Department of Corrective Services v Martin
[2007] NSWWCCPD 130
•4 June 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF AN APPLICATION TO STRIKE OUT A PRE-FILING STATEMENT
CITATION:Department of Corrective Services v Martin [2007] NSWWCCPD 130
APPLICANT DEFENDANT: Department of Corrective Services
RESPONDENT CLAIMANT: John Martin
FILE NUMBER: WCC13573-06
DATE OF DECISION: 4 June 2007
SUBJECT MATTER OF DECISION: Application to strike out pre-filing statement; section 151DA of Workers Compensation Act 1987
PRESIDENTIAL MEMBER: President Justice Terry Sheahan
HEARING:On the papers
REPRESENTATION: Applicant Defendant: Phillips Fox
Respondent Claimant: Keddies
ORDERS MADE ON APPLICATION: The application to strike out the Claimant’s pre-filing statement is dismissed.
The matter is referred to the Registrar for allocation to a mediator forthwith.
The Defendant to pay the Claimant’s costs of the strike out application.
BACKGROUND TO THE APPLICATION
The Claimant, Mr Martin, a prison officer employed at Silverwater Gaol by the Department of Corrective Services (‘the Defendant’), alleges that on 12 February 2002 he suffered psychological injury and post traumatic stress when he was threatened and assaulted by a prisoner whom he had escorted to hospital.
The Defendant seeks an order that the Claimant’s pre-filing statement (allegedly served on the defendant’s insurer by way of a letter dated 11 May 2005), be struck out under section 151DA of the Workers Compensation Act 1987 (‘the 1987 Act’), or, in the alternative, that an order be made that time, for the purposes of section 151D of the 1987 Act, has been running since 12 July 2005.
On 20 October 2003 Mr Martin filed in the Workers Compensation Commission (‘the Commission’), an ‘Application to Resolve a Dispute’ in respect of a threshold dispute (WCC16496-06). The Defendant filed a ‘Reply’ on 28 October 2003.
Dr Parmegiani, an Approved Medical Special (‘AMS’), examined Mr Martin on 9 February 2005. The Medical Assessment Certificate (‘MAC’), issued to the parties on 4 August 2004, confirmed that Mr Martin’s medical condition had not stabilised to enable an assessment of whole person impairment pursuant to section 66 of the 1987 Act.
At the request of Mr Martin’s solicitors, the Commission arranged a further examination with Dr Parmegiani on 9 February 2005, at which time he assessed Mr Martin as having a 15% whole person impairment as a result of psychological injuries.
At a teleconference on 10 May 2005, the parties resolved the claims under sections 66 and 67, and a ‘Certificate of Determination - Consent Orders’ was issued, dated 20 May 2005, with the following orders and notations recorded:
“1.That the threshold imposed by Section 151H of the Workers Compensation Act, 1987 has been met.
2.That the respondent pay the Applicant’s costs as agreed or assessed.
NOTATIONS:
A.It is noted that the parties have resolved their dispute concerning the Applicant’s entitlements to Sections 66 and 67 of the Workers Compensation Act 1987 and will file an agreement pursuant to Section 66A of that Act.”
I do not have before me a copy of the section 66A Agreement, but I note that correspondence was issued from the Commission to the parties on 28 June 2005, advising that the section 66A Agreement had been registered in respect of $20,000.00 for 15 % whole person impairment and $12,000.00 under section 67 and the payment of costs as agreed or assessed.
The next application to come before the Commission was this application filed on 17 August 2006 by the Defendant.
A Direction was issued by the Registrar dated 31 August 2006 directing that the Defendant serve a copy of its Application to Strike Out Pre-filing Statement and a copy of the Direction on the Claimant by 15 September 2006, and that, by 13 October 2006, the Claimant file and serve submissions in response and submissions on whether the application could proceed to be determined on the papers. The Defendant was also directed to file and serve by 20 October 2006 any submissions in reply to the Claimant’s submissions and its submissions on whether the matter could be determined on the papers.
