Naumovski v Z Services Australia Pty Ltd

1. [1]

   On 18 May 2016, the plaintiff was injured while working at a building site in Riverwood in New South Wales. The plaintiff alleges he was employed by the first defendant as a formworker but was placed at the construction site to work under the second defendant (a labour hire arrangement).

2. [2]

   The first defendant was placed under administration in August 2016. On 3 March 2025, the plaintiff obtained leave under s 471D of the Corporations Act 2001 (Cth) to bring proceedings against the first defendant.

3. [3]

   By a notice of motion filed on 4 October 2024 the plaintiff seeks leave pursuant to s 151D of the Workers Compensation Act 1987 (NSW) (the WCA) to commence and maintain proceedings against the first defendant. The purpose of the proceedings is to recover work injury damages arising from the plaintiff’s injuries.

4. [4]

   The reason the plaintiff needs leave is because s 151D of the WCA imposes a three-year limitation period on the commencement of such proceedings. The section does however allow for the extension of the period with the leave of the court in which the proceedings are to be brought.

5. [5]

   The first defendant opposed the granting of leave. The second defendant is not concerned with the notice of motion.

6. [6]

   The plaintiff relied on the following affidavits:

   1. (1)

      Mr Martin Bell dated 12 November 2024 and 23 May 2025.

   2. (2)

      Mr Louis White dated 19 March 2025.

   3. (3)

      The plaintiff dated 23 May 2025.

7. [7]

   Mr Bell is the plaintiff’s solicitor. Mr White is a clerk in Mr Bell’s office. Mr White’s affidavit refers to the granting of leave, as described above, under the Corporations Act.

8. [8]

   The first defendant relied on the affidavits of its solicitor, Mr Dennis Kim, dated 28 March 2024, 5 June 2025 and 6 June 2025 respectively. Mr Kim’s client is the workers compensation insurance scheme agent for the first defendant, GIO Insurance.

9. [9]

   In their respective written submissions, counsel for the opposing parties stated their summary of the necessary conditions for the granting of leave. Although expressed in different words the test outlined was the same. The plaintiff said that the essential elements to be considered were:

10. [10]

    The first defendant’s summary was:

11. [11]

    The first defendant, without any formal concession, did not wish to be heard on delay or ‘arguable case’.

Explanation for the delay

1. [12]

   The statement of claim was filed on 4 September 2024. It should have been filed by 18 May 2019. The filing of the statement of claim is ostensibly over five years ‘late’. However, pursuant to s 151DA(1)(b) of the WCA, time stopped running with the lodging of a pre-filing statement on 29 May 2024.

2. [13]

   A person cannot claim work injury damages unless he or she has a whole person impairment (WPI) of 15% or more (s 151H of the WCA). Following the accident the plaintiff was admitted to St George Hospital where he remained for about nine days. His injuries seem to have been to his shoulder, neck and head, and there is also a psychiatric component.

3. [14]

   The plaintiff claimed and has received workers compensation payments for both weekly payments and permanent impairment.

4. [15]

   On 21 February 2023, the Personal Injury Commission determined the plaintiff’s psychological injury WPI to be 15% and his personal injury WPI to be 14%.

5. [16]

   On 31 August 2023, Mr Bell commenced acting for the plaintiff. In his affidavit of 12 November 2024, Mr Bell describes a series of errors made by the plaintiff’s former solicitors. For example, they described the first defendant as Zed Group Australia Pty Ltd. This is a different entity to Z Services Australia Pty Ltd. There was confusion and “missteps” were taken. Delay naturally ensued.

6. [17]

   Since taking over the file, Mr Bell has worked diligently to put the case in order. He has found the correct first defendant, arranged medical examinations, made liability enquiries, and obtained a report from SafeWork NSW about the injury. He also had to deal with the first defendant being under administration.

7. [18]

   On 16 May 2025, the first defendant’s solicitor conceded that “the plaintiff’s degree of permanent impairment meets the threshold for a worker with the highest needs”. This implies a WPI of at least 31%. The plaintiff is clearly a person carrying significant disability from the accident.

8. [19]

   I am satisfied there has been an adequate explanation of the delay.

Arguable case

1. [20]

   Remembering that the first defendant also did not challenge this requirement, I think I can be brief. To some degree this requirement overlaps with prejudice in that if the facts of the accident are difficult to ascertain then establishing an arguable case should logically also be difficult.

2. [21]

   Nevertheless, the overall allegation is of an accident at work in circumstances where an employer has a high duty of care. There are records of the incident and at least one statement (Mr Lezaja) which suggests that a beam fell onto the plaintiff in the course of his working as a formworker. Without more, a heavy beam falling onto a worker would suggest something going wrong in the system of work and in turn an arguable case on liability.

3. [22]

   Accordingly, I am satisfied that there is an arguable case.

Prejudice and fair trial

1. [23]

   There were two inter-related elements to the first defendant’s submissions:

   1. (1)

      there were at least three unverifiable versions of how the plaintiff came to be injured; and

   2. (2)

      all attempts to speak to, or identify, witnesses had failed.

