Aluminium Specialties Group Pty Ltd v Opokuware - [2021] NSWWCCPD 3

DETERMINATION OF AN APPLICATION TO STRIKE OUT A PRE-FILING STATEMENT
CITATION:	Aluminium Specialties Group Pty Ltd v Opokuware [2021] NSWWCCPD 3
APPLICANT DEFENDANT:	Aluminium Specialties Group Pty Ltd
RESPONDENT CLAIMANT:	Abraham Opokuware
FILE NUMBER:	1710/20
DATE OF DECISION:	19 January 2021
SUBJECT MATTER OF DECISION:	Application to Strike Out a Pre-Filing Statement; s 151DA of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	President Judge Phillips
HEARING:	On the papers
REPRESENTATION:	Applicant Defendant:	Mr T Ainsworth, solicitor HWL Ebsworth Lawyers
Respondent Claimant:	Unrepresented
ORDERS MADE ON APPLICATION:	1. Mr Opokuware’s pre-filing statement is struck out pursuant to s 151DA of the Workers Compensation Act 1987. 2. No order as to costs.

INTRODUCTION

This matter concerns an application filed by the applicant defendant employer seeking an order pursuant to s 151DA of the Workers Compensation Act 1987 (the 1987 Act) that the respondent claimant worker’s pre-filing statement be struck out. For the following reasons, the application is successful.

