Cunningham v Silveira
[2018] NSWWCCPD 2
•31 January 2018
| DETERMINATION OF AN APPLICATION TO STRIKE OUT A PRE-FILING STATEMENT | ||
| CITATION: | Cunningham v Silveira [2018] NSWWCCPD 2 | |
| APPLICANT DEFENDANT: | Clare Cunningham | |
| RESPONDENT CLAIMANT: | Anabela Silveira | |
| FILE NUMBER: | 5572/17 | |
| DATE OF DECISION: | 31 January 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: | TurksLegal |
| Respondent Claimant: | Adams & Co Lawyers | |
| ORDERS MADE ON APPLICATION: | 1. Ms Silveira’s pre-filing statement is struck out pursuant to s 151DA of the Workers Compensation Act 1987. 2. No order as to costs. 3. The parties are granted leave to reinstate the proceedings to address the issue of costs, within 14 days of this decision. | |
INTRODUCTION
This matter concerns an application filed by the applicant defendant employer, Clare Cunningham, 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
Anabela Silveira, the respondent claimant, was employed by the employer as a domestic cleaner.
Ms Silveira injured both shoulders whilst undertaking a series of domestic duties during the course of her employment. The deemed date of injury is 20 January 2006.
It is accepted that Ms Silveira meets the threshold for work injury damages, in that her degree of permanent impairment is at least 15%.[1] Her claim for lump sum compensation pursuant to s 66 of the 1987 Act was resolved in 2014.
[1] 1987 Act, s 151H.
On 19 October 2015, Ms Silveira’s solicitors served a notice of claim for work injury damages. There is no dispute that Ms Silveira satisfies the impairment threshold pursuant to s 151H of the 1987 Act, to pursue a work injury damages claim.
On 7 June 2016, Ms Silveira served a pre-filing statement on the employer.
On 28 June 2016, the parties failed to resolve the matter following an informal settlement conference. The employer served a pre-filing defence on Ms Silveira on 5 July 2016.
On 15 July 2016, Ms Silveira served on the employer an application for mediation. A response to the application was filed and a mediator was appointed to mediate the matter.
Notwithstanding numerous attempts to contact Mr Adams, Ms Silveira’s solicitor; Mr Adams failed to communicate with either the mediator or Commission staff. On 26 October 2016, the mediation application was struck out.
On 9 February 2017, the employer filed an Application to Strike Out a Pre-Filing Statement (the first Application).
On 10 February 2017, the Commission issued a series of directions, including a direction that Ms Silveira file a Notice of Opposition to the first Application by 24 March 2017. That Direction was not complied with. Due to Mr Adams persistent failure to comply with the Commission’s directions, I caused the matter to be listed for telephone conference on 2 May 2017. A Notice of Opposition was filed and served five minutes before the commencement of the telephone conference.
No steps were taken to pursue the work injury damages claim following the filing of the mediation application on 15 July 2016. The only explanation offered for the delay in prosecuting the claim was that Ms Silveira had been overseas; although it transpired that she had only been overseas from 17 February 2017 to 17 April 2017. Notwithstanding the unsatisfactory conduct of the proceedings by Mr Adams, Ms Silveira submitted that she wished to pursue her claim for work injury damages. I accepted that Ms Silveira fully intended to proceed with her claim. Other than delay, no reason was advanced why the Pre-Filing statement should be struck out. No actual prejudiced was asserted. In the circumstances, I dismissed the first application to strike out Ms Silveira’s Pre-Filing statement on 4 May 2017.[2]
[2] Cunningham v Silveira [2017] NSWWCCPD 18 (Cunningham v Silveira No 1).
On 8 May 2017, the employer sent a letter to Ms Silveira’s solicitors giving notice of an intention to file a further Application to Strike Out a Pre-Filing Statement if an application for mediation was not received. No response was received.
Notwithstanding five further attempts to obtain a status update and progress the work injury damages claim, the employer claims that Ms Silveira failed to progress the claim. It was not until 12 July 2017 that Mr Adams personal assistant Ms McVey informed the employer’s solicitor that arrangements were to be made to brief alternative counsel with a view to filing a further Mediation application “ASAP”.
Between 3 August and 13 October 2017, the employer made five enquiries with Ms Silveira’s legal representative regarding the status of the work injury damages claim. Despite these enquiries, no further action was taken by Ms Silveira to prosecute the work injury damages claim.
On 3 November 2017, the employer filed a second Application to Strike Out a Pre-Filing Statement (the second Application).
On 18 December 2017, Ms Silveira’s legal representatives filed a Notice of Opposition to the second Application.
ON THE PAPERS REVIEW
18.Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) 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.”
EMPLOYER’S SUBMISSIONS
The employer submits that, pursuant to s 151DA of the 1987 Act, Ms Silveira’s pre-filing statement should be struck out. It submits that no action has been taken by Ms Silveira to prosecute the work injury damages claim since my decision in Cunningham v Silveira No 1 was issued on 4 May 2017.
MS SILVEIRA’S SUBMISSIONS
Mr Adams submits that the fact mediation did not proceed “should not vitiate the Claimant’s rights”.
Mr Adams also submits that he was hospitalised with a severe illness on 19 June 2017 and released on 31 August 2017. Thereafter, he has slowly returned to work but has not returned to full time practice since his release from hospital. He further submits that he is a sole practitioner.
Mr Adams further submits that he directed the “Pre-Filing Statement to be reserved in October 2017”. He did not explain this submission or develop it any further.
In addition, Mr Adams submits that he has proceeded with the prosecution of Ms Silveira’s claim as expediently as possible given his health concerns.
