James Burke v ABL Group Pty Limited t/as Authentic Bricklaying (NSW) (under external administration) [2013] NSWDC 212

James Burke v ABL Group Pty Limited t/as Authentic Bricklaying (NSW) (under external administration) [2013] NSWDC 212

The defendant failed to discharge its onus under section 318(2). The proposed medical and earning capacity evidence was reasonably available to the defendant and its insurer before the pre-filing defence was served, particularly after service of detailed section 282 particulars, and no evidence explained the failure...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
31 October 2013
Procedural Posture
Work Injury Damages Proceedings / Defendant's Motion Seeking Orders Compelling the Plaintiff to Attend Medical and Earning Capacity Examinations and Leave Under Section 318(1)(d) of the Work Injury Management and Workers Compensation Act, 1998 to Rely on Reports Obtained From Those Attendances
Outcome
The defendant's motion was dismissed.
Legal Topics
['work Injury Damages' 'pre Filing Statement' 'pre Filing Defence' 'disclosure of Evidence' 'leave to Rely on Undisclosed Evidence' 'medical Examination' 'substantial Prejudice' 'onus of Proof']
['workers Compensation' 'civil Procedure' 'personal Injury'] ['work Injury Damages' 'pre Filing Statement' 'pre Filing Defence' 'disclosure of Evidence' 'leave to Rely on Undisclosed Evidence' 'medical Examination' 'substantial Prejudice' 'onus of Proof']

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Procedural Posture

Work Injury Damages Proceedings / Defendant's Motion Seeking Orders Compelling the Plaintiff to Attend Medical and Earning Capacity Examinations and Leave Under Section 318(1)(d) of the Work Injury Management and Workers Compensation Act, 1998 to Rely on Reports Obtained From Those Attendances

Legal Issues

  1. 1 ['Whether the defendant should be granted leave under section 318(1)(d) of the Work Injury Management and Workers Compensation Act, 1998 to rely on medical and earning capacity evidence not disclosed in its pre-filing defence.' 'Whether the proposed material was not reasonably available to the defendant when its pre-filing defence was served.' "Whether failure to grant leave would substantially prejudice the defendant's case." 'Whether the plaintiff should be compelled to attend the proposed examinations.']

Ratio Decidendi

The defendant failed to discharge its onus under section 318(2). The proposed medical and earning capacity evidence was reasonably available to the defendant and its insurer before the pre-filing defence was served, particularly after service of detailed section 282 particulars, and no evidence explained the failure to obtain it. The defendant also failed to establish substantial prejudice because the cross-defendant was not bound by the WIM provisions and could likely obtain similar quantum evidence. The unexplained delay of about 3.5 months in filing the motion was a further discretionary reason to refuse relief.

Court Disposition

The defendant's motion was dismissed.

Orders

  • ["The defendant's motion is dismissed." 'The Court will hear the parties as to costs.']