Court considers a number of factors in granting leave to proceed out of time

Hole v Gregory Ronald Lyons trading as Greg Lyons Building Constructions [2020] NSWSC 102

This Supreme Court decision considered whether leave should be granted for a worker to commence proceedings against their employer out of time under section 151D (the section) of the Workers Compensation Act 1987 (the Act).

The judgment exemplifies some of the contextual factors that the Court may take into account when determining whether to grant leave out of time.

Material Facts

Mr Hole (the Plaintiff) was working as an on-site workman at the Katoomba RSL when he suffered an injury from falling into a hole in the premises. The hole had allegedly been put there as part of ongoing renovations.

The First Defendant (Greg Lyons Building Constructions) is a licensed builder, and the claim against same was brought pursuant to the Civil Liability Act 2002 (NSW). As such, s 151D of the Act was not applicable, and in addition there was no statute of limitation problem.

The Second Defendant (Briter Doors Solutions Pty Ltd) was allegedly the employer of the Plaintiff and the claim against same was pursuant to the Act. Accordingly, s 151D was relevant. Moreover, Counsel for the Second Defendant did not oppose nor consent to a grant of leave.

The Plaintiff sustained his injury on 23 April 2013 and in accordance with the section, prima facie, the limitation had expired on 23 April 2016. Importantly, the Plaintiff’s statement of claim was not filed until 22 January 2019, therefore making it two years and nine months late under the section.

Submissions and Decision

The Plaintiff submitted, and his Honour accepted, that despite the bald terms of the section in its reference to “leave”, there was judicial illumination available which considered what underpinned those terms. Reference was given to the judgement of McColl JA in Smith v Grant [2006] NSWCA 244. His Honour found that the underpinning question is whether it would be “fair and just” to grant leave.

In addition, his Honour also gave weight to the question of prejudice. The Plaintiff accepted the general proposition of “presumptive prejudice”, that being the disadvantages afforded by the sheer effluxion of time. However, the Plaintiff submitted, and his Honour agreed, that there was no evidence of actual prejudice on the part of the Second Defendant.

Having regard to the substantial passage of time, the Plaintiff pointed to five factors to explain its delay:

  • Firstly, with reference to the state of maximum medical improvement, it was submitted that in workers compensation and personal injury claims it is common for there to be a “settling” of the Plaintiff’s medical condition. Moreover, the Plaintiff stated that it was not until early 2017 that his percentage of whole person impairment became clear.
  • It was submitted that the Plaintiff’s solicitors had made efforts to obtain liability evidence and that those who were required to respond had been dilatory.
  • It was submitted that a pre-filing statement was put on in July 2018 and the statutory clock quite possibly stopped after that. Furthermore, the Plaintiff submitted, and his Honour accepted, that it is inevitable for that sort of alternative resolution to take some time and as a result, if one takes that path and is unsuccessful it is unavoidable that the filing statement of claim would be delayed.
  • Fourthly, with the benefit of hindsight, the Plaintiff accepted that there was a period not covered by the medical settling when the Plaintiff’s case could have been pursued more speedily. Having regard to this, the Plaintiff stated that in a case as such, solicitors would be reluctant to expend significant sums in the pursuit of the claim before being satisfied of the degree of whole person impairment. In addition, his Honour stated that there had been a number of changes of solicitors within the firm, which could lead to disruption.
  • Finally, the Plaintiff submitted that for a short time there was a problem in terms of reporting doctors being provided with suitable fees. In addition, there was a period of no more than a month or so where the Plaintiff became exasperation and refused to co-operate with his lawyers.

In consideration of the Plaintiff’s submissions, his Honour found that there was significant force in the argument that despite lateness, there is a whole structure, external to the Court in which litigation is to commence, in which one must engage in an effort to have the matter resolved away from Court.

His Honour also found that a compelling aspect of the matter was the fact that no parties involved in the litigation were taken by surprise and it had not been asserted that documents had been destroyed, witnesses had gone overseas, or anything else of that nature.

Moreover, his Honour referred to evidence showing that from early 2014, the insurer for the Second Defendant made investigations into the matter.

His Honour found in favour of the Plaintiff and ordered nunc pro tunc (that is, retrospectively) that the Plaintiff be granted leave to commence the proceedings against the Second Defendant, pursuant to s 151D(2) of the Act. His Honour also ordered that the Plaintiff pay the costs of the Second Defendant pertaining to the motion and that the costs would be payable at the conclusion of the proceedings.


This case illustrates that a Plaintiff’s ability to commence proceedings out of time, pursuant so s 151D of the Worker Compensation Act 1987, is based on the individual facts of each matter. Here his Honour considered a number of factors contributed to the delay and as there was no prejudice to the Defendant, leave should be granted to proceed out of time.

If you have any questions about a particular workers compensation matter, please contact our team by phoning 02 4929 9333 (Newcastle) or 02 8297 5900 (Sydney).