DISCUSSION AND FINDINGS
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 the employer served the Pre-Filing defence and the medical evidence indicates that the degree of permanent impairment is fully ascertainable.
The effect of s 151DA of the 1987 Act is that it suspends time for the purposes of s 151D while the pre-filing statement remains current, until it is struck out on the application of the employer or withdrawn by Ms Silveira.
In Pasminco Cockle Creek Smelter Pty Ltd v Gardner[3] then President Sheahan 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.”[4]
[3] [2006] NSWWCCPD 108 (Gardner).
[4] Gardner, [15].
As I said in Luke v McCarthy & McCarthy[5], and a number of other decisions, 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.
[5] [2008] NSWWCCPD 123, [29].
Ms Silveira’s solicitor, Mr Adams, has failed to progress her work injury damages claim with any diligence. It has been more than 12 years since Ms Silveira received her injury, on 20 January 2006. It is also more than a year and a half since Ms Silveira filed her pre-filing statement, on 7 June 2016. Further, it is more than eight months since I issued my decision in Cunningham v Silveira No 1 on 4 May 2017, yet there is no evidence of any steps being taken to advance the matter.
In Cunningham v Silveira No 1, I said:
“Notwithstanding the unsatisfactory conduct of the proceedings by Ms Silveira’s solicitor, Ms Silveira submitted that she wishes to pursue her claim for work injury damages. Even though I was not directed to any evidence in support of that submission, I accept that Ms Silveira fully intends to proceed with her claim. Other than delay, the defendant advanced no other reason why the pre-filing statement should be struck out. No actual prejudice has been asserted. Therefore, in the exercise of my discretion, but only by the barest of margins, I have concluded that the Application should be dismissed thereby giving Ms Silveira the opportunity to pursue her claim for damages.
I remind Ms Silveira and Mr Adams that, if the matter is not prosecuted in an appropriate and timely manner, it remains open to Ms Cunningham to file a fresh application to strike out the pre-filing statement at any time.”[6]
[6] Cunningham v Silveira No 1, [25]-[26].
I do not accept Mr Adams submission that he has proceeded with the prosecution of Ms Silveira’s claim “as expediently as possible given his health concerns”. Notwithstanding my admonishment of his conduct in Cunningham v Silvera No 1, there is no evidence before me that he has taken any steps to progress the matter since that decision was delivered.
In the present matter, Ms Silveira has provided no submissions to explain why the pre-filing statement should remain current and the delay in prosecuting her claim, other than Mr Adams’ illness (I accept that Mr Adams was incapacited due to an unknown and unexplained illness). In particular, no submissions have been made to explain why Ms Silveira did not progress her claim in the six weeks following my decision on 4 May 2017 and before Mr Adams was hospitalised on 19 June 2017. This is despite at least three enquiries or correspondence made by the employer’s solicitors to Ms Silveira’s legal representatives regarding this matter.
Notwithstanding Mr Adams’ health problems, Ms Silveira’s submissions suggest that Mr Adams returned to work after 31 August 2017, albeit not at full capacity. Apart from submitting that he had a severe illness and has not returned to full time practice, no submissions have been made to indicate why he failed to progress the work injury damages claim since he returned to duties on or about 31 August 2017. This is despite there being 11 enquiries made or correspondence issued by the employer’s solicitors to Ms Silveira’s legal representatives regarding the matter and the filing of the second Application, after 4 May 2017 (two of which occurred after 31 August 2017).
It is now over six months since Ms Silveira’s legal representatives provided advice that an application for mediation would be filed “ASAP” and five months since Mr Adams returned to work. However, I have not been directed to any evidence that suggests Ms Silveira seeks to pursue her claim or that an application for mediation will be filed (other than that recorded above) so that the parties can complete the pre-litigation steps prior to commencing court proceedings. I note that there is nothing on the Commission’s records to indicate that a further application for mediation has been filed.
Whilst I am sympathetic to Mr Adams’ health situation, I am not satisfied that the delay in prosecuting the matter is reasonable.
Ms Silveira has been put on notice of the risk in having her pre-filing statement struck out for failure to prosecute her claim. She was put on notice of that risk when I held a telephone conference in Cunningham v Silveira No 1 on 2 May 2017. That is, if the pre-filing statement is struck out, the time in which to commence court proceedings pursuant to s 151D begins to run again. However, no active steps have been taken to resolve the matter after the telephone conference or after the mediation failed to proceed.
The above factors provide strong reasons to exercise my discretion to strike out the pre-filing statement.
Mr Adams’ submission that he directed the “Pre-Filing Statement to be reserved in October 2017” is not explained nor is it supported by any evidence, without which it lacks any probative value.
Given the history of the matter, and the reasons set out above, I consider it appropriate to exercise my discretion to strike out the pre-filing statement.
COSTS
The employer submits that Ms Silveira should pay its costs of this application. While, Ms Silveira submits that the employer should pay its costs of this application. No further submissions have been made on costs.
The Commission’s power to award costs under s 341 of the 1998 Act was repealed by the Workers Compensation Legislation Amendment Act 2012. It is unclear whether the Commission has any residual power to award costs under Part 8 of the 1998 Act, in respect of proceedings in relation to an Application to Strike Out a Pre-Filing Statement. As the parties have not provided any submissions on the Commission’s jurisdiction to award costs, no order for costs will be made. However, I grant the parties leave to reinstate proceedings on the issue of costs within 14 days of this decision.
ORDERS
Ms Silveira’s pre-filing statement is struck out pursuant to s 151DA of the 1987 Act.
No order as to costs.
The parties are granted leave to reinstate the proceedings to address the issue of costs, within 14 days of this decision.
Judge Keating
President
31 January 2018
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