On 13 September 2006 the Commission registered receipt of a Certificate of Service from the Defendant’s solicitors certifying service, by document exchange, of the Application to Strike Out the Pre-filing Statement, on Keddies solicitors (Mr Martin’s solicitors) on 6 September 2006. The Certificate of Service makes no reference to the Defendant’s solicitor having served a copy of the Registrar’s Direction dated 31 August 2006.
On 6 March 2007, at my request, the Commission telephoned Keddies, to enquire as to whether they had been served with a copy of the Direction dated 31 August 2006, and to ask if they had filed, or intended to file submissions in the matter. No direct answer was given, and on that day the Commission issued a letter to the solicitors for both parties, enclosing a further copy of the Direction dated 31 August 2006 and requesting that the Claimant file and serve any submissions by 13 March 2007, and that the Defendant file and serve any additional submissions by 20 March 2007.
On 13 March 2007 Keddies filed submissions on behalf of the Claimant, and confirmed that the submissions had also been served by facsimile transmission on the solicitor for the Defendant on 13 March 2007.
No further submissions on behalf of the Defendant have been filed.
ISSUES IN THIS APPLICATION
The Defendant seeks that either:
(i)I make an order that time for the purposes of section 151D has been running since 12 July 2005 (the ‘time running’ issue), or, alternatively,
(ii)if I determine the correspondence forwarded to the Defendant’s insurer by the Claimant’s solicitor dated 11 May 2005 constitutes a pre-filing statement, then I should exercise my discretion to strike it out pursuant to section 151DA (the ‘pre-filing statement’ issue).
SUBMISSIONS
Defendant’s Submission:
In support of the application the Defendant submits that:
(i)the AMS, Dr Parmegiani, issued a MAC assessing the Claimant as having a 15% whole person impairment and a certificate of determination dated 20 May 2005 confirmed that the threshold requirement of section 151H had been met;
(ii)“under cover of the” letter dated 11 May 2005, the Claimant gave notice under section 281 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) to the Defendant, and also provided a statement of particulars, as required by section 282 of the 1998 Act;
(iii)on 7 July 2005 the Defendant declined liability and served its pre-filing defence, as required by section 281 of the 1998 Act;
(iv)as at the date of drafting its submissions (8 August 2006) the Defendant had not been served with the Claimant’s pre-filing statement as required by section 315 of the 1998 Act;
(v)since 7 July 2005, when liability was declined, the Claimant has been entitled to serve a pre-filing statement (see section 315(2)(a) of the 1998 Act);
(vi)the provisions of section 151DA(1), suspending time for the purposes of section 151D, do no apply because the Claimant has provided the Defendant’s insurer with all relevant particulars of his claim;
(vii)no further action had been taken by the Claimant for 13 months after service of the section 281 notice and the section 282 particulars;
(viii)if the Claimant makes the submission that the letter giving notice under section 281 and particulars under section 282 constitutes the pre-filing statement, then its pre-filing defence was served on 7 July 2006 [sic –2005], and the required six months have elapsed since service of the pre-filing defence and the Defendant is at liberty to make application under section 151DA(3) to have the pre-filing statement struck out;
(ix)the Defendant submits that, on the authority of Pasminco Cockle Creek Pty Ltd v Gardner [2006] NSWWCCPD 108, the President has the power to strike out a pre-filing statement served, but not lodged with the Commission;
(x)the Defendant has received no response to its letter of 26 June 2006 addressed to the Claimant’s solicitors seeking confirmation as to whether their client intends to pursue his claim;
(xi)the pre-filing statement should be struck out because the Claimant has taken no active steps to progress the matter for the last 13 months since the pre-filing defence was served, and has provided no reason for such delay, and
(xii)the application can be determined on the papers or set down for a conference.
