Heaps v Far West Local Health District t/as as Broken Hill Health Service

[2025] NSWSC 536

Supreme Court

New South Wales

Medium Neutral Citation:

Heaps v Far West Local Health District t/as as Broken Hill Health Service [2025] NSWSC 536

Hearing dates:

27 May 2025

Date of orders:

27 May 2025

Decision date:

27 May 2025

Jurisdiction:

Common Law

Before:

Elkaim AJ

Decision:

1. The proceedings are struck out.

2. Each party is to pay its own costs of the proceedings.

Catchwords:

CIVIL PROCEDURE — application to strike out proceedings — where plaintiff commenced court proceedings before undertaking mandatory dispute procedures as required by the Workers Compensation Act 1987 (NSW) and Workplace Injury Management and Workers Compensation Act 1998 (NSW) — breaches of the Uniform Civil Procedure Rules 2005 (NSW) — Absence of any cause of action

Legislation Cited:

Workers Compensation Act 1987 (NSW), ss 11A(1), 151H

Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 282, 313, 315(1), 318, 318A

Uniform Civil Procedure Rules 2005 (NSW), r 13.4, Pt 15

Category:

Procedural rulings

Parties:

Amy Heaps (Plaintiff)
Far West Local Health District trading as Broken Hill Health Service (Defendant)

Representation:

Counsel:
Mr P Perry (Defendant)

Solicitors:
Hicksons Lawyers (Defendant)

File Number(s):

2024/425666

Publication restriction:

No

JUDGMENT

1. The plaintiff, who is self-represented, commenced these proceedings against the defendant with the filing of a statement of claim on 15 November 2024. On 17 March 2025, the defendant filed a notice of motion requesting that the proceedings be struck out.

2. In the statement of claim the “Type of Claim” is described in this way:

“Compensation for economic loss, whole person impairment (including pain/suffering), and defamation caused by employer’s (and subsequent worker’s compensation entities) negligence.”

3. The plaintiff states the “Requested Outcome” of her litigation to be as follows:

“1. Matter investigated for corruption and criminal activity.

2. $15 000 000.

3. Prior to investigation of corruption/criminal activity - I want to be put through a highly advanced self-defence course and provided with personal protection (police grade pepper spray/guard dog etc).

4. Any associated legal costs from this point forward to be paid by the defendant.”

4. Under the heading “Pleadings”, the plaintiff gives a detailed history of complaints against the defendant (by whom she was employed), against two insurance companies (QBE Insurance and Hanover Insurance), against a number of legal firms, against the New South Wales Legal Services Commissioner and against the Police Force.

5. Under “Particulars” the plaintiff sets out a timeline of her complaints. In short, she commenced working for the defendant in December 2019. I understand she was a registered nurse. She says she was unfairly treated by senior staff which included her not being able to progress to higher positions such as a nurse unit manager. She was bullied and effectively ignored when she tried to agitate her many concerns. She was persistently mismanaged. In addition, unfair disciplinary action was taken against her. As a result of the wrongful treatment she endured, she suffered psychological injury.

6. Notwithstanding the range of persons and entities who are the subject of complaints, the defendant is the only defendant. The defendant has treated the proceedings as a workers compensation claim, in particular seeking common law damages. This is because the plaintiff did make such a claim in 2021 which was followed by a number of dispute notices pursuant to the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the WIM Act). On 18 October 2023, the plaintiff’s then solicitors, Turner Freeman Lawyers, made a claim for lump sum compensation for a work-related injury. Again, there was dispute, in particular concerning the plaintiff’s whole person impairment. In order to receive damages, she needed a whole person impairment of 15% or more (s 151H of the Workers Compensation Act 1987 (NSW) (the WC Act)).

7. The plaintiff does have an assessment from a psychiatrist (Dr Abdal Khan) of a whole person impairment of 15%. Dr Khan’s assessment is dated 15 September 2023. There is also an assessment of 15% by a Dr Nabil Malik on 5 February 2024. Dr Malik was retained by the defendant. Despite Dr Malik agreeing with Dr Khan as to the degree of whole person impairment, the defendant said it relied on s 11A(1) of the WC Act, which states:

“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”

8. The defendant’s position was that Dr Malik’s assessment related to an injury that fell within the bounds of s 11A(1).

9. The defendant’s motion relies on breaches of the above workers compensation legislation to found the striking out. In submissions the defendant also relied upon breaches of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). The notice of motion arguably only requests the strike out on the basis of workers compensation legislation breaches. However, as will be seen below, there is no doubt that there have been breaches of the UCPR. The utilisation of UCPR breaches was made plain to the plaintiff in correspondence and answered by her. I do not see any prejudice to the plaintiff in allowing the defendant to rely upon UCPR breaches.

