Malone v New South Wales National Parks and Wildlife Service

Malone (the applicant) appealed to the New South Wales Court of Appeal against a decision that denied him leave to commence proceedings out of time under section 151D(2) of the *Workers Compensation Act 1987* (NSW). The proceedings concerned a claim for personal injury allegedly sustained by the applicant while employed by the New South Wales National Parks and Wildlife Service (the respondent). The core of the dispute revolved around whether the respondent would suffer prejudice if the applicant were permitted to proceed with his claim outside the statutory limitation period.

The Court of Appeal was required to determine two primary legal issues. Firstly, it had to consider whether the primary judge erred in finding that the respondent would suffer prejudice, thereby refusing leave to commence proceedings out of time. This involved an assessment of the discretion vested in the court under section 151D(2) of the *Workers Compensation Act 1987* (NSW). Secondly, the Court of Appeal considered its own discretion under section 75A(7)-(9) of the *Supreme Court Act 1970* (NSW) to admit new evidence on appeal, specifically evidence relating to the causation of the applicant's personal injury.

In its reasoning, the Court of Appeal acknowledged the modern role of ambush and adversarial tactics in civil proceedings and incorporated components of the reasons and commentary from *Nowlan v Marson Transport Pty Ltd* [2001] NSWCA 346. The court analysed the nature of the prejudice alleged by the respondent, considering factors such as the delay in bringing the claim and the potential impact on the respondent's ability to defend the proceedings. The court also examined the admissibility and relevance of the new evidence sought to be introduced on appeal, weighing its potential to affect the outcome against the principles governing the admission of fresh evidence.

The Court of Appeal allowed the appeal, set aside the order of the primary judge, and granted the applicant leave to commence proceedings out of time. The court also made orders regarding the admission of new evidence and remitted the matter for further consideration.