NEW SOUTH WALES COURT ISSUES JUDGEMENT FOR JOSEPH PHILIPPE V/S FANTASTIC FURNITURE HOLDINGS CASE

Australia, April 13 -- New South Wales Land and Environment Court issued text of the following judgement on March 13:

1. The plaintiff, Mr Philippe, is 40 years old. He will shortly turn 41. He was employed as a warehouse labourer at the defendant's warehouse at 71 Sackville Street, Fairfield East when, on 30 October 2007, he suffered an injury which, it is common ground, has resulted in a 34% whole person impairment.

2. He applies retrospectively for leave under section 151D of the Workers Compensation Act 1987 to commence proceedings in this Court for work injury damages more than 3 years after the date on which he received his injury.

3. Mr Philippe in fact commenced proceedings by filing a statement of claim on 5 July 2024. This was 16 years and 8 months after the date on which he received his injury. Counsel for the defendant calculated, which is not disputed, that allowing for time that did not run under the relevant statute, the period of delay between the date of injury and the commencement of proceedings was 16 years, 2 months and 25 days. This means that the proceedings were commenced more than 13 years after the 3 year period stipulated by s.151D. On any view, there has been a very long period of delay.

4. I will come to Mr Philippe's explanation for delay in due course. The defendant submits that his explanation is not sufficient and acceptable. It also raises questions of actual and presumptive prejudice.

A. Legal principles

6. Notwithstanding that the 3-year period had expired before Mr Philippe commenced these proceedings, the court may grant leave under section 151D retrospectively to the time the proceedings were actually commenced (: Whisprun Pty Ltd the Sams [2002] NSWCA 167).

5. The general principles which should guide a court when considering an application for leave under section 151D are longstanding. They were considered by the Court of Appeal in Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207, [2002] NSWCA 207 and were summarised in Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447 by McColl JA (Meagher and Barrett JJA agreeing) at [43] - [52].

7. In Itek Graphix, Ipp A-JA (Spigelman CJ and Sheller JA agreeing) said that in limitation legislation such as s.151D, where a broad discretion is conferred to grant to sue after expiry of the limitation period, the general question that has to be asked is what and what is fair and just (per Gleeson CJ in the case of Salido), or what does the justice of the case require (per McHugh J in the case of Brisbane South Regional Health Authority). Ipp A-JA said in answering such a question, the justice of the case must be evaluated by reference to the rationales of the limitation period that has barred the action, including the 4 rationales to which McHugh J referred. His Honour had stated earlier in his judgment that McHugh J had identified 4 broad rationales for the enactment of limitation periods generally, and they were: (a) as time goes by relevant evidence is likely to be lost; (b) it is oppressive to a defendant to allow an action to be brought long after the circumstances that gave rise to it have passed; (c) it is desirable for people in the community to be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Many in the community have a significant interest in knowing that they have no liabilities beyond a definite period; and (d) the public interest requires that disputes be settled as quickly as possible. Ipp A-JA also said that often, a failure satisfactorily to explain the delay will not be decisive. Ordinarily, the issue of prejudice will be of paramount importance.

8. In Howley, as I have said, McColl JA summarised the relevant principles applicable to s.151D. One general principle identified by her Honour was that the effect of Brisbane South is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant, and that significant prejudice means such prejudice as would make the chances of a fair trial unlikely.

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1958dad6c217a27a11ca7084)

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