10. The notice of motion is supported by affidavits of Mr Najeh Marhaba dated 14 March 2025 and 16 May 2025 respectively. Mr Marhaba is the defendant’s solicitor. His firm (Hicksons Lawyers) has been retained by QBE Insurance, the defendant’s workers compensation agent appointed by the New South Wales Health Corporation.

11. The plaintiff did not file any affidavit evidence or attend the hearing. She did provide some material to which I will return below.

12. The plaintiff’s claim for $15m is presumably a claim for common law damages. The problem is that in order to bring court proceedings for such damages, a number of preliminary, and obligatory, steps are required to be taken under the WC Act, and under the WIM Act.

13. The defendant told the plaintiff the reasons her proceedings were defective by letter dated 20 December 2024. The letter states:

“(a) You have not yet satisfied the 15% whole person impairment threshold pursuant to section 151H of the 1987 Act to be entitled to commence a claim for work injury damages in circumstances where our client has made no concession, they exceed that threshold pending determination of the lump sum compensation claim;

(b) A claim for work injury damages cannot be made unless a claim for lump sum compensation in respect of an injury is made before or at the same time as the claim for work injury damages in accordance with section 280A of the 1998 Act;

(c) You have not received any permanent impairment compensation prior to recovering damages under the 1998 Act, and in accordance with section 280B of the 1998 Act.

(d) You have failed to provide relevant particulars of a claim for damages pursuant to section 282(1) of the 1998 Act. In the circumstances, our client has not made, nor has been required to make, a determination of any such claim in accordance with section 281(2) of the 1998 Act;

(e) You are prevented by section 313 of the 1998 Act from service of a pre-filing statement and commencement of court proceedings where there is a dispute as to whether the degree of permanent impairment is sufficient for an award of damages;

(f) You have failed to comply with their obligations in accordance with section 315(1) of the 1998 Act by commencing court proceedings prior to serving a pre­ filing statement on our client;

(g) In failing to serve a pre-filing statement you have failed to comply with section 318 of the 1998 Act; and

(h) You have not complied with the requirement to refer the claim for mediation with the Commission before commencing court proceedings pursuant to section 318A of the 1998 Act.”

14. The plaintiff responded to the defendant’s letter on 13 January 2025. She takes issue with a number of the assertions, essentially stating that the merits of the matter are on her side, and this will be recognised by the court. She says she is “hopeful the Justices’ of the Supreme Court agree with me …” But the plaintiff also says, in relation to alleged breaches of the workers compensation legislation:

“3. You state, I ‘have failed to provide relevant particulars of a claim for damages pursuant to section 282(1) of the 1998 Act. In the circumstances, our client has not made, nor has been required to make, a determination of any such claim in accordance with section 281(2) of the 1998 Act'. I agree, I have failed to adhere to this law and provide details of specific damages. Due to my employer and their insurer's repeated unlawful and unethical behaviour in this case, I am hopeful the Justices’ of the Supreme Court agree with me, that given the circumstances, requesting me to produce same is not necessary and would simply waste resources and unnecessarily prolong the case. In my opinion, my evidence referenced in my statement of claim will provide ample evidence for the Justices to produce to a fair judgement.

…

5. You bring to my attention that I have failed to comply with my obligations of serving a pre-filing statement. This is my mistake, and I apologise. I presume the purpose of the pre-filing statement is to facilitate an expedited and efficient resolution, so not to waste resources. My employer and their insurer have been given countless time and opportunities to facilitate this, however they repeatedly fail to co-operate and adhere to their legal and ethical obligations. Due to the case now being a multi-faceted one, including much corruption and criminal activity, settlement outside of court is not something that I will consider.”

15. The plaintiff then makes this acknowledgement:

“I acknowledge that the law states that the matter should go to the Personal Injury Commission prior to commencing court proceedings. I spent much time preparing a submission for this. However, as above, due to the complexity and presence of criminal activity, I felt that involving the commission was an unnecessary step as the case would likely end up in the Court's regardless. Due to my claim being in excess of $750 000, I felt that the Supreme Court was the most appropriate place to commence proceedings.”

16. The plaintiff’s conclusion that going straight to the Supreme Court was appropriate because the case was bound to end up in the court in any event is logical but suffers from the demands of the legislation that coming straight to court is simply not possible.

17. It is inevitable that the proceedings, to the extent that it is a claim for work injury damages, must be struck out.

18. As I have mentioned above, the claim is not only for damages but requests other relief. For example, the type of claim stated by the plaintiff includes an allegation of defamation.

19. The defendant’s solicitor, in his letter of December 2024, also made reference to deficiencies under the UCPR including requirements for a defamation suit. Once again, in her response on 13 January 2025, the plaintiff accepts that she may not have fully complied with the rules. For example, she states:

“8. I dare say you are correct in saying that I have failed to comply perfectly with Division 3 of the UCPR. Again, I acknowledge my mistake. The statement of claim was accepted and filed by the Supreme Court without a request for it to be amended. Due to them having powers to make any recommendation that they see fit, I will trust that they will advise me if they have concerns which need my attention.

