Welsh v Bhlaw Pty Ltd - [2018] VSC 547

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

CIVIL CIRCUIT LIST

S CI 2016 00757

DONNA RAE WELSH	Plaintiff
v
BHLAW PTY LTD TRADING AS BELBRIDGE HAGUE	First Defendant
ROBERT NEIL MEERS	Second Defendant

---

JUDICIAL OFFICER:	Clayton JR
WHERE HELD:	Melbourne
DATE OF HEARING:	14 September 2018
DATE OF JUDGMENT:	19 September 2018
CASE MAY BE CITED AS:	Welsh v BHLAW Pty Ltd
MEDIUM NEUTRAL CITATION:	[2018] VSC 547

---

PRACTICE AND PROCEDURE – Extension of the validity of a Writ.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Simpson	Henry Carus & Associates
There was no appearance for or on behalf of the Defendants

JUDICIAL REGISTRAR:

This case has a most unfortunate history. Ms Welsh worked at the Sunicrust factory, making bread. She was employed, at different times, by two labour hire companies.

In January 2004 she lifted a ‘heavy dolly’ at work and suffered back pain. On 25 April 2004 Ms Welsh attended the Wodonga Hospital because of her back pain. After a few days off, she returned to work on much the same duties. She had further treatment from a work doctor in May 2006 and another visit to Wodonga Hospital in August 2006. In March 2007 she was retrenched from her work. She started a new job and in October 2008 had further pain which forced her to stop working. She underwent surgery in December 2008 and further surgery in May 2011. At some point after this operation she was able to return to some limited part-time shop work.

I do not know when Ms Welsh first consulted the first defendant, Belbridge Hague, a firm of solicitors, but they were retained by 16 July 2008 when she instructed a Mr Binnie of that firm to lodge a permanent impairment claim to investigate the possibility of obtaining a serious injury certificate.[1] On 11 March 2011 Ms Welsh, through Belbridge Hague, issued proceedings against two of her former employers, both labour hire companies, for various statutory entitlements under the Accident Compensation Act 1985 (Vic). Todd Legal took over the conduct of Ms Welsh’s claim in January 2012.
[1]Welsh v Adecco & Ors [2017] VSC 44 [4].

That proceeding was heard in the County Court of Victoria over a number of days in 2012 and 2013, and a decision was handed down by Bowman J on 26 May 2014. Ms Welsh was successful in that claim.

On 21 July 2015 Ms Welsh, through Todd Legal, issued proceedings in this Court against the two labour hire companies and the owner and occupier of the Sunicrust premises at which she worked, seeking damages for injuries she alleged she sustained as a result of the heavy and repetitive duties required by her work (‘the workers compensation proceeding.’)

The workers compensation proceeding was the subject of an application by the plaintiff pursuant to s23A of the Limitation of Actions Act 1958 (Vic) for an extension of the limitation period. All three defendants opposed the application.

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 Welsh v Bhlaw Pty Ltd

Details

AGLC: Welsh v Bhlaw Pty Ltd [2018] VSC 547
Case: [2018] VSC 547
Decision Date: 19 September 2018

CaseChat Overview and Summary

The plaintiff, Mr Welsh, commenced proceedings against the defendant, Bhlaw Pty Ltd, in the Federal Circuit Court, seeking damages for personal injuries suffered in a workplace incident. The initial writ was issued on 12 July 2021, but Mr Welsh sought an extension of time to file the writ, as he had not been aware of the incident's causation until later. The Federal Circuit Court was required to determine whether the application for an extension of time should be granted, considering the circumstances of the case and the relevant statutory provisions.

The central legal issue before the court was whether Mr Welsh's application for an extension of time to file the writ was made within a reasonable time under section 26 of the Federal Circuit and Family Court of Australia Act 2021. The court had to consider whether Mr Welsh could demonstrate that there were exceptional circumstances justifying the delay in filing the writ and whether he had acted promptly once he became aware of the incident's causation. Additionally, the court needed to assess whether the defendant would suffer significant prejudice if the extension was granted.

The court held that Mr Welsh's application for an extension of time should be granted, as he had demonstrated that there were exceptional circumstances justifying the delay in filing the writ. The court found that Mr Welsh had acted promptly once he became aware of the incident's causation and that the defendant would not suffer significant prejudice if the extension was granted. The court emphasised the importance of considering the circumstances of each case when determining whether an extension of time should be granted and noted that the relevant statutory provisions were designed to provide flexibility in the administration of justice. The court further found that the plaintiff had acted reasonably and with due diligence in pursuing his claim and that the defendant's potential prejudice was minimal. Therefore, the application for an extension of time was successful.

The court ordered that the writ be filed within 28 days of the date of the judgment, and that the defendant was to be notified of the extension within seven days of the judgment. The court also ordered that the defendant pay the plaintiff's costs of the application, to be taxed if not agreed.

Orders