BACKGROUND

From approximately July 1992 to approximately October 2002, Mr Abraham Opokuware was employed by Arrowpak Packaging Pty Ltd (Arrowpak) as a pick packer. Mr Opokuware alleges that in or around 1993, he started to develop pain in his lower back whilst wrapping and packaging items weighing approximately 10kg. He further alleges that on or around 14 October 2002, he was placing a roll on a machine when he slipped and suffered an injury to his right knee.
From 8 May 2003 until 2010, Mr Opokuware was employed by the applicant defendant, Aluminium Specialties Group Pty Ltd (Aluminium Specialties).
Mr Opokuware alleges that on about 7 August 2009, he was packing metal sheets when he felt a sharp pain in his backside, resulting in intense pain in his hip and groin. He further claims that the nature and conditions of his employment with Aluminium Specialties, which involved the packing of aluminium frames weighing approximately 17 kgs, aggravated his pre-existing back injury.
In 2012, Mr Opokuware made a claim against both Arrowpak and Aluminium Specialties, seeking compensation in respect of injuries he suffered during the course of his employment. Mr Opokuware commenced proceedings in the Commission in 2013.
On 19 June 2014, Mr Opokuware’s claim before the Commission was resolved at a conciliation hearing. A Certificate of Determination – Consent Orders dated 20 June 2014[1] made orders for weekly payments for a closed period from 28 October 2010 to 28 April 2013 and s 60 expenses. The parties agreed to enter into a complying agreement providing for payment of the sum of $30,250 pursuant to s 66 of the 1987 Act in respect of 20% WPI (right lower extremity – hip).
[1] Pre-filing Statement, p 213.
On 31 July 2014, Mr Opokuware’s then solicitors (Turner Freeman Lawyers) gave notice to Aluminium Specialties of Mr Opokuware’s intention to bring a claim for work injury damages in respect of his right hip injury pursuant to s 282 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
On 28 October 2014, Mr Opokuware served a Pre-Filing Statement on Aluminium Specialties’ solicitors. Aluminium Specialties declined the claim in a s 74 notice dated 6 November 2014.
On 12 November 2014, Aluminium Specialties served a Pre-Filing Defence on Mr Opokuware’s solicitors.
On 28 November 2014, Mr Opokuware lodged an Application for Mediation to Resolve a Work Injury Damages Claim (matter no 6436/14) in the Commission. That application was served on 5 December 2014, and Aluminium Specialties filed a response on 19 December 2014.
The parties attended a mediation hearing on 19 February 2015 before Mediator Lancken, who issued a Certificate of Mediation that the parties did not resolve the dispute and settle the matter.
Aluminium Specialties submits the parties attended an informal settlement conference on 18 November 2016, which was unsuccessful in resolving the dispute. It also says that in June 2018, Mr Opokuware instructed new solicitors, Slater & Gordon Lawyers.
Annexed to the present Application to Strike Out a Pre-Filing Statement (the Application), is an email sent on 20 September 2018 from Slater & Gordon Lawyers to Aluminium Specialties’ solicitors (HWL Ebsworth) enquiring if it would consider making a further offer. The email further notes that Mr Opokuware’s solicitor may not be able “to obtain realistic instructions” from her client.
Aluminium Specialties further contends that the parties attended a further informal settlement conference on 25 (sic, 22) February 2019, which was also unsuccessful.
On 14 May 2019, Slater & Gordon Lawyers informed HWL Ebsworth by email[2] that they were in the process of terminating Mr Opokuware’s retainer as they were “unable to get any meaningful instructions from [Mr Opokuware].”
[2] Annexure B to the Application to Strike Out a Pre-Filing Statement.
Aluminium Specialties submits there has been no further progress in relation to the claim for work injury damages.
On 24 March 2020, Aluminium Specialties lodged the Application, seeking to strike out the Pre-Filing Statement.
The Commission’s file indicates that on 27 March 2020, the Commission contacted Slater & Gordon Lawyers by telephone who confirmed that they no longer acted for Mr Opokuware and that McDonnell Schroder Solicitors were now instructed.
In a telephone enquiry from the Commission later that day, McDonnell Schroder advised the Commission that they had only recently obtained instructions in relation to a s 66 claim, not in respect of work injury damages and were yet to receive the file from Slater & Gordon. McDonnell Schroder indicated that they would accept service of the present Application.
The Registrar issued a Direction dated 27 March 2020 that set a timetable for Aluminium Specialties to serve on Mr Opokuware a sealed copy of the Application. The Registrar also directed:
“By 21 April 2020 McDonnell Schroder Solicitors are to notify the Commission and the applicant defendant whether they have instructions to represent Mr Opokuware in the 11E Application and, if applicable, to advise the Commission of the timeframe required to file a Notice of Opposition (Form 11F).”
On 15 April 2020, McDonnell Schroder advised the Commission by email that due to the COVID-19 pandemic and shutdown, they were unable to obtain Mr Opokuware’s file from Slater & Gordon Lawyers.
On 20 April 2020, the Registrar issued a further Direction adjourning the matter for three months until 20 July 2020. McDonnell Schroder were directed to facilitate the transfer of Mr Opokuware’s file from Slater & Gordon, and Mr Opokuware was directed to inform the Commission as to his ability to respond on or before 20 July 2020.
On 18 June 2020, McDonnell Schroder advised the Commission by email that it had been unable to retrieve the file from Slater & Gordon and that it had been provided with some documents, but not a complete file, which appeared to have been lost. The Commission encouraged the parties to confer as to whether non-privileged material may be shared, and the parties were requested to provide an update to the Commission by 20 July 2020.
On 15 July 2020, McDonnell Schroder provided the Commission and Aluminium Specialties’ solicitors the following update by email:
“After a conference with our client on 9 July 2020, we gave an advice to Mr Opokuware which he did not accept.
We confirmed this advice to him in writing on 9 July 2020, seeking a response no later than 20 July 2020.
His response is to advise whether Mr Opokuware wishes to take our advice or if he has withdrawn his instructions.
We will advise as soon as we hear from Mr Opokuware or his new representatives.”
