiff to commence the proceedings. The court acknowledged the statutory three-year limitation period but emphasised the importance of fairness and justice in individual cases. Given the circumstances, the court concluded that the plaintiff's explanation for the delay was adequate, and the defendant had not demonstrated any prejudice resulting from the delay. Consequently, the court granted the plaintiff leave to proceed with the compensation claim.

The final orders included granting leave to the plaintiff to commence proceedings despite the delay and directing that the costs pertaining to the motion be paid by the plaintiff. This decision highlights the court's approach to balancing statutory time limits with the principles of fairness and justice in workers' compensation claims. The court's decision underscores the importance of individual circumstances in determining whether to allow a claim outside the statutory period.

Orders