Brooks Farms Pty Ltd v Summers
[2025] NSWPICPD 72
•15 October 2025
| DETERMINATION OF AN APPLICATION TO STRIKE OUT A PRE‑FILING STATEMENT | |
CITATION: | Brooks Farms Pty Ltd V SUMMERS [2025] NSWPICPD 72 |
APPLICANT DEFENDANT: | Brooks Farms Pty Ltd |
RESPONDENT CLAIMANT: | Jamie David Summers |
INSURER: | GIO General Limited |
FILE NUMBER: | W10327/25 |
PRESIDENTIAL MEMBER: | President Judge Phillips |
DATE OF DECISION: | 15 October 2025 |
ORDERS MADE ON APPLICATION: | 1. The respondent claimant’s Pre-Filing Statement dated 6 August 2024 is struck out pursuant to s 151DA(3) of the Workers Compensation Act 1987. 2. No order as to costs. |
CATCHWORDS: | WORKERS COMPENSATION – Pre-Filing Statement struck out by order of the President – sections 151DA(3) and 151DA(4) of the Workers Compensation Act 1987 considered and applied – Luke v McCarthy [2008] NSWWCCPD 123 applied |
HEARING: | On the papers |
REPRESENTATION: | Applicant defendant: |
| Ms M Lewis, solicitor | |
| Rankin Ellison Lawyers | |
| Respondent claimant: | |
| Ms S Sutcliffe, solicitor | |
| Don Cameron & Associates | |
INTRODUCTION
The applicant/defendant, Brooks Farms Pty Limited, seeks to strike out the respondent/claimant’s, Jamie David Summers, Pre-Filing Statement (PFS). The strike out application and attached submissions in support were signed by the applicant on 28 August 2025. These submissions are annexed to this decision and marked with the letter “A”.
The filing of a PFS is a necessary pre-condition before the commencement of court proceedings claiming work injury damages.[1] A PFS remains current until struck out or withdrawn by the person who filed it.[2] An application to strike out a PFS may not be made until at least six months have elapsed since the defence to the PFS was served on the claimant.[3] A PFS may not be struck out if the injured worker’s degree of permanent impairment is not fully ascertainable.[4]
[1] Section 315 of the Workplace Injury Management andWorkers Compensation Act 1998.
[2] Section 151DA(2) of the Workers Compensation Act 1987 (1987 Act).
[3] Section 151DA(3) of the 1987 Act.
[4] Section 151DA(4) of the 1987 Act.
Matters which are relevant to the exercise of the discretion to strike out a PFS were discussed in John Lacey Earth Moving Pty Ltd v Campbell-Willis[5] by Acting President Byron at [46]. Byron AP noted in that matter that there was no evidence that court proceedings had been commenced, nor that any active steps to resolve the matter had been taken and that the respondent/claimant had been given every opportunity to be heard in response to the application to strike out the PFS and had failed to do so. President Keating in Luke v McCarthy[6] stated that the policy underpinning s 151DA(3) of the Workers Compensation Act 1987 (the 1987 Act) was to give parties sufficient time to finalise all pre-litigation requirements. His Honour further recorded that the section provided certainty by not extending time indefinitely while the PFS was current.
[5] [2007] NSWWCCPD 197.
[6] [2008] NSWWCCPD 123 (Luke v McCarthy).
The applicant has provided a history of the matter in Annexure “A” beneath the heading “Background”. It is apparent from a consideration of this aspect of the submissions, that the requirements of ss 151DA(3) and (4) of the 1987 Act have been met. In particular, the Personal Injury Commission of New South Wales (Commission) issued a Certificate of Determination in matter no. W5277/23 on 14 September 2023 ordering payment to the respondent worker of benefits under s 66 of the 1987 Act in respect of 39% whole person impairment resulting from an injury suffered on 14 November 2014 (incorrectly recorded as 7 November 2014 on the Certificate).
The PFS in this matter was served on 6 August 2024. The respondent had been employed by the applicant as a farm hand at the applicant’s farm in Barooga, NSW. On 14 November 2014 while in the course of his employment with the applicant, the respondent suffered injury to his neck and right shoulder. A defence to the PFS was served on 16 September 2024. A mediation conducted by a Commission mediator took place on 15 November 2024, which was not successful in resolving the dispute.
I would note that at all times in this dispute, both parties have been legally represented.
The respondent’s legal representative, Messrs Don Cameron and Associates, on 3 October 2025 have confirmed their client’s instructions in response to this application are to neither consent to nor oppose the application.
DISCUSSION
The history of the matter as described in Annexure “A” has not been disputed. The events subject to these proceedings took place on 14 November 2014, almost eleven years ago. The limitation period provided for in s 151D(2) of the 1987 Act expired in November 2017, almost 8 years ago. This does not mean that these proceedings are a nullity, s 151D of the 1987 Act has been held to be a procedural provision.[7] This does mean, however, that the utility of the PFS extending time for the respondent in which to bring work injury damages proceedings is nugatory.
[7] Maricair v Principal and Councillors of Wesley College (2000) 19 NSWCCR 368.
