McLawrence v Ashton Coal Operations Pty Limited - [2016] NSWDC 355

District Court

New South Wales

Medium Neutral Citation: McLawrence v Ashton Coal Operations Pty Limited [2016] NSWDC 355
Hearing dates: 8 December 2016
Date of orders: 15 December 2016
Decision date: 15 December 2016
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Pursuant to s 151D(2) Workers Compensation Act 1987 (NSW) grant leave to the plaintiff to commence proceedings for damages in respect to the injuries he suffered on 24 July 2011, such proceedings to be by way of statement of claim filed in these proceedings on or before 12 January 2017.
(2) Costs to be costs in the cause.
(3) Proceedings listed for directions before the Registrar on Thursday 19 January 2017.

Catchwords: WORKERS COMPENSATION – s 151D Workers Compensation Act 1987 (NSW) – leave to commence proceedings more than three years after injury – adequacy of explanation for delay – extension of time granted
Legislation Cited: Limitation Act 1999 (NSW), s 60E
Workers Compensation Act 1987 (NSW), ss 80, 151A, 151D, 151DA, 151G, 151H, 151I, 151K, 151KA and Schedule 6, Part 18
Workers Compensation Legislation Further Amendment Act 2001 (NSW)
Cases Cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Coal & Allied Operations Pty Ltd t/as Hunter Valley Operations (Howick Mine) v Stringer [2003] NSWCA 271
Hornby v The Nominal Defendant [2007] NSWCA 222
Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447
Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207
Nominal Defendant v Harris (2011) 57 MVR 492
Smith v Grant [2006] NSWCA 244
Strasburger Enterprises Pty Ltd (t/as Quix Food Stores) v Serna [2008] NSWCA 354
Yu v Spiers [2001] NSWCA 373
Category: Procedural and other rulings
Parties: Plaintiff: Neil Andrew McLawrence
Defendant: Ashton Coal Operations Pty Limited
Representation:
Counsel:
Plaintiff: Mr P M O’Rourke
Defendant: Mr T Rowles
Solicitors:
Plaintiff: Carroll & O’Dea
Defendant: Hicksons

File Number(s): 2016/233723
Publication restriction: None

Judgment

The application before the court

The plaintiff, by summons filed on 28 July 2016, seeks leave to extend time under s 151D Workers Compensation Act 1987 (NSW) (“the Act”) to commence proceedings for damages for injuries he suffered on 24 July 2011 while employed as an underground mine technician at the Ashton Colliery, a coal mine in New South Wales.
There are specific provisions for “coalminers”, who are persons employed as a “worker employed in or about a mine” (Schedule 6, Part 18, cl 1 and 3 of the Act) which are discussed in more detail below.
The plaintiff relies upon his affidavit of 9 September 2016, upon which he was cross-examined. Two affidavits by the plaintiff’s solicitor, Mr Cockle, sworn on 28 July and 5 December 2016, are also relied upon.
No evidence on any issue (including prejudice) was tendered on behalf of the defendant.

The relevant legislation

It is not in dispute that the plaintiff was a “coalminer” (a “worker employed in or about a mine”: Sch 6, Part 18, cl 1 and 3 of the Act). This means that the plaintiff’s right to bring…

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: [2016] NSWDC 355
Decision Date: 15 December 2016

CaseChat Overview and Summary

The plaintiff, McLawrence, brought an action against Ashton Coal Operations Pty Limited for damages arising from injuries sustained during his employment on 24 July 2011. The dispute centred around the commencement of proceedings more than three years after the injury, in contravention of s 151D of the Workers Compensation Act 1987 (NSW). The plaintiff sought an extension of time to bring the action, arguing that there was an adequate explanation for the delay.

The central legal issue before the court was whether the plaintiff's explanation for the delay in commencing proceedings was sufficient to warrant an extension of time under s 151D(2) of the Act. This required the court to assess the adequacy of the plaintiff's explanation, taking into account factors such as the reasonableness of the delay, the impact on the defendant, and any mitigating circumstances. The court had to determine if the plaintiff had acted with due diligence and whether the delay had caused any prejudice to the defendant's ability to defend the action.

The court found that the plaintiff's explanation for the delay was adequate, considering the circumstances presented. The plaintiff had demonstrated that the delay was not due to any negligence or lack of diligence on their part but rather due to circumstances beyond their control. The court was satisfied that the delay had not prejudiced the defendant's ability to defend the action, and therefore, granted the plaintiff's application for an extension of time. Consequently, the court ordered that leave be granted to the plaintiff to commence proceedings by filing a statement of claim on or before 12 January 2017.

In light of the above, the court ordered that leave be granted to the plaintiff to commence proceedings, with costs to be costs in the cause, and scheduled a directions hearing for 19 January 2017. This decision allows the plaintiff to pursue their claim for damages despite the delay, provided they adhere to the specified timeframe.

Orders

Orders of the court

(1) Pursuant to s 151D(2) Workers Compensation Act 1987 (NSW) grant leave to the plaintiff to commence proceedings for damages in respect to the injuries he suffered on 24 July 2011, such proceedings to be by way of statement of claim filed in these proceedings on or before 12 January 2017.

(2) Costs to be costs in the cause.

(3) Proceedings listed for directions before the Registrar on Thursday 19 January 2017.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	McLawrence v Ashton Coal Operations Pty Limited [2016] NSWDC 355
Hearing dates:	8 December 2016
Date of orders:	15 December 2016
Decision date:	15 December 2016
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Pursuant to s 151D(2) Workers Compensation Act 1987 (NSW) grant leave to the plaintiff to commence proceedings for damages in respect to the injuries he suffered on 24 July 2011, such proceedings to be by way of statement of claim filed in these proceedings on or before 12 January 2017. (2) Costs to be costs in the cause. (3) Proceedings listed for directions before the Registrar on Thursday 19 January 2017.
Catchwords:	WORKERS COMPENSATION – s 151D Workers Compensation Act 1987 (NSW) – leave to commence proceedings more than three years after injury – adequacy of explanation for delay – extension of time granted
Legislation Cited:	Limitation Act 1999 (NSW), s 60E Workers Compensation Act 1987 (NSW), ss 80, 151A, 151D, 151DA, 151G, 151H, 151I, 151K, 151KA and Schedule 6, Part 18 Workers Compensation Legislation Further Amendment Act 2001 (NSW)
Cases Cited:	Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Coal & Allied Operations Pty Ltd t/as Hunter Valley Operations (Howick Mine) v Stringer [2003] NSWCA 271 Hornby v The Nominal Defendant [2007] NSWCA 222 Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447 Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 Nominal Defendant v Harris (2011) 57 MVR 492 Smith v Grant [2006] NSWCA 244 Strasburger Enterprises Pty Ltd (t/as Quix Food Stores) v Serna [2008] NSWCA 354 Yu v Spiers [2001] NSWCA 373
Category:	Procedural and other rulings
Parties:	Plaintiff: Neil Andrew McLawrence Defendant: Ashton Coal Operations Pty Limited
Representation:	Counsel: Plaintiff: Mr P M O’Rourke Defendant: Mr T Rowles Solicitors: Plaintiff: Carroll & O’Dea Defendant: Hicksons
File Number(s):	2016/233723
Publication restriction:	None