On the following day, McDonnell Schroder sent a further email to the Commission that it “now [had] formal instructions from Mr Opokuware that he is not prepared to accept our advices and we are no longer acting on his behalf.” McDonnell Schroder also noted they had advised Mr Opokuware “that he must seek new representation as a matter of urgency given the Strike Out Application and the date of 20 July 2020 listed in the WCC Direction dated 20 April 2020.” McDonnell Schroder provided the Commission with Mr Opokuware’s residential address and telephone numbers and was unable to provide the Commission with Mr Opokuware’s email address.
On 20 July 2020, two staff members from the Commission called Mr Opokuware and enquired whether he would be seeking new legal representation. Mr Opokuware indicated that he would be seeking new representation. A file note of those conversations records the Commission encouraged Mr Opokuware to contact the Law Society Referral Service or the Worker Compensation Independent Review Office’s Independent Legal Assistance and Review Service (ILARS), of which he was provided the contact details.
On 30 July 2020, the Commission again contacted Mr Opokuware by telephone, where he advised that he had not yet found a new lawyer.
Telephone calls from the Commission to Mr Opokuware were made on 10 and 12 August 2020, which were not answered. Voicemail messages were left on each occasion, variously requesting he advise whether he has obtained legal representation and that he return the Commission’s telephone calls. Mr Opokuware did not return the calls.
On 25 August 2020, the Commission sent, by Express Post, a letter to Mr Opokuware at the address which was provided by McDonnell Schroder. Included in the letter was a complete copy of the Application, a blank Notice of Opposition, as well as the contact details for ILARS and the Law Society Referral Service. The letter requested Mr Opokuware, or his solicitors, return the completed Notice of Opposition by no later than 22 September 2020. It also noted that if the Application to Strike Out a Pre-Filing Statement is granted, Mr Opokuware may lose his right to common law damages and that it is important he obtain legal advice urgently.
On 1 September 2020, the Commission’s Registry received the letter dated 25 August 2020, Application and attachments, which were returned to the Commission in a different envelope to that in which they were posted. There was no Notice of Opposition returned and no accompanying correspondence from Mr Opokuware.
The Commission’s file records that on 2, 3, and 4 September 2020, the Commission attempted to call Mr Opokuware by telephone. Those telephone calls were not answered. In the calls of 2 and 3 September, voicemail messages were left asking that the telephone calls be returned. Mr Opokuware did not return those calls.
On 8 September 2020, the Commission again attempted to contact Mr Opokuware by telephone, calling on an alternative number that was on the Commission’s file, which was disconnected. Another staff member of the Commission then attempted to call Mr Opokuware on his mobile telephone and left a message requesting he return the Commission’s call. Mr Opokuware did not return the calls.
On 15 September 2020, the Commission sent a further letter to Mr Opokuware by registered post, which was delivered on 18 September 2020. That letter attached a blank Notice of Opposition and noted that if the Application is granted, Mr Opokuware may lose his right to pursue common law damages, and requested a response from him by 23 September 2020. The letter further noted that in the event that he does not respond, the matter will be allocated to me for determination.
On 28 September 2020, Mr Opokuware called the Commission. He advised that he has not been well, he wishes to get a lawyer and requested an extension of time to seek legal representation. By email, Aluminium Specialties’ solicitors consented to an extension until 26 October 2020. Its solicitors noted that in the event that any further extensions would be sought, it requested medical evidence be provided. On 29 September 2020, the Commission posted Mr Opokuware a letter confirming that the time for him to seek legal advice had been extended until 26 October 2020. That letter further noted that if any further extensions were to be sought, the Commission would require Mr Opokuware provide evidence in support of any such application.
Mr Opokuware did not contact the Commission in response. On 27 October 2020, the Commission called Mr Opokuware and left a voicemail requesting he return the Commission’s call. Mr Opokuware did not return that call. On the following day, 28 October 2020, the Commission again called Mr Opokuware, which was not answered. A file note records no message was left as the connection dropped out during the automated greeting. On 29 October 2020, Ms Taylor from the Commission again called Mr Opokuware. She recorded the following in a file note of that call:
“I phoned Mr Opokuware on his mobile phone … . Mr Opokuware answered, I introduced myself and that I was calling from the Workers Compensation Commission, and confirmed that he was Mr Opokuware. I told him I was calling to find out how he was progressing with the Application to strike out the pre-filing statement. Mr Opokuware said he does not know anything about an application to strike out a pre-filing statement. He said he has no application and I said that the application was filed by the insurer. He said the insurer has not told him this and I clarified that it was the insurer’s solicitor, and that the Commission has spoken to him and sent him correspondence on a number of occasions about this. Mr Opokuware insisted that he has had nothing to do with the Commission. I said that I had previously spoken to him on the phone as had Nyomi Gunasekera [Senior Lawyer at the Commission]. He denied speaking to Nyomi. I said that the Commission has sent him a number of letters. He said ‘I don’t have any dealings with the Commission’, and I tried to explain that I am from the Commission. He was becoming agitated and said ‘If you have something to do with the Commission go and do it. I don’t have anything to do with the Commission’ and he hung up the phone.”
I note that at the time of writing this decision, Mr Opokuware has not lodged a Notice of Opposition or responded to the requests above that he advise if he has obtained legal representation.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Direction Number 1, the documents that are before me, and the submission by the applicant defendant that the matter can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

