Ryan v Forstaff Engineering Personnel Pty Ltd [2011] NSWSC 1009

Ryan v Forstaff Engineering Personnel Pty Ltd [2011] NSWSC 1009

The plaintiff, despite delay of one year and five days outside limitation period, acted reasonably while uncertain who the employer was and delay did not prejudice the defendant. Under s 151DA, time does not run in specified circumstances regardless of when events arise and plaintiff may therefore rely on those provisions. Leave is therefore granted to commence proceedings out of time as risk of prejudice is minimal, and the plaintiff has an arguable case.

Jurisdiction
Australia
Judgment Date
02 September 2011
Procedural Posture
Interlocutory Motion for Leave to Commence Proceeding Out of Time / Ruling on Notice of Motion for Leave Under S 151 D(2) Workers Compensation Act 1987
Outcome
Leave granted to plaintiff to commence proceedings out of time under s 151D Workers Compensation Act 1987.
Legal Topics
['extension of Time' 'leave to Commence Proceedings' 'limitation Period' 'statutory Interpretation']
['procedure' 'personal Injury' 'workers Compensation'] ['extension of Time' 'leave to Commence Proceedings' 'limitation Period' 'statutory Interpretation']

Case Brief

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Procedural Posture

Interlocutory Motion for Leave to Commence Proceeding Out of Time / Ruling on Notice of Motion for Leave Under S 151 D(2) Workers Compensation Act 1987

Legal Issues

  1. 1 ['Whether leave should be granted under s 151D(2) of the Workers Compensation Act 1987 to commence proceedings outside the statutory limitation period' 'Whether the plaintiff can rely on s 151DA provisions to reduce period out of time' 'Whether an extension should be refused on futility grounds' "Whether delay prejudiced the defendant's ability to have a fair trial"]

Ratio Decidendi

The plaintiff, despite delay of one year and five days outside limitation period, acted reasonably while uncertain who the employer was and delay did not prejudice the defendant. Under s 151DA, time does not run in specified circumstances regardless of when events arise and plaintiff may therefore rely on those provisions. Leave is therefore granted to commence proceedings out of time as risk of prejudice is minimal, and the plaintiff has an arguable case.

Court Disposition

Leave granted to plaintiff to commence proceedings out of time under s 151D Workers Compensation Act 1987.

Orders

  • ['Grant leave to the plaintiff pursuant to s 151D Workers Compensation Act to commence proceedings against the defendant by 7 March 2011' 'Order that the costs of motion be costs in the proceedings']