Allan v Manning Valley Race Club Limited ACN 00329548 [2023] NSWDC 89

Allan v Manning Valley Race Club Limited ACN 00329548 [2023] NSWDC 89

Leave nunc pro tunc was granted because, although the delay was very substantial, the plaintiff gave acceptable explanations for the relevant delays, including inability to commence before the impairment threshold was met, solicitor delay and consideration of surgery; the defendant did not establish actual prejudice and presumptive prejudice was not sufficient to show that a fair trial could not be had; and the negligence case, while difficult, was reasonably arguable and not weak. The plaintiff was ordered to pay the defendant's costs because he sought an indulgence and the defendant's opposition was not unreasonable given the magnitude of the delay and the need to investigate prejudice.

Jurisdiction
Australia
Judgment Date
14 April 2023
Procedural Posture
Application for Leave Nunc Pro Tunc to Commence Proceedings Pursuant to S 151 D of the Workers Compensation Act 1987 (nsw) / Notice of Motion and Hearing of Application; Procedural Ruling
Outcome
Application granted; plaintiff ordered to pay the defendant's costs of the notice of motion and hearing.
Legal Topics
['extension of Time to Commence Proceedings' 'work Injury Damages' 'presumptive and Actual Prejudice' 'deemed Employment' 'fair Trial After Delay']
['workers Compensation' 'limitation of Actions' 'negligence' 'civil Procedure'] ['extension of Time to Commence Proceedings' 'work Injury Damages' 'presumptive and Actual Prejudice' 'deemed Employment' 'fair Trial After Delay']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Leave Nunc Pro Tunc to Commence Proceedings Pursuant to S 151 D of the Workers Compensation Act 1987 (nsw) / Notice of Motion and Hearing of Application; Procedural Ruling

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave nunc pro tunc under s 151D of the Workers Compensation Act 1987 (NSW) to commence proceedings out of time.' 'Whether there was a sufficient and acceptable explanation for each period of delay.' 'Whether the plaintiff had a reasonably arguable negligence claim, including on the basis of deemed employment.' 'Whether presumptive or actual prejudice to the defendant meant that a fair trial could not be had.' 'Whether the defendant should receive its costs of the notice of motion and hearing.']

Ratio Decidendi

Leave nunc pro tunc was granted because, although the delay was very substantial, the plaintiff gave acceptable explanations for the relevant delays, including inability to commence before the impairment threshold was met, solicitor delay and consideration of surgery; the defendant did not establish actual prejudice and presumptive prejudice was not sufficient to show that a fair trial could not be had; and the negligence case, while difficult, was reasonably arguable and not weak. The plaintiff was ordered to pay the defendant's costs because he sought an indulgence and the defendant's opposition was not unreasonable given the magnitude of the delay and the need to investigate prejudice.

Court Disposition

Application granted; plaintiff ordered to pay the defendant's costs of the notice of motion and hearing.

Orders

  • ['Pursuant to s 151D of the Workers Compensation Act 1987 (NSW), the plaintiff is granted leave nunc pro tunc to commence these proceedings.' "The plaintiff to pay the defendant's costs of the notice of motion and hearing of this application."]