Humphries v McDermott Drilling Pty Ltd [2019] NSWSC 508

Humphries v McDermott Drilling Pty Ltd [2019] NSWSC 508

Leave under s 151D was granted nunc pro tunc because Mr Humphries had notified his claim and commenced common law proceedings within time, the 2012 proceedings were discontinued due to representative error rather than his abandonment of the claim, the further delay was connected with issues about the applicable coal miner regime, and the defendants did not establish actual or material prejudice or that the delay made a fair trial unlikely. The evidence did not establish that Mr Botica could not be located or subpoenaed, nor that relevant records were unavailable. Because the need for the leave application arose from the solicitors' error, justice required PK Simpson & Co to bear the...

Jurisdiction
Australia
Judgment Date
07 May 2019
Procedural Posture
Common Law Proceedings for Damages for Workplace Injury; Application for Leave Under S 151 D(1) of the Workers Compensation Act 1987 (nsw) and Defendant's Motion to Strike Out or Permanently Stay Proceedings / Interlocutory Motions Before Trial
Outcome
Leave granted nunc pro tunc; McDermott's motion dismissed; plaintiff's solicitors ordered to bear the parties' costs of the motions.
Legal Topics
['extension of Time' 'leave to Commence Proceedings Nunc Pro Tunc' 'worker in or About a Coal Mine' 'strike Out of Statement of Claim' 'permanent Stay' 'forensic Prejudice' 'representative Error' "solicitors' Costs"]
['civil Procedure' 'workers Compensation' 'personal Injury' 'costs'] ['extension of Time' 'leave to Commence Proceedings Nunc Pro Tunc' 'worker in or About a Coal Mine' 'strike Out of Statement of Claim' 'permanent Stay' 'forensic Prejudice' 'representative Error' "solicitors' Costs"]

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Procedural Posture

Common Law Proceedings for Damages for Workplace Injury; Application for Leave Under S 151 D(1) of the Workers Compensation Act 1987 (nsw) and Defendant's Motion to Strike Out or Permanently Stay Proceedings / Interlocutory Motions Before Trial

Legal Issues

  1. 1 ['Whether Mr Humphries should be granted leave under s 151D of the Workers Compensation Act 1987 (NSW) to bring the proceedings against McDermott nunc pro tunc.' "Whether McDermott's motion to strike out the statement of claim or, alternatively, permanently stay the proceedings should be granted." 'Whether delay and the asserted unavailability of Mr Botica caused actual or material forensic prejudice making a fair trial unlikely.' 'Who should bear the costs of the motions.']

Ratio Decidendi

Leave under s 151D was granted nunc pro tunc because Mr Humphries had notified his claim and commenced common law proceedings within time, the 2012 proceedings were discontinued due to representative error rather than his abandonment of the claim, the further delay was connected with issues about the applicable coal miner regime, and the defendants did not establish actual or material prejudice or that the delay made a fair trial unlikely. The evidence did not establish that Mr Botica could not be located or subpoenaed, nor that relevant records were unavailable. Because the need for the leave application arose from the solicitors' error, justice required PK Simpson & Co to bear the...

Court Disposition

Leave granted nunc pro tunc; McDermott's motion dismissed; plaintiff's solicitors ordered to bear the parties' costs of the motions.

Orders

  • ['Mr Humphries have leave to bring these proceedings, nunc pro tunc.' 'The motion filed for McDermott be dismissed.' "PK Simpson & Co is to bear the parties' costs of the motions, as agreed or assessed."]