A & a Arbor Tree Service Pty Ltd v Preiss
[2025] NSWPICPD 44
•27 May 2025
| DETERMINATION OF AN APPLICATION TO STRIKE OUT A PRE‑FILING STATEMENT | |
CITATION: | A & A Arbor Tree Service Pty Ltd v Preiss [2025] NSWPICPD 44 |
APPLICANT DEFENDANT: | A & A Arbor Tree Service Pty Ltd |
RESPONDENT CLAIMANT: | Justin Preiss |
INSURER: | Employers Mutual NSW Limited |
FILE NUMBER: | W1224/25 |
PRESIDENTIAL MEMBER: | President Judge Phillips |
DATE OF DECISION: | 27 May 2025 |
ORDERS MADE ON APPLICATION: | 1. The respondent claimant’s Pre-Filing Statement served 9 February 2023 is struck out pursuant to s 151DA(3) of the 1987 Act. 2. Each party is to bear its own costs of these proceedings, including this application. |
CATCHWORDS: | WORKERS COMPENSATION – inability to establish service of Application to Strike Out a Pre-Filing Statement – sections 151D(2) and 151DA(1)(b) of the Workers Compensation Act 1987 – Luke McCarthy [2008] NSWWCCPD 123 considered and applied – limitation period had expired prior to service of Pre-Filing Statement – Pre-Filing Statement struck out by order of the President |
HEARING: | On the papers |
REPRESENTATION: | Applicant Defendant: |
| Ms M McDonald, solicitor | |
| Rankin Ellison Lawyers | |
| Respondent Claimant: | |
| No appearance/Not represented | |
INTRODUCTION
The applicant defendant, A & A Arbor Tree Service Pty Ltd (applicant) seeks to strike out the respondent claimant’s, Justin Preiss (respondent), Pre-Filing Statement (PFS).
The history of this matter is as follows. The respondent was employed by the applicant as an arborist. The respondent suffered injury while working for the applicant on 14 November 2018 at Cherrybrook, NSW. The respondent fell, suffering injury to his cervical spine and left shoulder.
The respondent made a claim for lump sum compensation. A Certificate of Determination was issued by the Personal Injury Commission (Commission) on 17 February 2022 assessing the respondent’s whole person impairment at 16% for the cervical spine and left upper extremity. The respondent, through his lawyers, issued section 281/282 particulars making a claim for work injury damages. The respondent then served a PFS on 9 February 2023. The applicant served a defence to the PFS dated 21 March 2023. The applicant has arranged a number of medical examinations for the respondent to attend, none of which the respondent attended. The applicant states that there are no outstanding referrals as contemplated in Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). I would also note that this matter has not been the subject of a Commission mediation as contemplated by s 318A of the 1998 Act.
This application to strike out the respondent’s PFS was served on the respondent’s solicitors, Messrs Firths, on 6 February 2025. On 25 February 2025, Firths responded by advising the applicant that they no longer held instructions to act for the respondent. They advised the applicant to take steps to serve the respondent with this application, providing information about the respondent’s last known contact details being two residential addresses and two email addresses. The applicant then took steps to effect service of the application upon the respondent by emailing the respondent, sending the documents by registered post, and finally by recourse to process servers attempting to serve the respondent in person. None of these attempts has been successful in serving the respondent with this application.[1]
[1] The applicant’s solicitors have set out in detail the steps they have undertaken to attempt service of the application upon the respondent in a letter addressed to the Commission dated 13 May 2025.
DISCUSSION
Notwithstanding significant efforts by the applicant to effect service of the strike out application on the respondent, who is seemingly unrepresented since Firths advised that they no longer had instructions, there is no evidence that the respondent has been served with the application let alone that he is aware that the application has been made.
I would also record that the Commission has sent letters and emails dated 8 May 2025 to the respondent’s last known residential and email addresses. In these communications, the respondent was advised of the fact of the application and that in the absence of a response to this application, he would run the risk that the application would be decided in his absence. No answer to the Commission’s correspondence has been forthcoming.