LEGISLATION

Section 151DA of the 1987 Act provides:
“151DA Time not to run for commencement of proceedings in certain cases
(1)    Time does not run for the purposes of section 151D:
(a1)while the determination of the claim concerned is delayed as permitted by section 281 of the 1998 Act, but not including delay beyond 2 months after the claimant has provided all relevant particulars about the claim as required by section 281(2)(b) of that Act, or
Note—
Delay in determining a claim beyond 2 months is only permitted on the basis that degree of permanent impairment is not fully ascertainable and the insurer has notified the claimant of this. In such a case, paragraph (a) of this subsection can apply (if a dispute about whether degree of permanent impairment is fully ascertainable is the subject of medical assessment) to further prevent time running for the purposes of section 151D.
(a)while a medical dispute as to whether the degree of permanent impairment of the injured worker is at least 15%, or whether the degree of permanent impairment of the injured worker is fully ascertainable, is the subject of a referral for determination by the Commission or a referral for assessment under Part 7 of Chapter 7 of the 1998 Act (including any further assessment under section 329 of that Act), or
(a2)during the period of 1 month after an offer of settlement is made to the claimant pursuant to the determination of the claim as and when required by the 1998 Act, or
(a3)while an assessment under Part 7 of Chapter 7 of the 1998 Act in respect of a medical dispute referred to in paragraph (a) is the subject of a pending appeal under section 327 of the 1998 Act, or
(b)while a pre-filing statement served in accordance with section 315 of the 1998 Act in respect of the claim concerned remains current.
(2)     A pre-filing statement remains current from the time it is served until it is struck out under this section on the application of the person (the defendant) on whom it was served or it is withdrawn by the person who served it, whichever happens first.
(3)     The defendant may apply to the President to have the pre-filing statement struck out by order of the President. Such an application may not be made until at least 6 months have elapsed after the defendant served on the claimant a defence to the claim in accordance with section 316 of the 1998 Act.
(4)     The President may order that a pre-filing statement be struck out but must not do so if satisfied that the degree of permanent impairment of the injured worker is not yet fully ascertainable and the matter is the subject of a referral under Part 7 of Chapter 7 of the 1998 Act for assessment of the degree of permanent impairment of the injured worker.
(5)     A medical dispute is considered to be the subject of a referral for assessment under Part 7 of Chapter 7 of the 1998 Act even if the approved medical specialist has declined to make an assessment of the degree of permanent impairment of the injured worker until satisfied that the degree of permanent impairment is fully ascertainable.
(6)     The President may delegate to a Deputy President any function of the President under this section (except this power of delegation), but only if the President is satisfied that the delegation is necessary to avoid a conflict of interest or the appearance of bias.”

