Martino v STRAMIT CORPORATION PTY LIMITED

1. [1]

   The Court had before it a Notice of Motion (“the motion”) filed on 16 September 2025 by the plaintiff, Daniel Martino (“the plaintiff”), seeking leave nunc pro tunc, to commence and carry on proceedings pursuant to s 151D of the Workers Compensation Act 1987 (NSW) (“the Act”). The proceedings against the second defendant in the proceedings were constituted by an Amended Statement of Claim filed on 23 July 2024 in the District Court. On 24 July 2025, the District Court proceedings were transferred to this Court pursuant to s 140 of the Civil Procedure Act 2005 (NSW).

2. [2]

   The defendants in the proceedings presently before the Court are Stramit Corporation Pty Ltd and John West Logistics Pty Ltd, and the proceedings, in substance, concern a claim for work injury damages arising from physical injuries sustained by the plaintiff whilst he was working as a “HC truck driver” for the second defendant, John West Logistics Pty Ltd.

3. [3]

   The essential issue raised on the motion was whether the court should grant leave, pursuant to s 151D of the Act, to permit the plaintiff to bring an action for damages against his employer in respect of the alleged injury, more than three years after the date on which the injury was sustained.

4. [4]

   The Court did not have the benefit of significant submissions on the construction of s 151D of the Act, because the application in the motion proceeded upon the basis that the provisions of s 151D of the Act were, in fact, engaged.

5. [5]

   During the course of argument in relation to that matter, the Court queried with counsel for the plaintiff the true nature of the application, because, it was apparent on the face of the plaintiff’s written submissions, that, whilst an explanation for delay was proffered, the plaintiff ultimately submitted that he was not out of time for the purposes of the Act, to bring the proposed action.

6. [6]

   This is not an occasion for the Court to embark upon a construction of s 151D of the Act, particularly in circumstances where the relevant issue of construction which arises is whether the provisions of the Act which cause time to stop running, might operate in such a way as to, at least by implication, have s 151D, so far as it refers to a period of time, not refer to a simple calendar year calculation, but to a calculation of time which takes into account and engages with the time stop provisions appearing elsewhere in the Act, in particular, for present purposes, the provisions of s 151DA(1)(b) of the Act (noting that the provision under which leave is sought is s151D(2) of the Act).

7. [7]

   The contention that leave was not strictly required in the present case, in my view, must at least be arguable, having regard to the time stop provisions of the Act. However, for reasons that I have given, as mentioned, it is inappropriate to engage in that analysis when, in my view, whether because of a construction of that kind or because of the consideration of leave itself, the orders sought in the motion should be granted.

8. [8]

   In those circumstances, I turn then to the question of leave. Reference was made, in the written submissions of the plaintiff, to the decision of Basten J in Gower v State of New South Wales [2018] NSWCA 132 (“Gower”), in which his Honour considered the applicable principles for the grant of leave. His Honour referred to three considerations properly bearing upon the question of leave, although I suspect not exhaustively, namely (at [4]):

   1. (1)

      whether there is a sufficient and acceptable explanation for each period of delay;

   2. (2)

      whether the plaintiff has a reasonably arguable claim in negligence; and

   3. (3)

      whether the conduct of the trial would cause the defendant significant prejudice so as to render the trial unfair.

9. [9]

   I pause, before briefly turning to each of those considerations, to note that the position of the defendants in the proceedings was that they neither consented to nor opposed the motion.

10. [10]

    I turn then, firstly, to the question of the explanation for delay. This question is infected in its consideration by the anomaly, at least arising from the potential construction of s 151D(2) to the Act, that I have referred to earlier. On one view, the resolution of the question, being the first question raised in the decision in Gower, is absolute, because the operation of time stops remove any question of delay at all. However, for the purpose of engaging with the principle in the context of leave, I conclude that, based on the submission made by the plaintiff, there is a sufficient and acceptable explanation for delay, based on the operation of the various time stops within the Act.

11. [11]

    Most prevalent in that respect was, as I have early mentioned, the provisions of s151DA(1)(b) of the Act, which provides that time stops running indefinitely from the date that the plaintiff's pre-filing statement was served on the second defendant, and remains current. That date, on the material presently before the court, is 19 April 2024. There were further time stop periods which were relevant which, in the plaintiff's submission, when totalled, meant that the proceedings proposed to be brought are precisely within the time period contemplated within the Act.

12. [12]

    In my view, that fact creates a powerful basis for the grant of leave in the present case. However, the two further considerations raised by Basten J, bearing upon the question of leave, should be addressed, albeit briefly.

13. [13]

    In relation to the question of there being an arguable claim, it does appear to me that an action in negligence is at least arguable on the facts and circumstances as disclosed in the plaintiff's case to date. An expert opinion was obtained in the plaintiff’s case, in which Dr Denis Cauduro in a report dated 31 October 2024, stated that:

14. [14]

    I do not propose to recite the facts and circumstances which give rise to that opinion, other than to note that, on the material presently before the Court, the plaintiff was involved in reversing a truck during the course of his duties and moving to and from the truck on the occasion of wet conditions, and that he fell in those circumstances. That is sufficient, in my view, to discharge the second condition for leave.

15. [15]

    The issue of prejudice, being the third consideration, is a little difficult to reconcile in the present context, because of the same question or anomaly that I raised earlier. If the plaintiff is, strictly speaking, within time, then there can be no prejudice. On the other hand, if one approaches the question otherwise then in my view, the prejudice dissolves, such as it is, because of notice of the potential claim being served on the second defendant by the plaintiff. There are alternative grounds to relieve prejudice, which are unnecessary to consider in the present context. I agree with the submission advanced on behalf of the plaintiff, that any presumed prejudice arising from the grant of leave, is minimal or non-existent in the present case.

16. [16]

    In my view, the plaintiff has established that leave should be granted for the purposes of s151D of the Act.

ORDERS

1. [17]

   The Court makes the following orders:

   1. (1)

      The plaintiff shall have leave to extend the time limit of s 151D of the Workers Compensation Act 1987 (NSW), effective from 23 July 2024.

   2. (2)

      Costs of the motion shall be costs in the cause.