Claimant’s Submissions:
On 13 March 2007 the Claimant’s solicitors filed and served submissions in reply as follows:
(i)an application for mediation was made on 10 January 2007, but the Commission returned the application because the Claimant had not attached the pre-filing statement to the application. A pre-filing statement was subsequently attached and the application was resubmitted and served on the solicitor for the Defendant on an unspecified date;
(ii)the Defendant suffers no prejudice and the matter should proceed to mediation;
(iii)if the Commission accepts the Defendant’s application, this will result in further delay and increased legal costs;
(iv)the solicitor who previously had conduct of the file ceased to be employed by Keddies and a different solicitor at the same firm took over carriage of the matter in December 2006. The solicitor who now has conduct of the matter has acted promptly “in advancing the file by contacting the defendant and making an Application for Mediation”, but can give no explanation in relation to the conduct of solicitor who previously had conduct of the file as he is no longer employed by Keddies and “[d]ue to these logistical problems faced the claimant submits that the Pre-Filing Statement should not be struck out and the matter [should] proceed to mediation accordingly”, and
(v)“[b]oth parties have been in regular correspondence and look forward to the opportunity to attempt to resolve this matter at mediation…”
ON THE PAPERS
Having regard to section 354(6) of the 1998 Act, and the submissions from both parties, including the submission from the Defendant that the matter can be determined on the papers, 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 this is the appropriate course in the circumstances.
DISCUSSION AND FINDINGS
The ‘time running’ issue
The Defendant seeks that I make an order that time for the purposes of section 151D has been running since 12 July 2005. Nothing in the Defendant’s submissions, or in the other documents before me, explains to me from where this date comes.
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.” (emphasis added)
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.
Whilst section 151DA confers jurisdiction on the President of the Commission to strike out a pre-filing statement in circumstances prescribed by that section, neither it, nor any other section of the Act, confers power on the President to determine time for the purposes of section 151D.
Time, for the purposes of section 151D(2), is a matter for determination by the Court of competent jurisdiction in which proceedings for work injury damages are to be taken. An order granting leave to commence proceedings more than three years after the date of injury can only be made by such a court and not the Commission.
The Defendant’s application is misconceived and I therefore decline to make the order sought.
The ‘pre-filing statement’ issue
I infer from the Defendant’s submissions that, at the time of filing the strike out application, the only document(s) served by the Claimant prior to that date, which could constitute a pre-filing statement, was the correspondence from the Claimant’s solicitor to the Defendant’s insurer dated 11 May 2005. The Defendant’s submissions are unhelpful and contradictory in that the Defendant submits both, that the pre-filing statement should be struck out, and, that at the time of drafting the submissions, the Claimant had not served a pre-filing statement (see [15(iv)] and [15(xi)] above).
Under 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(1) of the 1998 Act states:
“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.” (emphasis added).
At 11 May 2005 the relevant Rules were Rules 80 and 81 the Workers Compensation Commission Rules 2003 (‘the 2003 Rules’). Those Rules were re-enacted as Rules 17.3 and 17.4 of the Workers Compensation Commission Rules 2006 (‘the 2006 Rules’).
Rule 80 of the 2003 Rules stated:
“80 Pre-filing statement
(1) For the purposes of section 315 of the 1998 Act, a pre-filing statement is to consist of a copy of the statement of claim intended to be filed in the court of relevant jurisdiction and is to include as attachments the information and other documents required by the Workers Compensation Acts and these rules.(2) If the defendant is an employer (but not a self-insurer), the claimant must serve the pre-filing statement on both the employer and the employer’s insurer.”(emphasis added)
The material to the served with the pre-filing statement was defined in Rule 81 as follows:
“81 Material to be served with pre-filing statement
(1) For the purposes of sections 315 and 318 of the 1998 Act, a claimant for work injury damages must serve with the pre-filing statement all information and documents upon which the claimant proposes to rely including:
(a) any notification provided to the claimant as required by section 281 (2B) of the 1998 Act that the degree of permanent impairment of the injured worker resulting from the injury is accepted as being sufficient for an award of work injury damages, or
(b) if the dispute has been referred to an approved medical specialist for assessment of permanent impairment, the medical assessment certificate issued by the approved medical specialist in accordance with section 325 of the 1998 Act.” (emphasis added)
In accordance with the Act and the Rules, and as stated in the “Registrar’s Guideline for Work Injury Damages in the Workers Compensation Commission”, the pre-filing statement must:
·set out such particulars of the claim and the evidence relied on to support or establish the claim as required by the Rules (see 315 (1) of the 1998 Act);
·consist of a copy of the Statement of Claim to be filed in the court of relevant jurisdiction (Rule 80), and
·attach all information and documents upon which the Claimant proposes to rely (Rule 81).