ALUMINIUM SPECIALTIES’ SUBMISSIONS

At the commencement of its submissions, Aluminium Specialties sets out a chronology of events preceding the lodging of the Application.
Aluminium Specialties submits that the procedural requirements to bring this Application have been met. It contends that six months have elapsed since it served a Pre-Filing Defence on 12 November 2014, satisfying the requirement in s 151DA(3) of the 1987 Act. It also argues that the requirement in s 151DA(4) has been satisfied as Mr Opokuware’s lump sum claim pursuant to s 66 of the 1987 Act was resolved in a complying agreement dated 19 June 2014, which provided for the payment of compensation in respect of 20% whole person impairment for injury arising from the injury of 7 August 2009.
In support of the Application, Aluminium Specialties advances four grounds. It is convenient to set out each in turn.

Ground One: Mr Opokuware’s delay

Aluminium Specialties refers to Workers Compensation Nominal Insurer v England,[3] where Keating P said: “factors such as the reasons for the delay and any prejudice to the defendant are clearly relevant factors in the exercise of the discretion under s 151DA(3).”
[3] [2011] NSWWCCPD 41 (England).
Referring to the date of injury of 7 August 2009, Aluminium Specialties maintains that the limitation period in which Mr Opokuware was to bring a claim for work injury damages expired on 7 August 2012 pursuant to s 151D of the 1987 Act. It submits that more than 10 years have elapsed since the date of injury and more than five years have elapsed since it conceded that the claim “had breached the requisite threshold to bring a claim for work injury damages”.

Aluminium Specialties quotes the following extract by Sheahan P in Pasminco Cockle Creek Smelter Pty Ltd v Gardner,[4] in which his Honour said:
“It is clearly not the intention of the legislature that the time limit within which a claimant may bring work injury damages proceedings should be extended indefinitely by the operation of these provisions. Claimants must actively pursue the required steps throughout this pre-litigation process. The pre-filing statement should remain current for the purpose of completing those required steps.”[5]
[4] [2006] NSWWCCPD 108 (Pasminco).
[5] Pasminco, [15].
Aluminium Specialties submits there has been considerable delay by Mr Opokuware in prosecuting the claim and Mr Opokuware has not made any attempt to explain the reasons for such delay. It argues a lack of response by Mr Opokuware has caused it concern as to the ability of Mr Opokuware to prosecute his claim for work injury damages. It notes Mr Opokuware has not commenced proceedings in the District Court despite being entitled to commence proceedings in the District Court since February 2015.

