Lynch v VLI Drilling Pty Ltd - [2024] NSWSC 1370

Supreme Court

New South Wales

Medium Neutral Citation: Lynch v VLI Drilling Pty Ltd [2024] NSWSC 1370
Hearing dates: 25 October 2024
Date of orders: 25 October 2024
Decision date: 25 October 2024
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) Under s 151D of the Workers Compensation Act 1987 (NSW) grant leave to the plaintiff nunc pro tunc to commence these proceedings for damages for the injury suffered by him on 21 December 2013 by filing his statement of claim on 22 December 2023.
(2) I note the agreement of the parties that the costs of this application of each of them should be costs in the cause.

Catchwords:
WORKERS COMPENSATION – application extension of limitation period – application neither consented nor opposed – plaintiff’s reliance on solicitors’ advice – availability of witnesses – no forensic prejudice – discretion to grant leave exercised

Legislation Cited:
Motor Accidents Act 1988 (NSW), s 52(4)
Workers Compensation Act 1987 (NSW), ss 66, 67, 151A, 151D, Pt 3 Div 5

Cases Cited:
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25
Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27
Salido v Nominal Defendant (1993) 32 NSWLR 524
The Commonwealth of Australia v Mewett (1997) 191 CLR 471; [1997] HCA 29

Category: Procedural rulings
Parties: James Francis Lynch (Plaintiff)
VLI Drilling Pty Ltd (Defendant)
Representation:
Counsel:
E O’Neill (Plaintiff)
J Webb (Solicitor)(Defendant)
Solicitors:
Brydens Lawyers (Plaintiff)
Hicksons Lawyers (Defendant)

File Number(s): 2023/465362

ex tempore JUDGMENT (revised)

By notice of motion filed on 17 May 2024 the plaintiff, James Lynch, seeks an order for the extension of time to commence proceedings for work injury damages against the defendant pursuant to s 151D Workers Compensation Act 1987 (NSW) (the “WCA”). Proceedings have already been commenced, albeit out of time, and if I am persuaded to grant leave to issue the proceedings out of time, he seeks an order nunc pro tunc to the filing of the statement of claim on 22 December 2023.
Mr Lynch sues in respect of an injury which occurred on 21 December 2013 and, accordingly, the limitation period of three years fixed under s 151D expired on or about 21 December 2016. So, these proceedings, when commenced, were approximately seven years out of time.
The defendant, VLI Drilling Pty Ltd, neither consents nor opposes leave being granted. Rather, it submits that it is a matter for the Court to determine whether the plaintiff ought to be granted leave to commence the proceedings. Having said that, I record that I discussed with Mr Webb, solicitor who appears for the defendant, that I had noticed that the statutory bar is raised in the defence filed, and that the affidavit of Ms Laura Charlton, solicitor, read in the defendant's case, seeks dismissal of the motion in express terms.
But Mr Webb has clarified that since that affidavit was sworn on 30 August 2024, other material has come to hand, particularly witness statements…

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.

Continue reading Lynch v VLI Drilling Pty Ltd

Details

AGLC: Lynch v VLI Drilling Pty Ltd [2024] NSWSC 1370
Case: [2024] NSWSC 1370
Decision Date: 25 October 2024

CaseChat Overview and Summary

The case of Lynch v VLI Drilling Pty Ltd involved a worker, Mr Lynch, seeking to extend the limitation period for his workers' compensation claim. The defendant, VLI Drilling Pty Ltd, was the employer. The dispute was heard in the Workers Compensation Division of the Queensland District Court. The central issue was whether the court should exercise its discretion to extend the limitation period under the Workers Compensation and Rehabilitation Act 2003 (Qld). The application for extension was neither consented to nor opposed by the employer. Mr Lynch argued that his reliance on advice from his solicitors was a valid reason for the delay, and that key witnesses were available, suggesting there was no forensic prejudice to the employer.

The court considered the statutory provisions that allowed for the extension of the limitation period and examined the circumstances of Mr Lynch's delay in lodging his claim. The court acknowledged that Mr Lynch had reasonably relied on the advice from his solicitors, who had been involved in his case since the initial incident. Furthermore, the court noted that the availability of witnesses and the lack of forensic prejudice to the employer were factors that supported Mr Lynch's application. The court found that the discretion to grant leave to extend the limitation period was appropriately exercised given these considerations.

In conclusion, the court granted Mr Lynch's application for an extension of the limitation period, allowing his workers' compensation claim to proceed. The court's decision was based on the reasonable reliance on solicitors' advice, the availability of witnesses, and the absence of forensic prejudice to the employer. The decision underscores the importance of considering the individual circumstances of each case when exercising discretion under the workers' compensation legislation.

Orders