9. You say that my proceedings are frivolous and vexatious in accordance with part 13.4 of the UCPR. I am confused by this allegation as I cannot find any evidence to support this. Could you please provide me with same? Ironically, in my opinion and to my knowledge, this allegation of yours is frivolous and vexatious. I am astonished to receive such communication from a gentleman in your position with the legal obligations that you have.

10. I am not denying that I have not perfectly complied with the requirements of part 15 of the UCPR. As previously discussed, I tried my best and will now leave it to the Supreme Court Justices to make a judgement on same.”

20. The defendant submitted that the proceedings were vexatious within the terms of UCPR r 13.4. They were vexatious because the plaintiff, as seen above, was clearly aware of her obligations under the UCPR but chose not to agree to the termination of the proceedings after the defendant’s request that she take this action.

21. Another difficulty with the ‘non-workers compensation’ relief, is that it is not relief to be obtained from the only named defendant, nor does the otherwise extensive description in the Pleadings and Particulars identify a cause of action against the defendant. I think the proceedings as presently constructed are plainly vexatious.

22. On 22 May 2025 the plaintiff, in response to an email from my Associate concerning the court book, wrote:

“In reply to your email about the court book yesterday. Due to repeated unlawful behaviour by the defendant and failure to address this from the Supreme Court, I will not be participating further in scheduled hearing for the Defendants notice of motion.”

23. The plaintiff attached some documents (“Issues” for further information) and said she would forward other documents. These documents contain allegations of plagiarism, unprofessional conduct and, effectively, dishonest conduct. The plaintiff makes the point that her statement of claim “identifies multiple causes of action”. She is correct, as I have already noted, that the statement of claim makes many allegations but to describe them as sustainable causes of action would not be correct.

24. The allegation of plagiarism is based on the plaintiff’s correct observation that written submissions signed by counsel are seemingly identical to written submissions signed by Mr Marhaba. Both sets of submissions are included in the defendant’s court book. The submissions are in fact not identical, the small difference being to the benefit of the plaintiff. Paragraph 18 of the submissions signed by counsel requests that the plaintiff pay the defendant’s costs of the proceedings. The same numbered paragraph in the submissions signed by the solicitor, dated 20 May 2025, withdraws the claim for costs, and instead asks for the orders in the notice of motion, which in respect of costs, seeks only that each party pay its own costs. As accepted by counsel, counsel could have signed an amended statement of submissions, but the pressure of time made it more convenient for the solicitor to adopt counsel’s submissions, adding the change concerning costs.

25. I do not think there has been plagiarism. I think there has been no more than an amendment to the submissions in favour of the plaintiff.

26. True to her email, the plaintiff did not attend the hearing of the Notice of Motion, and did send further documents. The largest bundle (276pp) bears the title “QBE/BHHS/JAMESON LAW TIMELINE”. As already noted, QBE is the effective workers compensation insurer. BHHS is the defendant, and Jameson Law is a law firm that acted for the plaintiff in 2022, before she retained Turner Freeman. Jameson Law was the subject of a complaint by the plaintiff to the Legal Services Commissioner, but it is not a defendant in these proceedings.

27. All of the documents sent to the court by the plaintiff have been marked for identification.

28. The plaintiff’s decision to not participate in the hearing deprived me of an explanation of the relevance of the documents. They certainly relate to the plaintiff’s employment with the defendant but, beyond that it is difficult to discern their relevance to meeting the defendant’s motion or the establishment of alternate causes of action against the defendant.

29. Another email received from the plaintiff, about half an hour before the hearing, concerned the defendant’s counsel, Mr Perry, stating that he was “prevented from taking part in these proceedings.” This was because he had not entered an appearance in the proceedings. It is correct that a party to proceedings must enter an appearance in order to be heard. However, Mr Perry is not a party. Mr Perry is the barrister retained by the solicitors acting for the defendant. The solicitors have entered an appearance on behalf of the defendant. There is no need for Mr Perry to file an appearance.

30. In summary, I cannot exclude the possibility of the plaintiff having a genuine grievance against the defendant. I can exclude her entitlement to bring the proceedings without first having complied with the statutory requirements of the WIM Act and the WC Act. To the extent that the pleadings contain allegations against the defendant outside of the workers compensation sphere, no cause of action has been disclosed and, in any event, the pleadings in their present form also fall to be struck out for contravention of the UCPR.

Orders

1. The proceedings are struck out.

2. Each party is to pay its own costs of the proceedings.

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Decision last updated: 27 May 2025