Capitol Construction Group Pty Ltd v Kazic

[2007] NSWWCCPD 36

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 a Statement of Claim dated 15 November 2006, matter number 5499-06. The Statement of Claim enclosed named GIO Workers Compensation (NSW) Limited as the Defendant because Capitol Construction Group Pty Limited was dissolved pursuant to section 509 of the Corporations Act 2001.

1. On 15 November 2006, the Commission again telephoned the Claimant’s solicitors and requested that the correspondence dated 15 November 2006 be served on the solicitors for the Defendant and that they send confirmation of service to the Commission by facsimile transmission.

1. By letter dated 16 November 2006 addressed to the Commission, the Claimant’s solicitor confirmed that the District Court Statement of Claim, Statement of Particulars and General List Timetable had been served on the Defendant.

SUBMISSIONS

1. The Defendant seeks an order striking out the pre-filing statement because the matter has not progressed since the mediation certificate was issued on 17 August 2005.

1. The Claimant submits that the Defendant’s application is inappropriate because proceedings have now been commenced in the District Court.

ON THE PAPERS

1. Having regard to section 354(6) of the 1998 Act, and the submissions from both parties, I am satisfied that I have sufficient information to proceed ‘on the papers’ to determine this application, without holding a conference or formal hearing, and that this is the appropriate course in the circumstances.

DISCUSSION AND FINDINGS

1. Section 151D (2) of the 1987 Act provides:

“ A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than three years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken.”

1. Section 151DA of the 1987 Act suspends time for the purposes of section 151D in a number of specific circumstances, one of which is while a pre-filing statement served in accordance with section 315 of the 1998 Act remains current.

1. Section 151DA(2) states:
   
   

   “(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.”

1. The legislative intention of these provisions in relation to a claim for work injury damages is to facilitate the resolution of the claim prior to commencing court proceedings, through the early exchange of information and evidence, and to ensure the participation of the parties in mediation.

1. Pursuant to section 315(1) of the 1998 Act a Claimant seeking work injury damages must serve a pre-filing statement on the Defendant before he/she “can commence court proceedings for the recovery of work injury damages…” Section 315 of the 1998 Act provides:

“315 Requirement for pre-filing statement before commencing court proceedings

(1) Before a claimant can commence court proceedings for the recovery of work injury damages, the claimant must serve on the defendant a pre-filing statement setting out such particulars of the claim and the evidence that the claimant will rely on to establish or in support of the claim as the Rules may require.

Note. Section 314 prevents a pre-filing statement being served if there is a dispute as to whether the degree of permanent impairment is sufficient for an award of damages.

(2) The pre-filing statement cannot be served unless:

(a)  the person on whom the claim is made wholly disputes liability for the claim, or
(b)  the person on whom the claim is made has made an offer of settlement to the claimant pursuant to the determination of the claim as and when required by section 281 and 1 month has elapsed since the offer was made, or

(c)the person on whom the claim is made has failed to determine the claim as and when required by section 281.

Note. The determination of a claim in accordance with section 281 requires the making of a reasonable offer of settlement (if liability is wholly or partly accepted). Failure to make a reasonable offer of settlement constitutes a failure to determine the claim. Section 74 requires notice of a dispute as to liability to be given.”

1. In this particular case, the Claimant’s pre-filing statement was served two days before the three-year limitation period in section 151D expired, and it, therefore, stopped time from running on and from 21 February 2005.

1. The Defendant promptly served a pre-filing defence on 17 March 2005, and there is nothing before me to suggest that the Defendant has at any time alleged that service of the Claimant’s pre-filing statement failed to comply with section 315.

1. I, therefore, accept that the pre-filing statement was validly served and remains current until it is struck out by the President, or withdrawn by the Claimant (section151DA(2)).

1. In the present matter the pre-litigation phase concluded on 17 August 2005 with the issue of the mediation certificate confirming that the parties were unable to resolve their dispute.

1. After the issue of the mediation certificate the Claimant was free to commence court proceedings for the recovery of work injury damages. The Claimant, however, did not file a Statement of Claim until 15 November 2006.

1. Whilst section 151DA (2) provides that the pre-filing statement remains current until it is struck out by the President on application of the Defendant, or is withdrawn by the Claimant, “whichever happens first”, the Act is silent as to what grounds will support a strike out application. Section 151DA (3) allows for the application to be made after 6 months have elapsed from the service of a pre-filing defence.

1. The Claimant’s solicitors have provided no explanation for their delay in commencing court proceedings. It would appear, however, that the Defendant’s application seeking to have the pre-filing statement struck out has prompted the Claimant to commence proceedings in the District Court and a general list timetable has now been issued by that court.

1. Given that proceedings have now been commenced in the District Court, no purpose is served by striking out the Claimant’s pre-filing statement and I decline to do so.

DECISION

1. The Defendant’s application that the Claimant’s pre-filing statement be struck out is refused.

COSTS

1. No order is made as to the costs of this application.

Justice Terry Sheahan

President

6 February 2007

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUSTICE TERRY SHEAHAN, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE