The Plaintiff brought a claim for work injury damages in respect of an injury sustained during the course of his employment with the Defendant, ITW Australia Pty Ltd, on 15 March 2010.

The Defendant relied on section 151D of the Workers Compensation Act (NSW) 1987 (‘the 1987 Act’) as the time limit for commencing proceedings against the Defendant in respect of the claim for work injury damages expired on 15 March 2013.

The Plaintiff filed a Notice of Motion seeking leave to commence proceedings out of time pursuant to section 151D(2) of the 1987 Act.

At the hearing of the Notice of Motion, the Defendant consented to the Plaintiff being granted leave to commence proceedings out of time as there was no evidence of actual prejudice to the Defendant occasioned by the delay.

The Plaintiff sought a separate order for the costs of the Notice of Motion. The Defendant opposed the order for costs.

Decision

Justice Harrison granted the Plaintiff leave to commence proceedings out of time pursuant to section 151D(2) of the 1987 Act.

At [19] Justice Harrison noted that unless the Plaintiff had been prepared to run the risk that leave would be granted at a final hearing of the proceedings, a Notice of Motion, or interlocutory hearing of some sort to determine the issue of leave was necessary.

Justice Harrison ordered that the costs of the Notice of Motion be the Plaintiff’s costs in the proceedings. In this regard, Justice Harrison held that the Plaintiff should not have an independent entitlement to recover costs of the Notice of Motion unless he also becomes entitled to an order for the costs of the proceedings generally.

Implications

This decision of the NSW Supreme Court provides precedent authority to bind the NSW District Court to the effect that:

  • Even in circumstances where the Defendant does not oppose the Plaintiff being granted leave to commence proceedings out of time, the Plaintiff is still required to prepare interlocutory material seeking leave to commence out of time and requires the Court’s leave to do so.
  • Courts should only order costs in the cause, as opposed to a separate order for costs, even when the Plaintiff is successful in being granted leave to commence proceedings out of time.