Van Der Borght v Memjet North Ryde Pty Ltd - [2018] NSWDC 346

District Court

New South Wales

Medium Neutral Citation: Van Der Borght v Memjet North Ryde Pty Ltd [2018] NSWDC 346
Hearing dates: 25 October 2018
Date of orders: 27 November 2018
Decision date: 27 November 2018
Jurisdiction: Civil
Before: Judge Levy SC
Decision:
1. Pursuant to s 151D of the Workers’ Compensation Act 1987, the plaintiff is granted leave, nunc pro tunc, to file a statement of claim seeking work injury damages from the defendant for injuries he suffered in the defendant’s employ between 24 April 2013 and 10 September 2014;

2. It is noted that statement of claim has already been filed on 20 April 2018;

3. Those portions of the defendant’s defence comprising paragraphs 3, 4, 5, 6, 11 and the word “Injury” appearing in paragraph 7, are struck out;

4. The defendant is to pay the plaintiff’s costs of the notice of motion filed on 2 July 2018;

5. The exhibits may be returned;
6. Liberty to apply on 7 days’ notice if further or other orders are required.
Catchwords: LIMITATION OF ACTIONS – application by plaintiff pursuant to s 151D of Workers’ Compensation Act 1987 – whether service of plaintiff’s pre-filing statement was validly served by email on solicitor representing the defendant and its insurer
Legislation Cited: Evidence Act 1995, s 67
Uniform Civil Procedure Rules 2005, r 10.5, r 10.6
Workers’ Compensation Act 1987, s 74, s 151D, s 151DA
Workers’ Compensation Commission Rules 2011, r 1.4, r 1.6, r 8.2, r 8.3, r 8.4, r 17.3
Workplace Injury Management and Workers’ Compensation Act 1998, s 4, s 281, s 282, s 311, s 313, s 315, s 315(1), s 316, s 317, s 318
Cases Cited: Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Bull v Attorney General (NSW) [1913] HCA 60; (1913) 17 CLR 370
Commonwealth of Australia v Shaw [2006] NSWCA 209; (2006) 66 NSWLR 325
Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648
Esso Australia Pty Ltd v The Australian Workers’ Union (2017) 92 ALJR 106
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Gower v State of New South Wales [2018] NSWCA 132
Hall v Jones (1942) 42 SR(NSW) 203
Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128
Howley v Principal Health Care Finance Pty Ltd [2014] NSWCA 447
Itex Graphix Ltd v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207
Paper Coaters Pty Limited v Jessop [2009] NSWCA 1
Repatriation Commission v Hawkins (1993) 117 ALR 225
Salvation Army (South Australia Property Trust) v Randle [2008] NSWCA 347
Sea Coatings (Australia) Pty Ltd v Pascoe [2008] NSWCA 54
Smith v Grant [2006] NSWCA 244
Strasburger Enterprises Pty Ltd trading as Quix Food Stores v Serna [2008] NSWCA 354
Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275
X v Commonwealth…

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: [2018] NSWDC 346
Decision Date: 27 November 2018

CaseChat Overview and Summary

The case of Van Der Borght v Memjet North Ryde Pty Ltd arose from a dispute regarding the validity of the service of a pre-filing statement in a workers' compensation claim. The plaintiff sought to file a statement of claim under section 151D of the Workers’ Compensation Act 1987, after the limitation period had expired. The key issue was whether the pre-filing statement was validly served by email to the defendant's solicitor, who was also representing the defendant's insurer.

The court was required to determine whether the service of the pre-filing statement via email complied with the statutory requirements, particularly in the context of the workers' compensation claim. It was also necessary to examine if the service of the statement on the defendant's solicitor was sufficient to meet the legal standards for such communications.

