Lieng v Coles Group Supply Chain Pty Ltd

District Court

New South Wales

Medium Neutral Citation:

Lieng v Coles Group Supply Chain Pty Ltd [2023] NSWDC 550

Hearing dates:

6 October 2023

Date of orders:

11 December 2023

Decision date:

11 December 2023

Jurisdiction:

Civil

Before:

Waugh SC DCJ

Decision:

(1) Pursuant to s151D of the Workers Compensation Act, 1987, grant leave to the plaintiff nunc pro tunc to commence these proceedings

(2) The costs of the application be costs in the cause

(3) The exhibits may be returned

Catchwords:

NEGLIGENCE –Workers Compensation Act 1987 (NSW), s151D – three year time limit after date of injury - leave to commence proceedings out of time

Legislation Cited:

Workers Compensation Act 1987

Work Injury Management Act 1998

Workplace Injury Management and Workers Compensation Act 1998

Cases Cited:

Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447

Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207

Whisprun Pty Ltd the Sams [2002] NSWCA 167

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Bobby Lieng (Plaintiff)
Coles Group Supply Chain Pty Ltd (Defendant)

Representation:

Counsel:
Mr D Morgan (Plaintiff)
Mr I Todd (Defendant)

Solicitors:
Garling & Co Lawyers (Plaintiff)
Turks Legal (Defendant)

File Number(s):

2023/43590

Publication restriction:

Nil

Judgment

1. This is an application under section 151D of the Workers Compensation Act 1987 for leave to commence proceedings for work injury damages more than 3 years after the date on which the plaintiff received his injury.

2. The plaintiff was employed as a picker and packer working at the defendant’s distribution centre at Smeaton Grange (a suburb of Sydney) when, on 24 August 2017, he suffered an injury which, it is common ground, has resulted in a 23% whole-person impairment.

3. He commenced these proceedings by filing a statement of claim on 9 February 2023. Whilst this was more than five years after the date he received his injury, there were periods during that time when time did not run for the purposes of calculating the 3-year period under section 151D because of s.151DA. Counsel for the plaintiff, Mr Morgan, provided me with a document setting out 3 separate periods during which he submitted time did not run. As I understand it, the defendant did not cavil with those calculations. According to the plaintiff’s submissions time did not run for a total of 202 days. Counsel for the defendant, Mr Todd, submitted that the period of delay was one year, 9 months and 4 days. As I understand it, the plaintiff did not cavil with that. I therefore proceed on the basis that the period of delay, after allowing for the periods when time did not run, was as submitted by the defendant.

Legal principles

4. Notwithstanding that the 3-year period, after allowing for periods when time did not run, had expired before the plaintiff commenced these proceedings, the court may grant leave under section 151D nunc pro tunc, that is to say, now for then, or retrospectively, to the time the proceedings were actually commenced (:Whisprun Pty Ltd the Sams [2002] NSWCA…