The correspondence from the Claimant’s solicitor addressed to the Defendant’s insurer dated 11 May 2005, comprises, with enclosures, a letter advising that they act for the Claimant in respect of his work injury damages claim (date of incident, 12 February 2002). In addition to this identifying information, the first paragraph states:
“We now provide you with our s.281 Notice (pursuant to the Workplace Injury Management and Workers Compensation Act, 1998) incorporating the s.281 particulars...”
Whilst copies of the enclosures are not before me, I note that the letter itemised, as being enclosed, various medical and WorkCover certificates, two reports from Dr Clark dated 2 April 2003, an incident report form, and an employee’s compensation claim form.
The letter itself is divided into seven subheadings as follows:
1. The Injury received by the Claimant;
2. All impairments arising from the injury;
3. Any previous injury/pre-existing condition;
4. Details of the economic loss;
5. Allegations of negligence;
6. Whether or not the degree of permanent impairment resulting from the injury will change, and
7. Previous employment to the nature of which the injury is or may be due.
In response to this letter, the solicitors for the Defendant forwarded a letter dated 7 July 2005 which stated:
“We refer to your recent correspondence, dated 11 May 2005, outlining your Section 281 of the Workplace Injury Management and Workers Compensation Act, 1998 (the WIM Act) Notice.
In response and pursuant to Section 281 of the WIM Act, we confirm that liability is declined.
We enclose by way of service a Pre-filing Defence pursuant to Section 316 of the WIM Act in anticipation of the Plaintiff serving a Pre-filing Statement in accordance with Section 315 of the WIM Act.” (emphasis added)
Given the content of that letter it is clear that, as at 7 July 2005, the Defendant’s solicitors did not consider that the notice given pursuant to section 281 constituted, of itself, a ‘pre-filing statement’ as required by section 315.
The Claimant’s solicitor’s submissions do not assert that their letter dated 11 May 2005, or any other document served prior to the filing of the strike out application, constituted a pre-filing statement.
According to the Claimant’s submissions dated 13 March 2007, an application for mediation was made on 10 January 2007 but rejected by the Registrar for its failure to annex a copy of the pre-filing statement. The application, with a pre-filing statement attached, was subsequently filed in the Commission, and a copy served on the Defendant.
A copy of the file in the application for mediation, matter number 1067-07 is also before me. Annexed to that application is a ‘pre-filing statement index’, referring to an attached “Proposed Ordinary Statement of Claim”, a “Proposed Certificate Under Section 198L of the Legal Profession Act”, a “Proposed Statement of Particulars Pursuant to Part 9, Rule 27” and a list of attached medical reports. This document clearly differs in form and substance from the letter of 11 May 2005 and appears to comply with the form and content of a pre-filing statement as required by the legislation and the 2006 Rules.
The pre-filing statement referred to above is undated, but a notation on the front of the mediation application states that the pre-filing statement was served on the Defendant on 6 February 2006. The service of this pre-filing statement clearly post-dates the Defendant’s strike-out application, and this pre-filing statement is not the document to which the application relates.
I am not satisfied that the Claimant’s solicitor’s letter dated 11 May 2005 constitutes a pre-filing statement as required by the legislation and the rules, and there is no evidence before me that a pre-filing statement in any form had been served on the Defendant prior to this strike-out application being filed.
The Defendant’s application to strike out a pre-filing statement therefore appears premature and misconceived.
DECISION
The application to strike out the Claimant’s pre-filing statement is dismissed.
The matter is referred to the Registrar for allocation to a mediator forthwith.
COSTS
The Defendant is to pay the Claimant’s cost of the strike out application.
Justice Terry Sheahan
President
4 June 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
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