In light of the respondent’s decision not to resist this application or challenge any of the matters put by the applicant, this is a powerful factor in granting the orders. The cause of action arose almost eleven years ago. The applicant asserts that it is suffering prejudice in the defence of the proceedings due to this delay. Although the applicant does not identify any specific matter of prejudice, for example a witness no longer being available, I accept that some prejudice would arise due to the effluxion of time. Memories will doubtless be less reliable.
As I said in NSW Police Force v Fajloun[8] at [14], which is relied on by the applicant, the filing of a PFS is not designed to “park” a work injury damages claim until a worker decides it is opportune to proceed. It is designed to enable all pre-litigation steps to be finalised, and the matter then proceeds in the Courts.[9] The required steps have been completed in this matter. The respondent has taken no active steps to progress this matter since 15 November 2024. I have been provided with no evidence showing that the respondent has commenced court proceedings in relation to the 14 November 2014 accident while working for the applicant. The respondent has not evinced any intention to pursue these proceedings, even after this application had been made. Finally, since the respondent does not oppose these orders and having regard to what I have set out above, I consider that it is therefore appropriate to exercise my discretion to strike out the PFS.
[8] [2024] NSWPICPD 77.
[9] Luke v McCarthy, [29], per President Judge Keating.
The applicant does not seek an order for costs. No such order will be made.
DECISION
The respondent claimant’s Pre-Filing Statement dated 6 August 2024 is struck out pursuant to s 151DA(3) of the Workers Compensation Act 1987.
COSTS
No order as to costs.
Judge Phillips
PRESIDENT
15 October 2025
Annexure “A”
Submissions in support of the Application to Strike Out a Pre-Filing Statement
Background
The Respondent sustained injury on 14 November 2014 during the course of his employment.
A Medical Assessment Certificate dated 12 September 2023 of Dr Tim Anderson, Occupational Physician, confirmed the Respondent’s injuries were assessed at 39% WPI.
The Respondent served a claim for work injury damages by way of correspondence dated 26 March 2020.
The Respondent served the Applicant their Pre-Filing Statement by way of correspondence dated 6 August 2024.
The Applicant served their Pre-Filing Defence on 16 September 2024.
The Respondent served a Form 11C – Application for Mediation to Resolve Work Injury Damages Claim on 25 September 2024.
Both the Applicant and the Respondent attended a Mediation on 15 November 2024 and was not successful.
A Certificate of Mediation outcome was issued dated 3 December 2024.
Rankin Ellison Lawyers acts on behalf of the Applicant.
Don Cameron and Associates acts on behalf of the Respondent.
The following correspondence has been exchanged as to the Respondent’s intentions for this claim:
Orders Sought and Submissions in Support
The Applicant submits that the Pre-Filing Statement ought to be struck out pursuant to section 151DA(3) of the Workers Compensation Act 1987.
A period greater than six months has elapsed since the Applicant’s service of the Pre-Filing Defence pursuant to section 316 of the Workplace Injury Management and Workers Compensation Act 1998. The requirements of section 151DA(3) have therefore been met.
The Respondent’s injuries have been assessed at 39% WPI, and there is no impediment in respect of section 151D(4) of the Workplace Injury Management and Workers Compensation Act 1998.
The Applicant submits that there is no evidence to support that the Respondent has taken any steps to progress her claim since the Mediation held on 15 November 2024.
As stated by President Judge Phillips in NSW Police Force v Fajloun [2024] NSWPICPD 77:
“The filing of a PFS is not designed to ‘park’ a work injury damages claim until a worker decides it opportune to proceed. This is contrary to the legislative purpose as stated by President Keating in Luke v McCarthy, which is to enable the parties to finalise all pre-litigation steps. Those steps have self evidently been completed in this matter. If the respondent does not wish to proceed, then it is proper and appropriate to strike out the PFS.” [at 14]
As stated by President Justice Terry Sheahan in Pasminco Cockle Creek Smelter Pty Ltd v Gardner [2006] NSWWCCPD 108:
“It is clearly not the intention of the legislature that the time limit 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.” [at 15]
The Applicant submits that the Respondent has had ample time to complete the pre-litigation phase of the proceedings and file a Statement of Claim. As stated by President Judge Keating in [Luke v McCarthy]
“There are sound policy reasons for the inclusion of section 151DA(3) in the 1987 Act. Its inclusion in the Act is to provide the parties with sufficient time to finalise the pre-litigation phase of the proceedings. It brings a degree of certainty to the process and enables the parties to explore resolution and/or mediation of the claim, before embarking on litigation.” [at 29]
The Applicant submits that it has been prejudiced by the Respondent’s substantial delay in pursuing proceedings and continues to be prejudiced by the operation of section 151DA(1)(b) which stops time for the purposes of section 151D while the Pre-Filing Statement is current (Workers Compensation Nominal Insurer v England [2011] NSWWCCPD 41).
The Applicant seeks the following orders:
The Pre-Filing Statement can be struck out pursuant to section 151DA(3) of the Workers Compensation Act 1987; and
No order as to costs.
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