Burwood Council v Giangrasso - [2018] NSWWCCPD 33

DETERMINATION OF AN APPLICATION TO STRIKE OUT A PRE-FILING STATEMENT
CITATION:	Burwood Council v Giangrasso [2018] NSWWCCPD 33
APPLICANT DEFENDANT:	Burwood Council
RESPONDENT CLAIMANT:	Giuseppe Giangrasso
FILE NUMBER:	2683/18
DATE OF DECISION:	9 August 2018
SUBJECT MATTER OF DECISION:	Application to Strike Out a Pre-Filing Statement; s 151DA of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Applicant Defendant:	Haille Paine
Respondent Claimant:	Self-represented
ORDERS MADE ON APPLICATION:	1. Mr Giangrasso’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

In 1991, Giuseppe Giangrasso commenced work for Burwood Council as a labourer. He was later promoted to the role of team leader.
On 4 March 2009, Mr Giangrasso ceased work for Burwood Council alleging he suffered a psychological injury as a result of an investigation of corrupt conduct.
On 11 May 2009, Mr Giangrasso lodged a claim for weekly compensation in respect of the psychological injury.
On 5 June 2009, the insurer issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It disputed liability pursuant to s 11A of the 1987 Act, on the basis that any injury arose from the reasonable actions of Burwood Council with respect to “discipline or employee benefits”. That decision was confirmed by the insurer on 7 and 10 July 2009, following an internal review.
On 26 November 2009, Mr Giangrasso made a claim for permanent impairment compensation in respect of 16% whole person impairment pursuant to s 66 of the 1987 Act and $30,000 for pain and suffering pursuant to s 67 of the 1987 Act, in respect of the psychological injury. The claim for s 66 benefits was later amended to 15% whole person impairment, on 18 October 2011.
On 28 January 2010, the insurer issued a further s 74 notice disputing liability for the permanent impairment claim. It disputed the claim on the basis that Mr Giangrasso did not suffer any injury arising out of or in the course of employment with Burwood Council, and, if he did, that injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by Burwood Council pursuant to s 11A of the 1987 Act.
On 6 June 2011, Mr Giangrasso returned to work on a graduated return to work plan.
Subsequently, Burwood Council accepted the claim for weekly compensation, however, the claim for permanent impairment compensation remained in dispute.
On 28 February 2012, Mr Giangrasso lodged an Application to Resolve a Dispute (the lump sum claim). He sought lump sum compensation for permanent impairment and pain and suffering. On 21 March 2012, Burwood Council lodged a reply to that application disputing liability relying on the s 74 notices.
On 5 April 2012, Mr Giangrasso made a claim for work injury damages.
On 1 May 2012, the lump sum compensation claim was listed for telephone conference before Arbitrator Edwards. During the telephone conference, the parties came to an agreed resolution of the issues in dispute.
On 2 May 2012, the Commission issued a Certificate of Determination – Consent Orders. The consent orders recorded that the parties agreed that the matter be referred to the Registrar for referral to an Approved Medical Specialist to assess whole person impairment in respect of the psychological injury.
On 2 July 2012, Dr Patrick Morris, Approved Medical Specialist, issued a Medical Assessment Certificate. Dr Morris certified 15% whole person impairment in respect of the psychological injury.
On 16 August 2012, the Commission issued a further Certificate of Determination – Consent Orders recording:
“That the proceedings be discontinued
That the respondent [employer] pay [Mr Giangrasso’s] costs as agreed or assessed.”
It was also recorded that the parties agreed to settle Mr Giangrasso’s claim and enter a complying agreement, in accordance with the Medical Assessment Certificate issued by Dr Morris dated 2 July 2012. That is, Mr Giangrasso be paid lump sum compensation in respect of 15% whole person impairment pursuant to s 66 of the 1987 Act and 30% pain and suffering pursuant to s 67 of the 1987 Act.
On 20 November 2012, Mr Giangrasso served a pre-filing statement on Burwood Council.
On 3 January 2013, Burwood Council served a response to the pre-filing statement on Mr Giangrasso.
