Capitol Construction Group Pty Ltd v Kazic

WORKERS COMPENSATION COMMISSION

DETERMINATION OF AN APPLICATION TO STRIKE OUT A PRE-FILING STATEMENT

CITATION:Capitol Construction Group Pty Ltd v Kazic [2007] NSWWCCPD 36

APPLICANT DEFENDANT:  Capitol Construction Group Pty Ltd

RESPONDENT CLAIMANT:  Mesud Kazic

FILE NUMBER:  WCC8250-05

DATE OF DECISION:  6 February 2007

SUBJECT MATTER OF DECISION: Application to strike out pre-filing statement; section 151DA of the Workers Compensation Act 1987.

PRESIDENTIAL MEMBER:  President Justice Terry Sheahan

HEARING:On the papers

REPRESENTATION:  Applicant Defendant: Phillips Fox

Respondent Claimant: Marin Bell & Co Solicitors

ORDERS MADE ON APPLICATION:              The Defendant’s application that the Claimant’s pre-filing statement be struck out is refused.

No order as to costs.

BACKGROUND TO THE APPLICATION

1. Mr Kazic (‘the Claimant’) alleges that on or about 23 February 2002 he suffered injury to his head, neck and back, together with psychological injury, when he was struck on the head by a falling scaffolding component whilst employed by Capitol Construction Group Pty Ltd (‘the Defendant’).

1. On 23 September 2004 in matter number WCC15087-04 the Claimant’s application to the Workers Compensation Commission (‘the Commission’) for a threshold assessment of Whole Person Impairment was finalised on 18 February 2005 by way of Registration of a Section 66A Lump Sum Agreement as to the payment of compensation in the sum of $38,000.00 in respect of 17% whole person impairment, and $15,000.00 pursuant to section 67 for pain and suffering.

1. On 21 February 2005, the Claimant served a pre-filing statement as required by section 315(1) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), and the Defendant served a pre-filing defence on 17 March 2005.

1. In matter number WCC8805-05 an application for mediation was made on 31 May 2005. A mediation conference was held on 27 July 2005, and a Certificate of Mediation Outcome (‘mediation certificate’) issued on 17 August 2005, confirming that the parties had failed to resolve their dispute.

1. On 20 July 2006 the Defendant made application seeking that the President of the Commission strike out the Claimant’s pre-filing statement pursuant to section 151DA of the Workers Compensation Act 1987 (‘the 1987 Act’).

1. Upon receipt of the strike out application the Commission issued a Direction on 16 August 2006 seeking submissions from the Claimant in response to the Defendant’s application by 31 August 2006 and giving the Defendant an opportunity to make any further submissions in reply by 14 September 2006.

1. On 14 September 2006, the solicitors for the Defendant advised that they had not been served with any submissions on behalf of the Claimant.

1. At my direction the Commission telephoned the solicitors for the Claimant on 13 November 2006 to confirm if they had filed and served submissions. On 14 November 2006 Mr Martin, solicitor for the Claimant, stated that he intended to make submissions, and would do so by 15 November 2006.

1. On 15 November 2006 the Claimant’s solicitors faxed a letter of the same date to the Commission advising that proceedings had been commenced in the District Court and enclosing a sealed copy of…