In John Lacey Earth Moving Pty Ltd v Campbell-Willis,[2] Acting President Byron at [46] listed a number of relevant considerations to be taken in account when considering striking out a PFS. One of these factors is whether the claimant (respondent) has been given every opportunity to be heard on the application. I accept that the applicant has attempted, by utilising various different means, to locate the respondent in order to serve the application. These actions have not been successful. I do not have any evidence that the respondent has either been served or is even aware of the fact of this application. This fact militates against the making of the orders sought by the applicant.
[2] [2007] NSWWCCPD 197.
However, since the PFS was served on 9 February 2023, over two years ago, the respondent has taken no active steps to pursue his claim. As President Judge Keating said in Luke v McCarthy,[3] the policy behind s 151DA of the Workers Compensation Act 1987 (the 1987 Act) is to give parties an opportunity to finalise all pre-litigation steps. It is not the function of this provision to extend time indefinitely.
[3] [2008] NSWWCCPD 123
I would also remark that the cause of action in this matter arose on 14 November 2018. The limitation period provided in s 151D(2) of the 1987 Act expired on 14 November 2021. Any suspension of the limitation period in s 151D of the 1987 Act by the filing of the PFS, as contemplated by s 151DA(1)(b), is therefore ineffective to extend the limitation period in this matter as the PFS was not served until 9 February 2023. Should the respondent wish to pursue his work injury damages claim in the courts, he will inevitably be required to seek leave to bring the claim out of time as provided for in s 151D(2) of the 1987 Act.
In making an order striking out a PFS, depending upon the circumstances, the litigant may then suffer a limitation problem in any subsequent court proceedings that may be commenced. That is, the litigant has to apply for leave of the court. This is a factor to weigh when considering whether to strike out a PFS. However, this consideration is not of much weight in this matter given the history and the fact that the limitation period had expired well prior to the PFS being served. I note too that in the defence to the PFS, the applicant has given notice of its intention to rely on its limitation defence.[4]
[4] At paragraph [12] of its Pre-Filing Defence.
This matter is finely balanced. The fact that the respondent is not aware of the application and has apparently not been served with the application is a powerful discretionary factor against making the order. A number of steps have been taken to inform the respondent, by both the applicant and this Commission, all of which have either been unsuccessful or elicited no response.
Since serving the PFS on 9 February 2023, the respondent has not diligently pursued these proceedings. The matter has effectively sat in abeyance for over two years. Keeping the PFS current will not serve to suspend time for limitation purposes, that time bar having expired well prior to the PFS being served. Whether the PFS is struck out or not, were the respondent to pursue his damages action in the courts, he will of necessity have to seek leave.[5] I therefore do not consider that any prejudice, additional to any which the respondent currently possesses, will be occasioned if I were to make the orders sought.
[5] Section 151D(2) of the 1987 Act.
Patently the respondent is aware that he is a party to these proceedings. A citizen who commences proceedings in the courts and tribunals of this state, as is their right, has a responsibility to diligently progress the claim in accordance with the statutory mandate of the particular institution the claim is filed in. The Commission’s statutory mandate requires the just, quick and cost-efficient resolution of the real issues in dispute with as little formality as possible.[6] This mandate cannot be achieved if litigants do not prepare and progress their cases
[6] Section 3(c) of the Personal Injury Commission Act 2020.
I have examined the history of this matter. Even before the respondent’s solicitors advised that they were without instructions from the respondent, the matter was not being actively progressed, and this has effectively been the case since the PFS was served. The applicant had arranged a number of medical examinations which the respondent failed to attend.
I am satisfied that the pre-requisites for the making of the order under s 151DA of the 1987 Act have been made out. As I said, the matter is finely balanced. However, I am much persuaded by the fact that the proceedings already have a limitation issue, so striking the matter out will not create that issue. I am also much concerned that the respondent has not actively progressed the proceedings since the PFS was served.
I will therefore make the orders striking out the PFS. Given that I have not heard from the respondent and my assumption is that the respondent is unaware of this application, I will not make any costs order adverse to the respondent.
DECISION
The respondent claimant’s Pre-Filing Statement served 9 February 2023 is struck out pursuant to s 151DA(3) of the 1987 Act.
COSTS
Each party is to bear its own costs of these proceedings, including this application.
Judge Phillips
President
27 May 2025
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