Mulvihill v Coles Supermarkets Australia Pty Ltd

The plaintiff, Mulvihill, brought an application in the District Court of New South Wales against Coles Supermarkets Australia Pty Ltd, his former employer, seeking to have his claim for workers' compensation assessed. The dispute centred around the applicability of section 151D of the Workers Compensation Act 1987 (NSW) which deals with the leave requirement for claims involving the presumption of prejudice. The plaintiff argued that the employer had failed to provide a reasonable excuse for its delay in responding to his claim, thus invoking the presumption of prejudice under the statute.

The court was required to determine whether the employer's delay in providing a response to the plaintiff's claim constituted a failure to give a reasonable excuse within the meaning of section 151D(2) of the Act. Furthermore, the court had to consider whether this failure led to a presumption of prejudice under section 151D(3) of the Act, and consequently, whether the plaintiff was entitled to proceed with his claim without the need for separate leave under section 151D(1).

In delivering the judgment, the court found that the employer had not provided a reasonable excuse for its delay, thus triggering the presumption of prejudice under section 151D(3). The court held that the employer's conduct amounted to a failure to comply with the statutory requirements, leading to the plaintiff being presumed prejudiced. As a result, the plaintiff was entitled to proceed with his claim without the necessity of seeking separate leave. The court granted the plaintiff leave to proceed with his workers' compensation claim, in line with the operation of section 151D of the Workers Compensation Act 1987 (NSW). The costs of the proceedings were to be costs in the cause.