Ground Two: Want of prosecution by Mr Opokuware

Aluminium Specialties submits the Pre-Filing Statement ought to be struck out on the basis of Mr Opokuware’s want of prosecution and his “unwillingness to co-operate even with the benefit of legal advice.” It contends it has made various genuine attempts to progress the matter and resolve the claim. It says that it has not received a substantive response from him, “nor any reasonable attempts by [Mr Opokuware] to reach a resolution.”[6]
[6] Aluminium Specialties’ submissions, [32].
Reference is made to the contact that Aluminium Specialties’ solicitors made in 2015 to Turner Freeman Lawyers who were then representing Mr Opokuware and Turner Freeman’s response that their instructions had been withdrawn and Mr Opokuware’s file had been sent to another legal representative. Aluminium Specialties submits it was informed in May 2016 that Turner Freeman Lawyers had been reinstated and had received further instructions in relation to Mr Opokuware’s claim.
Aluminium Specialties notes Mr Opokuware’s solicitors sought to participate in further settlement discussions at an informal settlement conference, which it agreed to participate in. At the informal settlement conference on 18 November 2016, Aluminium Specialties contends Mr Opokuware did not convey an offer. At the request of Mr Opokuware’s solicitors, Aluminium Specialties says it conveyed an offer that was open for two weeks, which Mr Opokuware ultimately did not accept.
Aluminium Specialties says that it is its understanding that Mr Opokuware then sought to instruct LHD Lawyers to act for him and that retainer was shortly thereafter terminated. It says that thereafter Slater & Gordon were instructed to act for Mr Opokuware.
On 6 June 2018, Aluminium Specialties’ solicitors attempted to arrange for a further informal settlement conference to occur on 12 June 2018. It says Mr Opokuware was unavailable to attend that conference.
Aluminium Specialties submits that even with legal representation, Mr Opokuware continues to seek unrealistic sums of compensation that are “enough for him to buy a house” and “millions of dollars”. It has annexed an email dated 20 September 2018 to its submissions from Slater & Gordon Lawyers sent to its legal representatives, which it relies upon in support of this.
It says that on that occasion its solicitors were invited to convey an offer on its behalf. Aluminium Specialties submits that despite conveying an offer, it received no response from Mr Opokuware.
At an informal settlement conference that was held on 22 February 2019 arranged at Mr Opokuware’s request, it is said that his legal representatives took almost two hours to ascertain instructions from Mr Opokuware to make the opening offer. Aluminium Specialties submits his “offer also exceeded his certificate offer of 19 February 2015”. Aluminium Specialties submits it made a further offer in good faith but Mr Opokuware’s solicitors were unable to obtain instructions to make any further offer.
Aluminium Specialties relies upon an email dated 14 May 2019, which it has annexed to its submissions, in which its solicitors were informed by Mr Opokuware’s solicitors that they were in the process of terminating Mr Opokuware’s retainer on the basis of their inability to obtain “meaningful instructions”.
It submits that Mr Opokuware’s position and unwillingness to co-operate at the mediation and subsequent two informal settlement conferences have caused it “great concern” as to Mr Opokuware’s intentions and desire to resolve his claim for work injury damages. It further submits that to the best of its knowledge, Mr Opokuware has been represented by a number of law firms that have terminated his retainer on the basis that they had been unable to obtain any meaningful instructions from him.
Aluminium Specialties contends that having regard to Mr Opokuware’s inaction to take steps to resolve the claim or commence proceedings to have the claim determined, coupled with his unrealistic expectations regarding the outcome of the claim and failure to take advice from his legal representatives, the Pre-Filing Statement should be struck out.

Ground Three: Insufficient evidence adduced by Mr Opokuware

Aluminium Specialties submits that Mr Opokuware has failed to serve a report from an expert witness and failed to provide a statement in support of his claim. It says that Mr Opokuware has not sought to remedy this deficiency and that he has not adduced further and relevant evidence since the Pre-Filing Statement was served on 28 October 2014. Aluminium Specialties submits Mr Opokuware “has taken no significant steps to progress the matter on an evidentiary basis” since the failed mediation and informal settlement conference attempts in 2015, 2016 and 2019.

Ground Four: Prejudice to the Defendant

In the final ground in support of its application, Aluminium Specialties submits that it is prima facie prejudicial to it, having regard to the passage of time since the date of injury, for Mr Opokuware’s action to be allowed to progress and continue in the absence of prosecution. It argues that given Mr Opokuware’s allegations of negligence are directed to the nature and conditions of employment between 8 May 2003 and 7 August 2009, Aluminium Specialties would be unfairly prejudiced as:
(a) systems of work are likely to have significantly changed over time, particularly since 2003, and
(b) the credibility of witness accounts, if any witnesses are located at all, are likely to be questioned due to the effluxion of time.

MR OPOKUWARE’S SUBMISSIONS

As noted above, Mr Opokuware has not lodged any submissions or Notice of Opposition.

RELIEF SOUGHT

Aluminium Specialties seeks that Mr Opokuware’s Pre-Filing Statement served on 27 October 2014 be struck out pursuant to s 151DA of the 1987 Act. Aluminium Specialties also seeks that Mr Opokuware pay its costs of this Application.

