E a & B a Dixon Pty Ltd v Mills
[2025] NSWPICPD 43
•26 May 2025
| DETERMINATION OF AN APPLICATION TO STRIKE OUT A PRE‑FILING STATEMENT | |
CITATION: | E A & B A Dixon Pty Ltd v Mills [2025] NSWPICPD 43 |
APPLICANT DEFENDANT: | E A & B A Dixon Pty Ltd |
RESPONDENT CLAIMANT: | Scott Mills |
INSURER: | Employers Mutual NSW Limited |
FILE NUMBER: | W29296/24 |
PRESIDENTIAL MEMBER: | President Judge Phillips |
DATE OF DECISION: | 26 May 2025 |
ORDERS MADE ON APPLICATION: | 1. The respondent claimant’s Pre-Filing Statement filed 22 March 2021 is struck out pursuant to s 151DA(3) of the 1987 Act. 2. Each party is to bear its own costs of these proceedings. |
CATCHWORDS: | WORKERS COMPENSATION – Pre-Filing Statement struck out by order of the President – sections 151DA(3) and 151DA(4) of the Workers Compensation Act 1987 – State of New South Wales (NSW Police Force) v Adams [2024] NSWPICPD 82 considered and applied |
HEARING: | 20 May 2025 |
REPRESENTATION: | Applicant Defendant: |
| Mr C Michael, solicitor | |
| Moray & Agnew Lawyers | |
| Respondent Claimant: | |
| Self-represented | |
INTRODUCTION
The applicant defendant, E A & B A Dixon Pty Ltd (applicant) seeks to strike out the respondent claimant’s, Scott Mills (respondent), Pre-Filing Statement (PFS).
I set out below the history of this matter which is relevant to the current application. This is by no means the complete history, but it is unnecessary for me to traverse the entirety of matters since the injury occurred in 2000.
(a) The respondent suffered injury while working with the applicant on 16 October 2000.
(b) On 12 October 2020 the former Workers Compensation Commission (WCC) issued a Medical Assessment Certificate (MAC) certifying that the respondent suffered a 24% whole person impairment (WPI).
(c) On 13 November 2020 the respondent served a Notice of Intention to claim work injury damages.
(d) The respondent served his PFS on 22 March 2021.
(e) The applicant served its Pre-Filing Defence on 31 March 2021.
(f) A mediation took place in the Personal Injury Commission (Commission), the successor of the former WCC, in May 2021, with a Certificate of the Mediation Outcome being issued on 24 May 2021. The mediation was not successful in resolving the dispute.
(g) The applicant filed this application on 28 November 2024.
(h) The respondent, who is now unrepresented, filed a Notice of Opposition to this application on 25 February 2025. Whilst I do not repeat the terms of the Opposition, the respondent outlined his personal difficulties and his issues with his previous solicitor. The respondent also described his difficulty in obtaining alternate legal representation. The respondent opposed the PFS being struck out and opposed the order that he pay the applicant’s costs.
(i) In reply, the applicant noted that by email dated 22 October 2024, the respondent’s then legal representative indicated that the respondent did not intend to progress his work injury damages claim but did not agree to having the PFS struck out.
(j) In light of the above history, I listed the matter for Directions before me on 8 April 2025. The respondent appeared in person accompanied by his wife and the applicant was represented by Mr P Stockley of counsel. I made it clear to the respondent that this matter could not be held in the list indefinitely. I told the respondent that he needed to obtain legal advice about this application and the progress of his matter, and adjourned the hearing of the application to 20 May 2025.
(k) On 20 May 2025, the respondent once again appeared in person, accompanied by his wife. The applicant was represented by Mr C Michael, solicitor. The respondent confirmed that he remained unrepresented and would not oppose the PFS being struck out provided he continued to receive lifetime treatment expenses. I told the respondent that I could not give him legal advice.[1]
(l) There is no evidence that the respondent has filed or intends to file his work injury damages claim in the District Court of New South Wales.
[1] Needless to say, the workers compensation laws would apply to him in accordance with his date of injury and his WPI.
DISCUSSION
The relevant history of the matter is described above. None of the factual matters asserted by the applicant are disputed. The necessary pre-requisites for the making of an order under s 151DA(3) of the Workers Compensation Act 1987 (1987 Act) have been established. Namely, more than six months have elapsed since the date the defence to the PFS was served on the respondent (31 March 2021). I am satisfied that the respondent’s degree of permanent impairment is fully ascertainable by virtue of the MAC assessing 24% WPI on 12 October 2020. The prohibition contained in s 151DA(4) of the 1987 Act is thus not enlivened. Whilst the respondent is not currently represented, it is apparent to me that for a long period, he did have access to a lawyer although from the papers it appears that the relationship has ended. I am however satisfied that the respondent has an understanding of this application.
As I stated above, there is no evidence before me that court proceedings in relation to the 16 October 2000 injury have been commenced, nor that there is any intention to commence those proceedings.
The injury occurred in 2000, over 24 years ago. This is a very long delay.
The PFS was served in 2021, over 4 years ago, and all pre-filing processes were completed by May 2021. No active steps to progress the matter appear to have been taken in this time.
In State of New South Wales (NSW Police Force) v Adams[2] I said the following:
“The filing of a PFS is not designed to ‘park’ a work injury damages claim indefinitely. This is contrary to the legislative purpose as stated by President Keating in Luke v McCarthy[3] where his Honour remarked that the purpose of s 151DA(3) of the 1987 Act was to give the parties sufficient opportunity to complete all pre-litigation requirements. His Honour also said that the section did not serve to extend time indefinitely while the PFS was current.”
[2] [2024] NSWPICPD 82, [7].
[3] [2008] NSWWCCPD 123.
The cause of action in this matter is exceptionally old. It is apparent to me that the respondent, for various reasons, is not going to progress the work injury damages matter. It is appropriate that the PFS be struck out. The pre-requisites for the making of such an order are made out and there is no indication from the respondent of any intention to pursue damages proceedings. At the hearing on 20 May 2025, the respondent did not oppose the making of these orders, although I do note his expressed desire with respect to ongoing treatment. This is not a relevant consideration for me in dealing with this application. However, I accept that it is both important and relevant to the respondent.
The applicant has sought the costs of the application. I am cognisant of the problems the respondent has faced in dealing with this matter. There is nothing in his behaviour that would justify me in making a cost order adverse to his interests. I decline to make any costs order against the respondent.
DECISION
The respondent claimant’s Pre-Filing Statement filed 22 March 2021 is struck out pursuant to s 151DA(3) of the 1987 Act.
COSTS
Each party is to bear its own costs of these proceedings.
Judge Phillips
PRESIDENT
26 May 2025
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