On 7 February 2013, Mr Giangrasso lodged an application for mediation. On 4 March 2013, the parties attended a mediation but failed to resolve the dispute. On 5 March 2013, the Commission issued a Certificate of Mediation Outcome certifying that the parties attended mediation and failed to resolve the dispute.
On 10 March 2014, a medical certificate was issued certifying Mr Giangrasso fit for full-time work as a team member.
On 9 December 2014, Mr Giangrasso was certified fit to return to his pre-injury duties as team leader.
On 11 July 2016, Burwood Council’s legal representative wrote to Mr Giangrasso’s former legal representative, Carroll & O’Dea, seeking consent to strike out the pre-filing statement.
On 24 May 2018, Burwood Council lodged an Application to Strike Out a Pre-Filing Statement (the Application).
On 28 May 2018, Carroll & O’Dea advised the Commission that it no longer represented Mr Giangrasso. Carroll & O’Dea advised that it had previously sought instructions from Mr Giangrasso a number of times over the years since the failed mediation. However, it has had “no contact and no instructions since that time”.
On 29 May 2018, the Commission wrote to Mr Giangrasso advising him of the Application and the relevant procedural steps. In that correspondence, the Commission advised Mr Giangrasso that he was required to file a Notice of Opposition (Form 11F) and supporting documentation in response to the Application by 10 July 2018. The Commission noted that it understood that Mr Giangrasso was not currently legally represented. It encouraged Mr Giangrasso to obtain legal representation and provided some general contact information to obtain legal assistance.
On 6 June 2018, Burwood Council lodged a Certificate of Service (Form 4) certifying service of the Application on Mr Giangrasso personally by hand at 4.44 pm on 1 June 2018.
Mr Giangrasso did not file a Notice of Opposition and/or supporting documentation by 10 July 2018.
On 11 July 2018, the Commission contacted Mr Giangrasso by phone to seek advice as to whether he sought to oppose the Application. Mr Giangrasso stated that he no longer wished to proceed with the matter. He stated that his former solicitor wanted to take the matter to court but he was not interested. He also stated that he was content with the outcome and had moved on.
Also on 11 July 2018, the Commission sent Mr Giangrasso an email seeking confirmation in writing as to his intentions in respect of the Application.
In response to that email, on 16 July 2018, Mr Giangrasso wrote:
“… Thank you for your email
As per our discussion I can confirm that I no longer wish to proceed with this matter and put it to rest.
I am writing to request this matter be removed from the courts
Thank you for your assistance in this.
Giuseppe Giangrasso”
On 16 July 2018, the Commission sent an email to Burwood Council’s legal representative seeking advice as to its intentions in respect of the future conduct of the matter in view of Mr Giangrasso’s email of 16 July 2018. In an email in response, on that same day, Burwood Council’s legal representative wrote:
“… My Application to Strike out a Pre-Filing Statement (the Application) seeks an order striking out the Pre-Filing Statement served on 19 November 2012. It is not surprising that the worker does not wish to participate in the proceedings. He has not been in contact with his former lawyer … for many years. I have contacted [his former lawyer] a number of times since the Mediation and the worker declined to respond to his request for instructions.
In my letter to the worker serving the Application I encouraged him to contact [his former lawyer] or to write to me indicating his consent to the Pre-Filing Statement being struck out. The worker has not written to me.
I submit that the response of the worker to the Commission consents to the orders sought by the Application. He is on notice of the Application and that if he does not instruct a lawyer or make a submission his Pre-Filing Statement will be struck out and the Work Injury Damages Claim will lapse.
I request that the President determine the Application by making the orders sought.”

ON THE PAPERS

31.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 submissions by the parties 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.”

