Australia, Sept. 8 -- New South Wales Land and Environment Court issued text of the following judgement on Aug. 7:

1. Before the Court for determination is an Amended Notice of Motion filed on 21 May 2025 by the plaintiff, seeking leave under s 151D of the Workers Compensation Act 1987 (NSW) ("the Act") to commence proceedings more than three years after the date on which an alleged injury was received.

2. Under s 151D(2) of the Act, the Court may grant leave to a plaintiff to commence proceedings in respect of an injury more than three years after the date on which the injury was received.

3. In support of the application, the plaintiff read the affidavits of:

a) Nayven Taouk dated 7 May 2025; and

b) The plaintiff dated 8 May 2025.

4. No affidavits were relied upon and read by the defendant. The defendant tendered a letter dated 21 November 2018 from the plaintiff's then solicitors to the defendant health authority on the application, which indicated that the plaintiff sought a particular secondment in her work and stated that if it was not granted, it was likely that the plaintiff's health condition would deteriorate, and in those circumstances, she would make a worker's compensation claim.

5. In addition, the plaintiff gave oral evidence and was cross-examined with leave by counsel for the defendant. In that evidence, relevantly, the plaintiff:

a) Believed that she had been given advice about worker's compensation claims by her psychologist earlier than the date of the letter;

b) Said she was given advice to make a worker's compensation claim by a doctor soon after;

c) Accepted that her then solicitors in the light of the letter, gave general advice about worker's compensation and the processes involved;

d) Was given advice around receiving a report from a Dr Malik; and

e) Gave evidence about making a decision to delay accepting an offer from the employer in relation to a 19% whole of person impairment assessment for a period in order to investigate potentially higher worker's compensation benefits.

6. The Court has had the benefit of written and oral submissions from both of the parties.

7. There are numerous appellate authorities relating to the principles applicable in an application of this nature. In general terms, the Court notes the decision of McColl JA in Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447 where her Honour noted the broad discretion in s 151D(2) of the Act and the fact that no specific criteria in relation to determining an application were set out. Meagher JA and Barrett JA agreed with McColl JA.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/198ac9ea21ff26f4dbdac39e)

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