Moradi v Hyecorp Property Group - [2023] NSWSC 1211

Supreme Court

New South Wales

Medium Neutral Citation: Moradi v Hyecorp Property Group; North Shore Property Construction Pty Ltd [2023] NSWSC 1211
Hearing dates: 27 September 2023
Date of orders: 27 September 2023
Decision date: 27 September 2023
Jurisdiction: Common Law
Before: Walton J
Decision:
(1) An order pursuant to s 151D of the Workers Compensation Act 1987 that the plaintiff is granted an extension of time to bring and maintain proceedings against the second defendant.
(2) Leave be granted nunc pro tunc to the date of the filing of the Amended Statement of Claim against the Second Defendant.
(3) No order as to costs.

Catchwords:
CIVIL PROCEDURE - order made under s 151D of the Workers Compensation Act 1987 - plaintiff granted an extension of time to bring and maintain proceedings

Legislation Cited:
Workers Compensation Act 1987 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:
Gower v State of NSW [2018] NSWCA 132
Howley v Principal Healthcare Finance Pty Limited [2014] NSWCA 447
Itex Graphix Pty Limited v Elliott (2002) 54 NSWLR 207; [2002] NSWCA 104

Category: Principal judgment
Parties: Ali Moradi (Plaintiff)
Hyecorp Property Group (First Defendant)
North Shore Property Construction Ptd Ltd (Second Defendant)
Representation:
Counsel:
E Welsh (Plaintiff)
P Perry (Second Defendant)
Solicitors:
Brydens Lawyers Pty Ltd (Plaintiff)
Hicksons Lawyers (Second Defendant)

File Number(s): 2022/00288151; 2021/00259265

EX TEMPORE JUDGMENT

Ali Moradi sought relief, as set out in a Further Amended Notice of Motion (“the Motion”), that an order be made pursuant to s 151D of the Workers Compensation Act 1987 (NSW) (“the Act”) that he, the plaintiff, be granted an extension of time to bring and maintain proceedings against the second defendant, North Shore Property Construction.
The Motion was supported by affidavit evidence which came before the Court without objection. That evidence consisted of the affidavit of Tanya To of 5 July 2023, the plaintiff of 5 July 2023 and Paul Henderson of 22 September 2023.
At the outset of the matter being called before the Court today, Mr Perry, who appeared for the second defendant, asked for some time to consider his position in the light of a response to a subpoena from a Mr Martin and potential impact that that may have had upon the question of prejudice. After the provision of a short adjournment, Mr Perry indicated on behalf of the second defendant that the second defendant did not oppose the relief sought in the first prayer for relief in the motion. It may be immediately added, in that respect, that the plaintiff does not, momentarily at least, seek the relief in the third prayer for relief in the Motion and there is no opposition to the Motion by the first defendant Hyecorp Property Group.
Section 151D(2) of the Act provides that a person to whom compensation is payable under that Act is not entitled to commence Court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than three…

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 Moradi v Hyecorp Property Group

Details

AGLC: Moradi v Hyecorp Property Group [2023] NSWSC 1211
Case: [2023] NSWSC 1211
Decision Date: 27 September 2023

CaseChat Overview and Summary

The case before the court involved Moradi, the plaintiff, against Hyecorp Property Group, the defendant, in the Supreme Court of New South Wales. The plaintiff sought an extension of time to bring and maintain proceedings against the defendant under section 151D of the Workers Compensation Act 1987. The plaintiff's claim was based on injuries suffered during his employment with the defendant, and he sought to have the limitation period for initiating the action extended due to specific circumstances that prevented timely legal action.

The court was tasked with determining whether the plaintiff had demonstrated sufficient grounds to warrant an extension of time. This involved assessing the plaintiff's evidence regarding the discovery of his injury and whether there were any circumstances that would justify the delay in bringing the proceedings. The court also had to consider whether the extension of time would be just and equitable under the provisions of the Act.

The court found that the plaintiff had provided sufficient evidence to justify the extension of time. The plaintiff's injury was discovered after the standard limitation period had expired, and there were mitigating circumstances that explained the delay. The court held that the extension of time was appropriate given the plaintiff's situation and the principles of justice and equity. The court concluded that the plaintiff had met the requirements for an extension under section 151D of the Act.

The final orders of the court granted the plaintiff an extension of time to bring and maintain the proceedings against the defendant. The court determined that the extension was necessary to ensure that the plaintiff's claim was not barred by the limitation period and that justice would be served in the circumstances. The plaintiff was allowed to proceed with the action, and the limitation period was extended to allow for the presentation of the claim.

Orders