J Smit & Sons Contracting Pty Ltd v Klausy Patrick Buhrer - [2003] NSWCA 48

NEW SOUTH WALES COURT OF APPEAL

CITATION: J SMIT & SONS CONTRACTING PTY LTD v KLAUSY PATRICK BUHRER [2003] NSWCA 48

FILE NUMBER(S):
40273/02

HEARING DATE(S): 7 February 2003

JUDGMENT DATE: 13/03/2003

PARTIES:
J Smit & Sons Contracting Pty Ltd: Appellant
Klausy Patrick Buhrer: Respondent

JUDGMENT OF: Beazley JA Giles JA Cripps AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 1422/01

LOWER COURT JUDICIAL OFFICER: Delaney DCJ

COUNSEL:
Appellant: G P McNally
Respondent: R W Tregenza

SOLICITORS:
Appellant: Hunt & Hunt
Respondent: Heazelwoods

CATCHWORDS:
Leave to appeal
application pursuant to s 151D(2) of the Workers Compensation Act
Appeal from District Court to commence proceedings out of time
Leave to appeal to Court of Appeal

LEGISLATION CITED:
Workers Compensation Act 1987 s 151D(2)

DECISION:
Leave to appeal refused
Claimant to pay opponent's costs

JUDGMENT:

IN THE SUPREME COURT OF
NEW SOUTH WALES
COURT OF APPEAL

CA 40273/02
DC 1422/01
BEAZLEY JA
GILES JA
CRIPPS AJA
Thursday 13 March 2003

J SMIT & SONS CONTRACTING PTY LTD v KLAUSY PATRICK BUHRER

Judgment

BEAZLEY JA: I agree with Cripps AJA

GILES JA: The opponent was employed by the claimant as a general hand. He suffered an injury to his back on 12 January 1995 when he fell while descending a ladder on the side of the claimant’s truck. Pursuant to s 151D(2) of the Workers Compensation Act 1987 (“the Act”), he was not entitled to commence proceedings against the claimant more than three years after the date on which he was injured except with the leave of the court. On 22 November 2001 he applied in the District Court for leave to commence proceedings against the claimant. On 10 December 2001 Delaney DCJ granted leave. This is an application for leave to appeal from Delaney DCJ’s decision, heard on full submissions so that if leave be granted the appeal can be determined without a further hearing.
Some principles
The Act does not state criteria for the grant or refusal of leave to commence proceedings out of time. A general discretion is given, the exercise of which is fully considered in Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207.
The question to be asked is what is fair and just, or what does the justice of the case require (Itek Graphix Pty Ltd v Elliott at [87] per Ipp AJA, Spigelman CJ concurring at [1]; see also per Sheller JA at [2]-[3]). It is not the more confined question posed in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 550, whether the delay has made the chances of a fair trial unlikely, and the question is to be answered with regard to the rationales for the limitation period, including those identified by McHugh J in in Brisbane South Regional Health Authority v Taylor at 552 (Itek Graphix Pty Ltd v Elliott at [87]).
The justice of the case is to be determined on the circumstances of the particular case (

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: [2003] NSWCA 48
Decision Date: 13 March 2003

CaseChat Overview and Summary

This matter concerned an application for leave to appeal to the Court of Appeal from a decision of the District Court. The applicant, J Smit & Sons Contracting Pty Ltd, sought to commence proceedings out of time against the respondent, Klausy Patrick Buhrer, in relation to a workers compensation claim.

The primary legal issue before the Court of Appeal was whether the District Court judge erred in refusing the applicant leave to commence proceedings out of time. This involved considering the applicant's explanation for the delay in commencing proceedings and whether the proposed proceedings had sufficient merit to warrant the granting of an extension of time.

The Court of Appeal noted that the respondent alleged he suffered injury due to the applicant's failure to provide a safe system of work, specifically concerning a ladder on a converted water truck. The respondent had received workers compensation benefits and had been in pain since the injury. While the respondent had been offered a commutation of his workers compensation rights in April 1999, and later consulted solicitors in May 2000, there was uncertainty regarding the precise timeline of events and the applicant's awareness of the respondent's intentions. The District Court judge had found that there was nothing to explain the delay between April 1999 and May 2000.

Leave to appeal was refused, and the applicant was ordered to pay the respondent's costs.

Orders

Orders of the court

Leave to appeal refused

Claimant to pay opponent's costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

It is rare for an evidentiary onus to be determinative. Usually there is evidence, and the court will decide on the evidence as it is and with regard to the persuasive onus. In the present case it will be necessary to say something more of the evidentiary onus.The evidence in this case At the time of the opponent’s injury the truck was a tip truck converted to a water truck by mounting a tank within the tipping body. A ladder on the side of the truck provided access to the top of the water tank. The conversion had been carried out by the claimant at some time between 1984 and the occasion of the opponent’s fall. The opponent alleged that the ladder was attached very close to the body of the truck and the rungs were round, and that he fell from the truck because these features meant that he could not get a proper foothold with his muddy boots. He alleged that the claimant had thereby failed to provide a safe system of work. Following his fall the opponent claimed and was paid workers compensation benefits. He returned to work on light duties a few weeks after the occasion of his fall, and worked for the claimant “in pain” until 28 November 1997. He was then off work “for a number of years”, and at some time in 1999 or 2000 began light work with another employer a few days a week. He said that he was in constant pain from his injury and received “treatment by way of painkilling medication and exercises”, apparently referring to the whole period from when he was injured. He agreed in cross-examination that by 1999 he thought that he had a serious injury which probably would not get better. The opponent said that in April 1999 he received a letter from the solicitors for the workers compensation insurer “offering to settle [his] workers compensation rights by way of a commutation”. A solicitor’s affidavit referred only to a letter dated 10 May 2000 following a telephone conversation on 2 May 2000. The letter of 10 May 2000 did not mention an earlier letter. Clearly enough in response to the letter of 10 May 2000, which invited him to do so, the opponent consulted solicitors. On 17 May 2000 the opponent’s solicitors wrote to the insurer’s solicitors saying that they had been “provided with a copy of your client’s ‘without prejudice’ letter dated 21 April 1999”. One would have thought that they would have been provided with the letter of 10 May 2000, and there is some uncertainty about the course of events. The judge stated that the opponent received a letter of 21 April 1999 and that there was nothing “which explains what happened between 21 April 1999 and May 2000”. It is possible, however, that commutation was first raised in May 2000. In the letter of 17 May 2000 the opponent’s solicitors said that the opponent “is booked to consult a Dr M Ryan on 5 July 2000”, that there was a possibility that he may require surgery to his back, and that “[i]n the circumstances we do not feel it is appropriate at this time to commute our client’s workers compensation entitlements”. They said that they would obtain medical advice and “contact you at that time”.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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