BURWOOD COUNCIL’S SUBMISSIONS

Burwood Council submits that Mr Giangrasso moved promptly to file an Application for Mediation of a Work Injury Damages claim, following a denial of breach of duty of care by the insurer and service of the pre-filing statement.
The claim was not settled at mediation and the parties agreed to continue discussions. Burwood Council’s legal representative contacted Mr Giangrasso’s former legal representative several times in 2013 and 2016, seeking to settle the matter. Burwood Council submit that Mr Giangrasso’s former legal representative advised “informally by telephone” that Mr Giangrasso “had not responded to their requests for instructions”.
In 2011, Mr Giangrasso returned to work with Burwood Council. He had also been certified fit to perform his pre-injury role without restriction from 9 December 2014. Mr Giangrasso continues to perform his role.
Burwood Council relies on the decision in Pasminco Cockle Creek Smelter Pty Ltd v Gardner,[1] where President Sheahan (as he was then) 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.”[2]
[1] [2006] NSWWCCPD 108 (Gardner).
[2] Gardner, [15].
Burwood Council submits that it is now more than nine years since the claim was notified and more than five years since the parties were unable to reach a settlement agreement at mediation.
Mr Giangrasso has taken no action to pursue his work injury damages claim since the failed mediation. He has also failed to respond to an invitation to withdraw the pre-filing statement. The medical evidence indicates that he has recovered from his injury and is performing his full pre-injury duties.
The pre-filing statement should not be used to extend the limitation period indefinitely.
Burwood Council submits that the pre-filing statement should be struck out pursuant to s 151DA of the 1987 Act.

MR GIANGRASSO’S SUBMISSIONS

Mr Giangrasso has provided no submissions on this application. As noted above (at [29]), in an email to the Commission on 16 July 2018, Mr Giangrasso states:
“… I no longer wish to proceed with this matter and put it to rest.
I am writing to request this matter be removed from the courts …”

DISCUSSION

A claim for work injury damages must be brought within three years after the date of injury, except with leave of the court (s 151D of the 1987 Act). 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 Burwood Council or withdrawn by Mr Giangrasso.
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 after Burwood Council served the pre-filing defence and the medical evidence indicates that the degree of permanent impairment is fully ascertainable.
As submitted by Burwood Council, the decision in Gardner is relevant. 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. 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.
On 2 July 2012, Mr Giangrasso was certified with 15% whole person impairment in respect of the psychological injury. Having been in possession of evidence that the degree of permanent impairment was at least 15%, on 20 November 2012, Mr Giangrasso served a pre-filing statement on Burwood Council setting out the particulars of the work injury damages claim and evidence in support. For the purposes of s 151D of the 1987 Act, time stopped running when the pre-filing statement was served (s 151DA(1)(b) of the 1987 Act).
Before Mr Giangrasso could commence court proceedings for the recovery of work injury damages, he was required to refer the claim for mediation (s 318A of the 1998 Act). Following the receipt of Burwood Council’s defence to the pre-filing statement, Mr Giangrasso made an application for mediation of the dispute. On 4 March 2013, mediation took place but failed to achieve resolution of the claim.
Since the failed mediation, Mr Giangrasso has taken no active steps to resolve the work injury damages claim.
On 11 July 2016, Burwood Council’s legal representatives sent a letter to Carroll & O’Dea, seeking consent to strike out the pre-filing statement. It is unclear whether a response to this correspondence was received, noting that Carroll & O’Dea had apparently ceased to act for Mr Giangrasso at that point in time. There is no evidence of further attempts to resolve this matter, other than the filing of the present Application.
In accordance with the timetable of proceedings, Mr Giangrasso had until 10 July 2018 to lodge and serve a Notice of Opposition and supporting documentation in response to the Application. Mr Giangrasso did not lodge or serve a Notice of Opposition.
On 11 July 2018, the Commission contacted Mr Giangrasso seeking advice as to his position in respect of the Application. Mr Giangrasso confirmed that he is no longer legally represented and stated that he no longer wished to proceed with this matter. Following this, the Commission sent Mr Giangrasso an email seeking confirmation in writing as to his position in respect of the Application.
In response to that email, on 16 July 2018, Mr Giangrasso advised the Commission that he no longer wished the matter to proceed. He stated that he wished the matter be “put to rest” and “removed from the courts”.
As Burwood Council submit, it is now over nine years since Mr Giangrasso’s claim was notified and more than five years since the parties were unable to resolve the claim at mediation. Mr Giangrasso has reached maximum medical improvement and is performing his full pre-injury duties.
It is clear from Mr Giangrasso’s communications with the Commission that he has no intention of pursuing his work injury damages claim. In all the circumstances, I consider it appropriate to exercise my discretion to strike out the pre-filing statement.

DECISION

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

Judge Keating

President

9 August 2018