Milanko v Watpac Pty Ltd - [2021] NSWSC 452

Supreme Court

New South Wales

Medium Neutral Citation: Milanko v Watpac Pty Ltd [2021] NSWSC 452
Hearing dates: 30 April 2021
Date of orders: 30 April 2021
Decision date: 30 April 2021
Jurisdiction: Common Law
Before: Schmidt AJ
Decision:
(1) Mr Milanko is granted leave to commence these proceedings against the Nominal Insurer nunc pro tunc.
(2) Costs of the motion be costs in the cause.

Catchwords:
WORKERS COMPENSATION – Limitation period – Leave sought for extension of time – s 151D of the Workers Compensation Act 1987 (NSW) – Where employer placed in receivership and later went into liquidation – Where claims pursued diligently - No prejudice flowing from grant of leave – Leave granted

Legislation Cited:
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Limitation Act 1969 (NSW) ss 50C, 50D, Pt 2 Div 6
Workers Compensation Act 1987 (NSW) ss 66A, 151D, 162
Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 282

Cases Cited:
Brisbane South Regional Health Authority Taylor (1996) 186 CLR 541
Hole v Gregory Ronald Lyons trading as Greg Lyons Building Constructions [2020] NSWSC 102
Itex Graphix Pty Limited v Elliott 54 NSWLR 207; [2002] NSWCA 104
Salido v Nominal Defendant (1993) 32 NSWLR 524)

Category: Principal judgment
Parties: Dragan Milanko (Plaintiff)
1st Defendant: Watpac Construction Pty Ltd
2nd Defendant: Concrete Structures Group Pty Ltd
3rd Defendant: Workers Compensation Nominal Insurer
Representation:
Counsel:
Mr J Dodd (Plaintiff
Mr A Combe (Third Defendant)
Solicitors:
NSW Compensation Lawyers (Plaintiff)
Solicitors: Landers & Rogers Lawyers (First Defendant)
Solicitors: McInnes Wilson (Second Defendant)
Solicitors Hicksons (Newcastle) (Third Defendant)

File Number(s): 2019/140941

Judgment

Mr Milanko brought these proceedings in May 2019 against Watpac Pty Ltd, seeking damages for injuries which he claimed he suffered, while working at a building site which was under its control, he then being employed by Conbuild Services Pty Limited. Watpac filed a defence in April 2020.
Mr Milanko later joined Concrete Structures Group Pty Ltd, who he claims had been engaged to supply and install formwork and place and finish concrete at the site where he was injured, as well as the Workers Compensation Nominal Insurer, as defendants. The Nominal Insurer because Conbuild Services had gone into liquidation, bringing into operation s 162 of the Workers Compensation Act 1987 (NSW). They have both filed defences to Mr Milanko’s 3^rd amended statement of claim.
A cross claim has also been filed by the Nominal Insurer, naming Watpac Pty Ltd and Concrete Structures Group Pty Limited as cross defendants and seeking contribution from them under the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).
In its September 2020 defence the Nominal Insurer relied, amongst other things, on s 151D of the Workers Compensation Act to defend Mr Milanko’s claim, the proceedings having been commenced more than 3 years after he was injured.
A limitation defence was not relied on by Watpac or Concrete Structures Group, that being regulated by Division 6 of Part 2 of the Limitation Act 1969 (NSW), with s 50C…

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 Milanko v Watpac Pty Ltd

Details

AGLC: Milanko v Watpac Pty Ltd [2021] NSWSC 452
Case: [2021] NSWSC 452
Decision Date: 30 April 2021

CaseChat Overview and Summary

The case of Milanko v Watpac Pty Ltd involved the plaintiff, Milanko, seeking an extension of the limitation period to pursue a claim for workers compensation against the defendant, Watpac Pty Ltd. The dispute arose in the context of Watpac being placed in receivership and subsequently going into liquidation. The plaintiff argued that the limitation period for filing a workers compensation claim should be extended, pursuant to section 151D of the Workers Compensation Act 1987 (NSW). The court was required to determine whether the circumstances justified an extension of the statutory limitation period, particularly in light of the employer's insolvency.

The primary legal issue before the court was whether the statutory limitation period for filing a workers compensation claim should be extended given the employer's insolvency. The court considered whether the plaintiff's claims had been pursued diligently and whether there was any prejudice to the defendant if leave for an extension of time was granted. The plaintiff argued that the employer's insolvency had impeded the timely filing of the claim, while the defendant contended that the plaintiff had not acted with the requisite diligence.

The court found that the plaintiff had diligently pursued their claims and that there was no prejudice to the defendant if leave was granted for an extension of time. The court noted that the employer's insolvency was an exceptional circumstance warranting consideration under section 151D of the Workers Compensation Act 1987 (NSW). Given the diligent efforts of the plaintiff and the absence of prejudice to the defendant, the court granted leave for the extension of the limitation period. This decision allowed the plaintiff to proceed with their workers compensation claim despite the employer's insolvency.

Orders