DISCUSSION

A claim for work injury damages must be brought within three years after the date of injury, except with leave of the court.[7] However, time may be suspended for one of the reasons set out in s 151DA of the 1987 Act. Section 151DA(1)(b) of the 1987 Act suspends time for the purposes of s 151D while a pre-filing statement in respect of the claim remains current. That is, until the Pre-Filing Statement is struck out on the application of Aluminium Specialties or withdrawn by Mr Opokuware.
[7] Section 151D of the 1987 Act.
An employer may apply to have the pre-filing statement struck out by order, once six months have elapsed after it served the pre-filing defence (s 151DA(3) of the 1987 Act). A pre-filing statement may be struck out by order if the degree of permanent impairment is fully ascertainable (s 151DA(4) of the 1987 Act).
There are no impediments presented by s 151DA(3) or (4) of the 1987 Act to the Application being determined at this time. More than six months have elapsed since Aluminium Specialties served the pre-filing defence and the medical evidence indicates that the degree of permanent impairment is fully ascertainable.
There are sound policy reasons for the inclusion of s 151DA(3) in the 1987 Act. The provision ensures that the parties have sufficient time to finalise the pre-litigation phase of the proceedings.[8] It also ensures that there is a degree of certainty to the process and enables the parties to explore resolution and/or mediation of the claim before embarking on litigation.
[8] Pasminco.
It is now over six years since Mr Opokuware gave notice on 31 July 2014 to Aluminium Specialties of his intention to bring a claim for work injury damages. The mediation occurred on 19 February 2015 and informal settlement conferences occurred on 18 November 2016 and 25 February 2019. Mr Opokuware has not progressed the matter since the last informal settlement conference. I also note that there have been significant periods of time spanning between the mediation and the two informal settlement conferences.
The emails annexed to Aluminium Specialties’ submissions are indicative of an unwillingness on the part of Mr Opokuware to resolve the claim.
As submitted by Aluminium Specialties, I also note that Mr Opokuware was entitled to commence proceedings in the District Court since 2015, which he has not done so.
The chronology above indicates that Mr Opokuware has been advised by multiple legal representatives. It is also indicative of the delay in resolving this matter. Apart from an assertion made in a telephone call on 28 September 2020 that he had been unwell, Mr Opokuware has not provided any explanation of the reasons for delay. As noted in England,[9] prejudice to the defendant and the reasons for delay are clearly relevant factors in the exercise of the discretion under s 151DA(3) of the 1987 Act.
[9] England, [31].
Further, following the lodgment of the Application, the Commission has provided Mr Opokuware with multiple opportunities to lodge a Notice of Opposition to the Application. Contact has been made in numerous attempts by post and telephone. To date, no Notice of Opposition has been lodged.
The Commission has made contact with Mr Opokuware on a number of occasions. Within the past 18 months, the only difficulty he has had is in relation to obtaining legal representation, but over time it is apparent that he has had access to legal advice. Nowhere has Mr Opokuware given an indication of any difficulty he has had in preparing his case, or an inability to obtain evidence, or that his medical condition has not stabilised. In short, he has not pointed to any reason which would cause me to exercise my discretion in his favour. The only problem is his inability to retain and maintain a legal adviser.
I am further conscious of the effluxion of time since the injury and the notice being given of the intention to make the claim. As submitted by Aluminium Specialties, it faces prejudice by the proceedings being protracted.
In view of the delay in this matter caused by the conduct of Mr Opokuware and the absence of sufficient explanation of the reasons for the delay, together with the prejudice that Aluminium Specialties faces, and in all of the circumstances, I consider it appropriate to exercise my discretion to strike out the pre-filing statement.

DECISION

Mr Opokuware’s pre-filing statement is struck out pursuant to s 151DA of the Workers Compensation Act 1987.
No order as to costs.

Judge Phillips
President

19 January 2021