The court found that the service of the pre-filing statement by email to the defendant's solicitor was valid. The email was sent to the solicitor's business email address, which was listed in the records and known to the plaintiff. The court concluded that this method of service was acceptable under the circumstances and consistent with the statutory provisions. Consequently, the court granted the plaintiff leave to file the statement of claim, despite the limitation period having expired. The court also ordered the striking out of certain portions of the defendant’s defence and directed the defendant to pay the plaintiff's costs associated with the notice of motion.

Orders

Orders of the court

1. Pursuant to s 151D of the Workers’ Compensation Act 1987, the plaintiff is granted leave, nunc pro tunc, to file a statement of claim seeking work injury damages from the defendant for injuries he suffered in the defendant’s employ between 24 April 2013 and 10 September 2014;

2. It is noted that statement of claim has already been filed on 20 April 2018;

3. Those portions of the defendant’s defence comprising paragraphs 3, 4, 5, 6, 11 and the word “Injury” appearing in paragraph 7, are struck out;

4. The defendant is to pay the plaintiff’s costs of the notice of motion filed on 2 July 2018;

5. The exhibits may be returned;

6. Liberty to apply on 7 days’ notice if further or other orders are required.

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:	Van Der Borght v Memjet North Ryde Pty Ltd [2018] NSWDC 346
Hearing dates:	25 October 2018
Date of orders:	27 November 2018
Decision date:	27 November 2018
Jurisdiction:	Civil
Before:	Judge Levy SC
Decision:	1. Pursuant to s 151D of the Workers’ Compensation Act 1987, the plaintiff is granted leave, nunc pro tunc, to file a statement of claim seeking work injury damages from the defendant for injuries he suffered in the defendant’s employ between 24 April 2013 and 10 September 2014; 2. It is noted that statement of claim has already been filed on 20 April 2018; 3. Those portions of the defendant’s defence comprising paragraphs 3, 4, 5, 6, 11 and the word “Injury” appearing in paragraph 7, are struck out; 4. The defendant is to pay the plaintiff’s costs of the notice of motion filed on 2 July 2018; 5. The exhibits may be returned; 6. Liberty to apply on 7 days’ notice if further or other orders are required.
Catchwords:	LIMITATION OF ACTIONS – application by plaintiff pursuant to s 151D of Workers’ Compensation Act 1987 – whether service of plaintiff’s pre-filing statement was validly served by email on solicitor representing the defendant and its insurer
Legislation Cited:	Evidence Act 1995, s 67 Uniform Civil Procedure Rules 2005, r 10.5, r 10.6 Workers’ Compensation Act 1987, s 74, s 151D, s 151DA Workers’ Compensation Commission Rules 2011, r 1.4, r 1.6, r 8.2, r 8.3, r 8.4, r 17.3 Workplace Injury Management and Workers’ Compensation Act 1998, s 4, s 281, s 282, s 311, s 313, s 315, s 315(1), s 316, s 317, s 318
Cases Cited:	Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364 Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 Bull v Attorney General (NSW) [1913] HCA 60; (1913) 17 CLR 370 Commonwealth of Australia v Shaw [2006] NSWCA 209; (2006) 66 NSWLR 325 Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 Esso Australia Pty Ltd v The Australian Workers’ Union (2017) 92 ALJR 106 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Gower v State of New South Wales [2018] NSWCA 132 Hall v Jones (1942) 42 SR(NSW) 203 Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 Howley v Principal Health Care Finance Pty Ltd [2014] NSWCA 447 Itex Graphix Ltd v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207 Paper Coaters Pty Limited v Jessop [2009] NSWCA 1 Repatriation Commission v Hawkins (1993) 117 ALR 225 Salvation Army (South Australia Property Trust) v Randle [2008] NSWCA 347 Sea Coatings (Australia) Pty Ltd v Pascoe [2008] NSWCA 54 Smith v Grant [2006] NSWCA 244 Strasburger Enterprises Pty Ltd trading as Quix Food Stores v Serna [2008] NSWCA 354 Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 X v Commonwealth…