Saric v Holdmark (Aust) Pty Limited - [2011] NSWDC 82

District Court

New South Wales

Medium Neutral Citation: Saric v Holdmark (Aust) Pty Limited & Ors [2011] NSWDC 82
Hearing dates: 7 July 2011
Decision date: 12 July 2011
Jurisdiction: Civil
Before: Judge M. Sidis
Decision:
The proceedings are struck out.
To the extent of its entitlement, the plaintiff is to pay the defendant's costs of the proceedings, including the costs of the motion filed on 21 April 2011.
The exhibits and affidavit evidence are returned

Catchwords: LIMITATIONS
Whether plaintiff's right to commence proceedings unlimited as to time
Circumstances in which prior proceedings discontinued
Whether leave to recommence should be granted ten years from the date of injury
Deterioration in condition
Absence of relevant evidence
General and actual prejudice
Legislation Cited: Law Reform Miscellaneous Provisions Act 1946
Workers Compensation Act 1987
Workers Compensation Amendment Transitional Regulation 2007
Workers Compensation Legislation Further Amendment Act 2001 No 94
Workers Compensation Regulation 2003
Workplace Injury and Management Act 1998
Cases Cited: Berowra Holdings Pty Limited v Gordon [2006] HCA 32; (2006) 225 CLR 364
Itex Graphics Pty Limited v Elliott [2002] NSWCA 104
Texts Cited: N/A
Category: Interlocutory applications
Parties: Zaivko Saric (Plaintiff/Applicant)
Holdmark (Aust) Pty Limited (First Defendant/First Respondent)
Workers Compensation Nominal Insurer (Second Defendant/Second Respondent)
Representation: Mr J. Anderson (Plaintiff)
Mr H. Halligan (Both Defendants/ Respondents)
Martin Bell & Co. (Plaintiff)
Hicksons Lawyers (Both Defendants/ Respondents)

File Number(s): 2011/00056208
Publication restriction: No

Judgment

In this matter the plaintiff was injured on a building site on 30 August 2001. He initially commenced proceedings for common law damages against his employer, Holdmark (Australia) Pty Limited, and against the head contractor on the site, H Haserati and Co Pty Limited, on 23 November 2001.

On 26 July 2004 the plaintiff discontinued the proceedings against Holdmark. After a protracted hearing in 2005 and 2006 her Honour Judge Gibson published her judgment on the claim against Haserati on 14 March 2006. She found against the plaintiff on the issue of liability.

In dealing with issues of apportionment arising under s 151Z of the Workers Compensation Act 1987 her Honour expressed an opinion that there was negligence on the part of Holdmark that contributed to the plaintiff's accident and injury.

On 6 July 2007 the plaintiff claimed lump sum compensation against Holdmark. The claim was initially rejected on the basis that pursuant to s 151(A)(3A) of the Workers Compensation Act 1987 the plaintiff elected to pursue a claim for damages on 23 November 2001 and could therefore not make any further claim, that he had not established that he had suffered whole person impairment of at least 15% and further that he was out of time to bring his claim.

The plaintiff continued to pursue his claim for lump sum compensation, the main issue between the parties appearing to be whether the 15% threshold was met. After progressing through claims and dispute resolution processes, the plaintiff finally secured a determination that his whole person impairment was 15% pursuant to a certificate issued on 30 November 2009.…

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 Saric v Holdmark (Aust) Pty Limited

Details

AGLC: Saric v Holdmark (Aust) Pty Limited [2011] NSWDC 82
Case: [2011] NSWDC 82
Decision Date: 12 July 2011

CaseChat Overview and Summary

The plaintiff, Saric, brought a claim against the defendant, Holdmark, seeking damages for injuries sustained in a workplace incident. The case was before the court to determine whether the plaintiff's right to commence proceedings was unlimited as to time, particularly in circumstances where prior proceedings had been discontinued. The court had to consider whether leave to recommence should be granted ten years after the date of the injury, and if so, whether the plaintiff's condition had deteriorated to the point where it was unjust to allow the claim to proceed. The plaintiff also argued that there was no general or actual prejudice to the defendant.

The court examined the principles governing the limitation of actions, particularly the concept of a statutory bar. It assessed whether the plaintiff's delay in recommencing proceedings was unreasonable and whether the defendant had suffered prejudice as a result. The court considered the evidence regarding the plaintiff's condition at the time the proceedings were discontinued and at the time of the application to recommence. The court found that the plaintiff had failed to provide relevant evidence to support the claim that their condition had deteriorated. Additionally, the court found that the absence of prejudice to the defendant was not sufficient to warrant the granting of leave to recommence the proceedings. The court concluded that the delay was unreasonable and that the plaintiff had failed to demonstrate any relevant change in their condition that would justify the recommencement of the proceedings.

The court struck out the plaintiff's proceedings, ordering that the plaintiff pay the defendant's costs of the proceedings, including the costs of the motion filed on 21 April 2011. The exhibits and affidavit evidence were to be returned to the parties. This decision underscored the importance of timely action in pursuing legal claims and the stringent requirements for allowing a claim to proceed after a significant delay.

Orders

Orders of the court

The proceedings are struck out.

To the extent of its entitlement, the plaintiff is to pay the defendant's costs of the proceedings, including the costs of the motion filed on 21 April 2011.

The exhibits and affidavit evidence are returned

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:	Saric v Holdmark (Aust) Pty Limited & Ors [2011] NSWDC 82
Hearing dates:	7 July 2011
Decision date:	12 July 2011
Jurisdiction:	Civil
Before:	Judge M. Sidis
Decision:	The proceedings are struck out. To the extent of its entitlement, the plaintiff is to pay the defendant's costs of the proceedings, including the costs of the motion filed on 21 April 2011. The exhibits and affidavit evidence are returned
Catchwords:	LIMITATIONS Whether plaintiff's right to commence proceedings unlimited as to time Circumstances in which prior proceedings discontinued Whether leave to recommence should be granted ten years from the date of injury Deterioration in condition Absence of relevant evidence General and actual prejudice
Legislation Cited:	Law Reform Miscellaneous Provisions Act 1946 Workers Compensation Act 1987 Workers Compensation Amendment Transitional Regulation 2007 Workers Compensation Legislation Further Amendment Act 2001 No 94 Workers Compensation Regulation 2003 Workplace Injury and Management Act 1998
Cases Cited:	Berowra Holdings Pty Limited v Gordon [2006] HCA 32; (2006) 225 CLR 364 Itex Graphics Pty Limited v Elliott [2002] NSWCA 104
Texts Cited:	N/A
Category:	Interlocutory applications
Parties:	Zaivko Saric (Plaintiff/Applicant) Holdmark (Aust) Pty Limited (First Defendant/First Respondent) Workers Compensation Nominal Insurer (Second Defendant/Second Respondent)
Representation:	Mr J. Anderson (Plaintiff) Mr H. Halligan (Both Defendants/ Respondents) Martin Bell & Co. (Plaintiff) Hicksons Lawyers (Both Defendants/ Respondents)
File Number(s):	2011/00056208
Publication restriction:	No