Howley v Principal Healthcare Finance Pty Ltd

The appeal concerned an application by the appellant, Ms Howley, for leave to commence proceedings more than three years after her injury, pursuant to section 151D of the *Workers Compensation Act 1987* (NSW). The respondent, Principal Healthcare Finance Pty Ltd, had accepted that the appellant had demonstrated a prima facie case on liability but did not contend actual prejudice arising from the delay, instead relying on presumptive prejudice. The appellant sought to explain the delay by relying on information provided by her solicitor. The primary judge had dismissed the application for leave.

The Court of Appeal was required to determine whether the primary judge erred in exercising their discretion by rejecting the appellant's application for leave. Specifically, the court considered the adequacy of the explanation for the delay, and whether it was sufficient for the appellant to rely on evidence from her solicitor, based on information and belief, in an interlocutory application seeking an extension of time to commence proceedings under section 75 of the *Evidence Act 1995* (NSW).

The Court of Appeal found that the primary judge had miscarried in the exercise of discretion. The court held that the solicitor's affidavit, even if based on information and belief, provided a sufficient explanation for the delay, particularly in the absence of any contention of actual prejudice by the respondent. The legal principle applied was that in such applications, a reasonable explanation for the delay, coupled with a prima facie case and no actual prejudice, should generally lead to the grant of leave.

The appeal was allowed. The order of the primary judge dismissing the appellant's application for leave was set aside. The appellant was granted leave to commence proceedings in the District Court against the respondent. The costs of the extension application at first instance were to be the appellant's costs in the proceedings, and the respondent was ordered to pay the costs of the application for leave to appeal and of the appeal.