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

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

Service of the plaintiff’s pre-filing statement by email to the defendant’s solicitors was valid in the circumstances, as the solicitors were clearly acting for the defendant and its insurer with respect to the claim. Because the defendant failed to serve a pre-filing defence within the prescribed 42-day period, s 318(1)(c) of the WIM Act precludes the defendant from filing a defence disputing liability. Further, the plaintiff provided a satisfactory explanation for the delay and the defendant did not establish substantial prejudice as a result of the delay. Leave was therefore granted to the plaintiff, nunc pro tunc, to file his statement of claim out of time and the relevant portions of...

Parties
Plaintiff/applicant: Gunther Van Der Borght; Defendant/respondent: Memjet North Ryde Pty Limited
Jurisdiction
Australia
Judgment Date
27 November 2018
Procedural Posture
Civil / Interlocutory Application (notice of Motion) for Extension of Time and Striking Out Portions of the Defence
Outcome
Plaintiff granted leave out of time to file statement of claim; relevant portions of defence struck out; costs of motion to plaintiff.
Legal Topics
Limitation of Actions, Service of Documents, Work Injury Damages, Interlocutory Relief, Extension of Time
Workers' Compensation Civil Procedure Limitation of Actions Service of Documents Work Injury Damages Interlocutory Relief Extension of Time

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Parties

Gunther Van Der Borght

Plaintiff/applicant

Memjet North Ryde Pty Limited

Defendant/respondent

Procedural Posture

Civil / Interlocutory Application (notice of Motion) for Extension of Time and Striking Out Portions of the Defence

Legal Issues

  1. 1 Whether service of the plaintiff’s pre-filing statement by email on the defendant’s solicitor constituted valid service as required by s 315(1) of the Workplace Injury Management and Workers Compensation Act 1998 (WIM Act)
  2. 2 Whether portions of the defence should be struck out due to non-compliance with prescribed statutory timeline under s 318 of the WIM Act
  3. 3 Whether the plaintiff has provided a reasonable and satisfactory explanation for the delay in commencing proceedings beyond the limitation period provided by s 151D of the Workers' Compensation Act 1987 (WC Act)

Ratio Decidendi

Service of the plaintiff’s pre-filing statement by email to the defendant’s solicitors was valid in the circumstances, as the solicitors were clearly acting for the defendant and its insurer with respect to the claim. Because the defendant failed to serve a pre-filing defence within the prescribed 42-day period, s 318(1)(c) of the WIM Act precludes the defendant from filing a defence disputing liability. Further, the plaintiff provided a satisfactory explanation for the delay and the defendant did not establish substantial prejudice as a result of the delay. Leave was therefore granted to the plaintiff, nunc pro tunc, to file his statement of claim out of time and the relevant portions of...

Court Disposition

Plaintiff granted leave out of time to file statement of claim; relevant portions of defence struck out; costs of motion to plaintiff.

Orders

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