2. [24]

   The differing versions of the accident can be seen from:

   1. (1)

      In para 6 of the statement of claim the following is alleged:

   2. (2)

      The WorkSafe description of the incident states:

   3. (3)

      The WorkSafe report lists two witnesses; Mr Daniel Lasu and Mr Peter Lezaja. I note the report only became available to the first defendant, in unredacted form, on 24 March 2025.

   4. (4)

      The contract administrator, Mr Robert Chociej, gave this description in an Incident and Injury Report on the day following the accident:

   5. (5)

      In the report completed by Mr Chociej he names two persons as witnesses, Mr Daniel Solomoocres and Mr Daniel Lafu.

   6. (6)

      Mr Chociej told an investigator in December 2024 that “the claimant was one of about 9 or 10 workers who were brought in by Betaform just to strip formwork”. Betaform is the second defendant. The suggestion arising from the information is that there were potentially 9 or 10 witnesses.

   7. (7)

      An expert report prepared for the plaintiff states at paras 35 and 41 - 42:

   8. (8)

      The expert states that the sources of her information were instructions from the plaintiff’s solicitors, a notification of injury form, and an employer’s injury claim form. She also refers to an interview with the plaintiff, but I was told that, consistently with there being no version in his affidavit, the plaintiff has no recollection of the accident.

3. [25]

   The potential witnesses who emerge from the various documents are Mr Robert Chociej, Mr Daniel Lasu, Mr Daniel Lafu, Mr Daniel Solomoocres, Mr Marko Bukorovic and Mr Peter Lezaja. I assume Mr Lasu and Mr Lafu are the same person.

4. [26]

   According to the various investigation reports prepared by Lee Kelly Investigations, Mr Chociej did not witness the accident, Mr Lafu has no recollection of the plaintiff or the accident, Mr Solomoocres cannot be located, and Mr Lezaja, on 14 February 2024, “refused to assist” with the investigator’s enquiries.

5. [27]

   The Mr Marko Bukorovic who was identified by the investigator, told the investigator:

6. [28]

   In addition, enquiries of persons associated with the first defendant, including its directors (Mr Letteri and Ms Munoz), were not productive. Ms Munoz said:

7. [29]

   A Ms Ingersoll, who was stated on the claim form to be the first defendant’s human resources manager, could not assist. The investigator’s report says:

8. [30]

   Similarly, the investigators were not able to gain any useful information when they made enquiries of the second defendant. The head contractor of the construction where the accident occurred was Lu Projects Pty Ltd. The investigator tried to correspond with this company but has never received a response.

9. [31]

   This state of affairs concerning witnesses was at the core of the first defendant’s submissions on being able to have a fair trial. If the circumstances of the accident were uncertain and no witnesses could assist, then a fair trial was not possible.

10. [32]

    The first defendant submitted:

11. [33]

    The submission just quoted is powerful and falls within the decision of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547; [1996] HCA 25, where his Honour stated:

12. [34]

    On the basis of the first defendant’s reasonable, but unsuccessful, efforts to locate witnesses, combined with the uncertain and varied versions of the accident, the first defendant has established a strong case for the refusal of leave.

13. [35]

    However, there is one more factor to be added in to the question of witnesses. As I have said above, a pre-filing statement was lodged on 29 May 2024 and, at the same time, served on the first defendant. Attached to the statement was a witness statement from Mr Peter Lezaja. The statement was obtained on behalf of the plaintiff and is dated 13 February 2024. Notably this is after the first defendant’s investigator was rebuffed by Mr Lezaja.

14. [36]

    In paras 11-12 of his statement Mr Lezaja states:

15. [37]

    Significantly, in my view, since the service of Mr Lezaja’s statement on the first defendant, the first defendant has not attempted to re-engage with Mr Lezaja. There is of course no property in a witness and Mr Lezaja is able to be subpoenaed.

16. [38]

    It is also noteworthy that the version given by Mr Lezaja is consistent with the version alleged in the statement of claim.

17. [39]

    I think the availability of Mr Lezaja as a witness significantly counters the strength of the first defendant’s objection to leave, as I have described above. To the extent that there remains a lacuna of witnesses, that is a circumstance which will impede the plaintiff’s proof of his claim as much as it hampers the first defendant’s resistance.

Summary

1. [40]

   Taking into account the absence of any blameworthy delay on the part of the plaintiff, including the first defendant appropriately declining to take any point on delay or the existence of an arguable case, and the availability of at least one eyewitness to the accident, I think leave should be granted. I would also add into the equation, if necessary, the severity of the plaintiff’s injuries which is a factor in reaching a fair and just result.

2. [41]

   The plaintiff’s motion seeks an order that “the costs of the motion be costs in the cause”. I think that is an appropriate order considering that the plaintiff has sought the court’s indulgence in obtaining leave to pursue his claim.

3. [42]

   I make the following orders:

   1. (1)

      The plaintiff has leave pursuant to s 151D of the Workers Compensation Act 1987 (NSW) to commence and maintain proceedings against the first defendant for work injury damages in respect of injuries sustained on 18 May 2016.

   2. (2)

      The costs of the plaintiff’s motion filed on 4 October 2024 are to be costs in the cause.