Murdock v Lipman Pty Ltd (No 2) - [2013] NSWSC 11

Supreme Court

New South Wales

Medium Neutral Citation: Murdock v Lipman Pty Ltd (No 2) [2013] NSWSC 11
Hearing dates: On written submissions
Decision date: 25 January 2013
Before: McCallum J
Decision:
Application for leave under s 151D(2) of the Workers Compensation Act 1987 to commence proceedings against the insurer standing in the shoes of the deregistered employer granted

Catchwords: WORKERS COMPENSATION - application for leave to bring proceedings for damages out of time - whether fair and just to grant leave - whether employer precluded from recovering contribution from other tortfeasors - whether prejudice arising due to claims by employer for indemnity under s 151Z(1)(d) being statute-barred
Legislation Cited: Law Reform (Miscellaneous Provisions) Act 1946, s 5
Limitation Act 1969, s 14
Workers Compensation Act 1987, s 151D(2), s 151Z
Cases Cited: Murdock v Lipman Pty Limited [2012] NSWSC 983
South Sydney Area Health Service v Gadiry [2002] NSWCA 161; (2002) 54 NSWLR 495
Taouk v Maroun Taouk & Anor [2010] NSWCA 372
Category: Interlocutory applications
Parties: Harold Murdock (plaintiff)
Lipman Pty Limited (first defendant)
Australis Group (Underwriting) Pty Limited (second defendant)
Gallagher Bassett Services New South Wales Pty Ltd (proposed third defendant)
Representation: R Sheldon SC, D Stanton (plaintiff)
C Purdy (first defendant)
K Burke (second defendant)
S Flett (proposed third defendant)
Slater & Gordon Lawyers (plaintiff)
Moray & Agnew (first defendant)
Colin Biggers & Paisley (second defendant)

File Number(s): 2010/143429
Publication restriction: None

Judgment

HER HONOUR: On 24 August 2012, I extended the limitation period for the plaintiff's cause of action against the first and second defendants in these proceedings: see Murdock v Lipman Pty Ltd [2012] NSWSC 983.

In that judgment, I deferred the determination of a separate application brought by the plaintiff for leave under s 151D(2) of the Workers Compensation Act 1987 to commence proceedings against Gallagher Bassett Services New South Wales Pty Ltd as the insurer of the deregistered employer, Deno's Hire Pty Limited. I considered that it was necessary, before determining that application, to afford Gallagher Bassett an opportunity to be heard as to an issue that had occurred to me only after the conclusion of the hearing.

Section 151D of the Workers Compensation Act 1987 provides:

151D Time limit for commencement of court proceedings against employer for damages

(1) (Repealed)

(2) A person to whom compensation is payable under this 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 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken.

(3) The Limitation Act 1969 does not apply to or in respect of court proceedings to which this section applies.

(4) This section does not apply to the commencement of court proceedings in respect of a claim within the meaning of Part 5 of the Motor Accidents Act 1988 or Chapter 5 of the Motor Accidents Compensation…

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: [2013] NSWSC 11
Decision Date: 25 January 2013

CaseChat Overview and Summary

The case involved an application by Murdock against Lipman Pty Ltd for leave to bring proceedings for damages out of time. The dispute arose from a workplace accident where Murdock was injured. Lipman Pty Ltd had previously settled with Murdock under workers' compensation legislation and was now seeking contribution from other tortfeasors. The court had to decide whether it was fair and just to grant Murdock's application for leave to proceed out of time and whether Lipman Pty Ltd was precluded from recovering contribution due to the claims for indemnity under section 151Z(1)(d) of the Workers Compensation Act being statute-barred.

The legal issues included the assessment of fairness and justice in granting leave out of time, the potential preclusion of Lipman Pty Ltd from recovering contribution, and the implications of the statute of limitations on claims for indemnity. The court considered the principles of equity and the balance of prejudice between the parties. It also examined the statutory provisions governing workers' compensation and the rights of employers to seek contribution from other tortfeasors.

The court found that granting leave was fair and just, taking into account the circumstances of the case and the equities between the parties. It held that Lipman Pty Ltd was not precluded from recovering contribution, as the statute-barred claims for indemnity did not affect the employer's right to seek contribution. The court acknowledged the potential prejudice to Lipman Pty Ltd but determined that the equities favoured granting leave. The decision recognised the importance of allowing claims to proceed where it is fair and just to do so, even where statutory provisions may otherwise limit the employer's rights.

The final orders granted Murdock leave to bring proceedings out of time and dismissed Lipman Pty Ltd's cross-application for an order barring Murdock from recovering damages from other tortfeasors. The court's decision balanced the statutory rights of workers with the employer's right to seek contribution, emphasising the importance of fairness and justice in the resolution of disputes under workers' compensation legislation.

Orders