Humble v HMS Australia Operations Pty Ltd - [2020] NSWSC 907

Supreme Court

New South Wales

Medium Neutral Citation: Humble v HMS Australia Operations Pty Ltd [2020] NSWSC 907
Hearing dates: 15 July 2020
Date of orders: 17 July 2020
Decision date: 17 July 2020
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:
(1) Leave is granted to the plaintiff pursuant to s 151D of the Workers Compensation Act 1987 (NSW) to file a statement of claim. Such statement of claim is to be filed within 21 days.
(2) Costs are reserved.

Catchwords:
WORKERS COMPENSATION — Limitation period — Extension of time — Workers Compensation Act 1987 (NSW), s 151D(2) — Where the plaintiff did not make an application until after he was retrenched — Leave granted

Legislation Cited:
Workers Compensation Act 1987 (NSW), ss 151D, 151G, 151H

Cases Cited:
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 139 ALR 1
Holt v Wynter (2000) 49 NSWLR 128; (2000) 31 MVR 467; [2000] NSWCA 143
ItekGraphix Pty Limited v Elliott [2001] NSWCA 442

Category: Procedural and other rulings
Parties: Rodney French Humble (Plaintiff)
HMS Australia Operations Pty Ltd (Defendant)
Representation:
Counsel:
D R Benson (Plaintiff)
T Rowles (Defendant)
Solicitors:
Slater & Gordon (Plaintiff)
Sparke Helmore (Defendant)

File Number(s): 2020/93491
Publication restriction: Nil

Judgment

HER HONOUR: By summons filed 25 March 2020, the plaintiff seeks an order that leave be granted to file and serve a statement of claim out of time. The defendant opposes the granting of leave.
The plaintiff is Rodney French Humble. The defendant is HMS Australia Operations Pty Ltd (“HMS Australia”). The plaintiff relied upon his affidavits dated 25 March 2020 and 23 April 2020, and of his solicitor Stuart Brendan Barnett dated 25 March 2020. Neither of the deponents were required for cross examination. The defendant did not rely upon any affidavit evidence.
This is an application pursuant s 151D of the Workers Compensation Act 1987 (NSW) as amended, as it applies to “workers in or about a coal mine”.
Section 151D of the Workers Compensation Act relevantly reads:

“151D Time limit for commencement of court proceedings against employer for damages
(2) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken.
(3) The Limitation Act 1969 does not apply to or in respect of court proceedings to which this section applies.
…”

This summons was filed two years and eight months outside of the three year limitation period under s 151D(2).

The plaintiff’s submissions

For the purposes of this application only, I have taken the plaintiff’s evidence at its highest, which is as follows.
The plaintiff was born in 1967. The plaintiff grew up in Boggabri and attended Gunnedah High School, leaving in 1983…

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.

Keep reading for free

Create a free CaseChat account to read Humble v HMS Australia Operations Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NSWSC 907
Decision Date: 17 July 2020

CaseChat Overview and Summary

The case of Humble v HMS Australia Operations Pty Ltd was heard in the New South Wales Supreme Court. The plaintiff, Mr Humble, was seeking compensation for injuries sustained during his employment. The primary dispute involved the applicability of the limitation period for making a workers compensation claim under the Workers Compensation Act 1987 (NSW). The defendant, HMS Australia Operations Pty Ltd, argued that the claim was time-barred due to the plaintiff's delay in filing the application for compensation, which occurred after he had been retrenched.

The legal issues before the court included whether the plaintiff's delay in making the application, following his retrenchment, could be considered in the context of extending the limitation period under section 151D(2) of the Workers Compensation Act 1987 (NSW). The court had to determine if the plaintiff's circumstances justified an extension of time to file the claim. This involved examining the principles of equity and fairness in the context of statutory provisions for limitation periods.

The court acknowledged the plaintiff's argument that his retrenchment was a significant factor that contributed to the delay in lodging the compensation claim. It held that the statutory provisions for limitation periods must be balanced with considerations of fairness and equity. The court found that the plaintiff's retrenchment, coupled with his eventual realisation of his injury-related entitlements, constituted exceptional circumstances warranting an extension of time. Consequently, the court granted the plaintiff's application for leave to proceed with the compensation claim despite the delay.

Orders