Donoso v Blacktown City Council [2020] NSWDC 656

Donoso v Blacktown City Council [2020] NSWDC 656

Having regard to the totality of circumstances, including progressive assessment of medical condition and whole person impairment, the absence of actual prejudice and no deliberate delay, the applicant provided an adequate explanation for the delay and leave to proceed out of time was appropriate.

Parties
Plaintiff/applicant: Mr J Donoso; Defendant/respondent: Blacktown City Council
Jurisdiction
Australia
Judgment Date
30 October 2020
Procedural Posture
Application for Leave to Commence Work Injury Damages Proceeding Out of Time / Hearing of Application for Leave Under S 151 D(2) Workers Compensation Act 1987 (nsw)
Outcome
Leave to commence proceeding nunc pro tunc granted; costs of the Notice of Motion to be costs in the cause; matter directed to case management conference.
Legal Topics
Extension of Limitation Period, Work Injury Damages, Explanation for Delay
Workers Compensation Personal Injury Civil Procedure Extension of Limitation Period Work Injury Damages Explanation for Delay

Case Brief

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Parties

Mr J Donoso

Plaintiff/applicant

Blacktown City Council

Defendant/respondent

Procedural Posture

Application for Leave to Commence Work Injury Damages Proceeding Out of Time / Hearing of Application for Leave Under S 151 D(2) Workers Compensation Act 1987 (nsw)

Legal Issues

  1. 1 Whether the applicant provided an adequate explanation for delay in commencing work injury damages proceedings
  2. 2 Whether leave should be granted to commence proceedings out of time under s 151D(2) Workers Compensation Act 1987 (NSW)
  3. 3 Whether the delay caused prejudice to the defendant

Ratio Decidendi

Having regard to the totality of circumstances, including progressive assessment of medical condition and whole person impairment, the absence of actual prejudice and no deliberate delay, the applicant provided an adequate explanation for the delay and leave to proceed out of time was appropriate.

Court Disposition

Leave to commence proceeding nunc pro tunc granted; costs of the Notice of Motion to be costs in the cause; matter directed to case management conference.

Orders

  • Pursuant to s 151D(2) Workers Compensation Act 1987 (NSW), the plaintiff is granted leave to commence the proceeding, nunc pro tunc, as from 27 April 2020.
  • Costs of the Notice of Motion filed on 18 June 2020 are to be costs in the cause.