Cunningham v Silveira
[2017] NSWWCCPD 18
•4 May 2017
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF AN APPLICATION TO STRIKE OUT A PRE-FILING STATEMENT | ||
| CITATION: | Cunningham v Silveira [2017] NSWWCCPD 18 | |
| APPLICANT DEFENDANT: | Clare Cunningham | |
| RESPONDENT CLAIMANT: | Anabela Silveira | |
| FILE NUMBER: | 612/17 | |
| DATE OF DECISION: | 4 May 2017 | |
| 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. The applicant defendant’s Application to Strike Out a Pre-Filing Statement is dismissed. 2. No order as to costs. | |
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 unsuccessful.
BACKGROUND TO THE APPLICATION
Anabela Silveira, the respondent claimant, was employed by the applicant defendant as a domestic cleaner.
Ms Silveira injured both shoulders whilst undertaking a series of domestic duties during the course of her employment. 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 defendant.
On 28 June 2016, the parties failed to resolve the matter following an informal settlement conference. A pre-filing defence was served on 5 July 2016.
On 25 July 2016, Ms Silveira served on the defendant 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. Ultimately mediation did not proceed.
On 9 February 2017, the defendant filed an Application to Strike Out a Pre-Filing Statement (the Application).
On 10 February 2017, the Commission issued a series of directions, including a direction that Ms Silveira file a Notice of Opposition by 24 March 2017. That Direction was not complied with.
On 30 March 2017, Commission staff attempted to contact Mr Adams by telephone. A receptionist confirmed that Mr Adams’ firm, Adams & Co, continue to act for Ms Silveira. However, Mr Adams failed to return the call. Also on 30 March 2017 Commission staff forwarded an email to the address provided by Adams & Co requesting advice in relation to a Notice of Opposition. No response was received.
On 10 April 2017, the Commission issued a further Direction directing Ms Silveira file and serve a Notice of Opposition by 18 April 2017. That Direction was not complied with.
On 18 April 2017, Ms Silveira phoned to advise the Commission that she had recently returned from overseas and had left a message for her legal representative to contact her.
On 19 April 2017, Commission staff again emailed Adams & Co in relation to Ms Silveira’s communication. Adams & Co were advised that they should request in writing an extension of time required to file the Notice of Opposition if Ms Silveira sought to oppose the Application. No response was received to that email.
At 2.00 pm on 2 May 2017, I caused a telephone conference to take place between Ms Silveira, Mr Adams, the defendant’s solicitor Ms Hannon, and myself.
Mr Adams informed me that he had filed a Notice of Opposition to the Application shortly before the telephone conference commenced. Ms Hannon confirmed that she received a Notice of Opposition five minutes before the telephone conference commenced.
Mr Adams’ explanation for the delay in failing to comply with the Commission’s Directions and in failing to respond to the Commission’s communications was because Ms Silveira had been overseas and unavailable to him to provide instructions. I do not accept that explanation. If Mr Adams was having difficulty obtaining instructions, he should have been responsive to the Commission’s communications and he should have taken steps to obtain an extension of time to comply with the Commission’s Directions. Simply ignoring the Directions was unacceptable. It placed Ms Silveira at risk that the Application would be determined in the absence of any opposition.
On the basis of the history outlined above, the defendant submits “no action has been taken by the claimant to prosecute the work injury damages claim since the Application for Mediation was filed on 15 July 2016”. Therefore, the defendant seeks to have the pre-filing statement struck out with costs.
Ms Silveira’s submissions, eventually filed by Mr Adams, are extraordinarily brief. Mr Adams submits:
“2. The mediation did not proceed. This should not vitiate the Claimant’s rights.
3. The Claimant should be entitled to prosecute her claim.
4. There are matters which are yet to be determined for [sic] the matter can be properly prosecuted by the Claimant.
5. Simply because the mediation has been struck out does not mean there has been no want by the Claimant for prosecution of her claim.
6. The Claimant has been overseas since February 2017 and only returned recently, as at April 2017.
7. The Claimant seeks to proceed with her application.”
ON THE PAPERS REVIEW
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.”
CONSIDERATION
There are no impediments presented by s 151DA(3) or (4) of the 1987 Act to the Application being determined.
As I said in Luke v McCarthy & McCarthy [2008] NSWWCCPD 123 at [29], 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.
The chronology in the present matter reveals that no steps have been taken to pursue the work injury damages claim since the mediation application was filed on 15 July 2016. The only explanation offered for that delay was the fact that Ms Silveira had been overseas. As it turns out she was only overseas during the period from 17 February 2017 to 17 April 2017. No reasons were given as to why the matter did not advance in the seven months after the mediation application was filed and before Ms Silveira left for overseas. Nor was any satisfactory explanation given for the failure to comply with the Direction issued on 10 April 2017.
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.
ORDERS MADE ON APPLICATION
The applicant defendant’s Application to Strike Out a Pre-Filing Statement is dismissed.
COSTS
Both parties have sought an order for costs. In the circumstances of this case, although the application has been unsuccessful, in the exercise of my discretion, I make no order as to costs.
Judge Keating
President
4 May 2017