Section 151D and establishing a strong case for the refusal of leave

  • Newsletter Article
  • Published 14.07.2025

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Naumovski v Z Services Australia Pty Ltd (NSWSC 2025)

Key Takeaways

  • In opposing an application for leave to proceed with a work injury damages claim on the basis of prejudice, defendants need to consider whether they have exhausted all available avenues to obtain evidence to respond to the claim.
  • Where there is uncertainty regarding the circumstances of injury and there are uncooperative witnesses, this will include considering witness statements served by the plaintiff and engaging with those witnesses in support of the defendant’s case.

Brief Facts

The plaintiff sustained an injury on 18 May 2016 while undertaking duties as a formworker under a labour hire agreement.

On 4 October 2024 (eight years after the date of injury), the plaintiff filed a notice of motion seeking leave to ‘commence and maintain proceedings’ against Z Services Australia Pty Ltd (the defendant) pursuant to s151D of the Workers Compensation Act 1987 (WCA 1987).

Section 151D of the WCA 1987 provides that a plaintiff is not entitled to commence Court proceedings for work injury damages more than three years after the date of injury, except with the leave of the Court. Whilst Section 151D does not prescribe the issues that a Court is to take into account when considering an application for leave, it is well established that the reasons for the delay, and any prejudice to the defendant, are relevant factors.

The defendant opposed the granting of leave, but did not wish to make submissions with respect to the issue of delay.

However, in relation to the issue of prejudice, the defendant’s submissions focused on the following:

  • There were at least three unverifiable versions of how the plaintiff came to be injured.’
  • ‘All attempts to speak to, or identify, witnesses had failed.

In one version of events, the plaintiff was injured when a ‘steel beam was lowered from the floor above (and) slipped from the worker’s grip’. However, in another version of events, the plaintiff was ‘holding a crossbeam when the pins were knocked out and he lost control’. Finally, another description of injury suggested that the plaintiff was simply not in ‘position to receive the beam’ and the beam fell ‘without warning’.

These differing versions of events put into question the cause of the plaintiff’s injury.

In order to verify the cause of injury, the defendant sought to obtain statements from witnesses present at the time, however, the factual evidence available to the defendant identified numerous witnesses, and there was a lack of consistency with respect to how many witnesses were present at the time of the incident.

The defendant engaged an investigator to obtain statements from the witnesses, and the defendant submitted that either the witnesses they contacted did not recall the incident, or they could not be located. It was also noted that the investigator contacted one witness named Mr L, but he was unwilling to assist.

Judgment

The matter was heard before Justice Elkhaim of the Supreme Court of NSW, who granted leave in favour of the plaintiff.

In his judgment, His Honour commented that the inability to locate witnesses and the inconsistent version of events ‘established a strong case for refusal of leave’. However, his Honour noted that the plaintiff’s pre-filing statement included a statement from Mr L, and upon receiving this statement, the defendant should have ‘attempted to re-engage’ the witness despite the witness’ previous unwillingness to assist.

Considering the explanation for the delay in bringing the late claim and ‘the availability of at least one eyewitness’, his Honour granted the plaintiff leave to maintain proceedings.

Implications

A defendant opposing a plaintiff’s extension under s151D is rarely successful unless there are unique circumstances or serious prejudice in properly defending a claim. However, with careful consideration as to the witnesses and evidence available to a defendant, this matter provides insight into circumstances that could establish ‘a strong case for the refusal of leave’.