I and H Investments Pty Ltd t/as Oasis Resort v Golabovska
[2016] NSWWCCPD 9
•5 February 2016
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF AN APPLICATION TO STRIKE OUT A PRE-FILING STATEMENT | ||
| CITATION: | I and H Investments Pty Ltd t/as Oasis Resort v Golabovska [2016] NSWWCCPD 9 | |
| APPLICANT DEFENDANT: | I and H Investments Pty Ltd t/as Oasis Resort | |
| RESPONDENT CLAIMANT: | Lubica Golabovska | |
| FILE NUMBER: | 5880/15 | |
| DATE OF DECISION: | 5 February 2016 | |
| 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: | Goldberg Lawyers |
| Respondent Claimant: | Nikolovski Lawyers | |
| ORDERS MADE ON APPLICATION: | 1. 1. The Application to Strike Out a Pre-Filing Statement is dismissed. 1. 2. Each party to bear its own costs. |
INTRODUCTION
1. This matter concerns an application filed by the applicant defendant, I and H Investments Pty Ltd t/as Oasis Resort (Oasis Resort), seeking an order pursuant to s 151DA of the Workers Compensation Act 1987 (the 1987 Act) that the respondent claimant’s Pre-Filing Statement be struck out.
BACKGROUND
2. In 1998 Ms Golabovska commenced employment with Oasis Resort as a cleaner and housemaid. Her duties included servicing of rooms, making of beds, vacuuming, window cleaning and laundry.
3. On or around 23 October 2000, Ms Golabovska was cleaning a caravan and stripping the sheets from a double bunk. As she pulled the fitted sheet from the top bunk she experienced severe pain in her neck and left arm. Ms Golabovska reported the incident but was allegedly required to continue working the rest of her shift.
4. After several days on leave, on 7 November 2000 Ms Golabovska stopped work. She has not returned to work since that date and has been in receipt of weekly payments of compensation.
5. On 7 May 2013, Ms Golabovska filed an Application for Assessment by Approved Medical Specialist (AMS) in respect of a threshold dispute for work injury damages (under s 313 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act)). Accordingly, Ms Golabovska was referred to the Registrar for referral for whole person impairment assessment by an AMS in respect of her injuries arising from the incident on 23 October 2000.
6. On 12 November 2013, Dr Tommasino Mastroianni, AMS, issued a Medical Assessment Certificate in respect of Ms Golabovska’s whole person impairment. Dr Mastroianni found that Ms Golabovska suffers with “Complex Regional Pain Syndrome I”. He assessed Ms Golabovska’s combined whole person impairment to be 61 per cent, comprising of 58 per cent as a result of her left upper extremity injury, 8 per cent as result of the cervical spine and one per cent as a result of the lower digestive tract.
7. On 11 February 2014, Ms Golabovska served a Pre-Filing Statement with supporting documentation on Oasis Resort.
8. On 19 March 2014, Oasis Resort served on Ms Golabovska’s legal representatives a Pre-Filing Defence.
9. On 27 March 2014, an Application for Mediation was filed. A response to that application was filed on 17 April 2014. On 4 June 2014, the matter was the subject of a mediation which failed to resolve the matter.
10. On 27 June 2014, Oasis Resort served a factual investigation report and witness statement which raised issues regarding the mechanism of injury and the question of whether Ms Golabovska had sustained an injury at all. Oasis Resort served further late material on Ms Golabovska on 17 July 2014.
11. On 22 July 2014, a Certificate of Mediation Outcome was issued certifying that the parties failed to resolve the dispute and reach settlement at mediation.
12. On 10 November 2014, Oasis Resort wrote to Ms Golabovska noting Ms Golabovska’s intention to serve further material in regard to the work injury damages claim. Oasis Resort requested that Ms Golabovska serve any further material in the matter at the earliest possible opportunity. On 14 April 2015, Oasis Resort sent a letter to Ms Golabovska seeking a response to its letter of 10 November 2014.
13. On 24 April 2015, Ms Golabovska responded to the further issues raised by Oasis Resort’s latest material. Ms Golabovska requested that Oasis Resort reconsider its final position and respond with a view to resolving the matter “prior to the incurring of further costs”.
14. On 15 October 2015, Oasis Resort lodged in the Commission an Application to Strike Out a Pre-Filing Statement.
15. On 23 October 2015, Oasis Resort served on Ms Golabovska a further factual investigation report. On 20 November 2015, Ms Golabovska responded to the further material and invited Oasis Resort to recommence settlement negotiations.
ON THE PAPERS
16. Pursuant to s 354(6) of the 1998 Act, if the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under that Act without holding any conference or formal hearing.
17. Having regard to the terms of Practice Direction No 1 and the submissions received from the parties, 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 that this is the appropriate course in the circumstances.
LEGISLATION
18. Section 151DA of the 1987 Act provides:
“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.(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-filingstatement served in accordance with section 315 of the 1998 Act in respect of the claim concerned remains current.
(2) A pre-filingstatement 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-filingstatement 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-filingstatement 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.”
OASIS RESORT’S SUBMISSIONS
a.19. Oasis Resort submitted that in the circumstances of this case s 151DA(3) would not prevent a determination striking out the Pre-Filing Statement should the Commission be so disposed.
b.20. Even though the Certificate of Mediation was issued in excess of one year ago, Ms Golabovska has not filed any application seeking an extension of the limitation period pursuant to s 151D nor commenced proceedings in any court.
c.21. It further submitted that a Pre-Filing Statement is “not intended to extend time indefinitely” (John Lacey Earth Moving Pty Ltd v Campbell-Willis [2007] NSWWCCPD 197 (John Lacey); Luke v McCarthy [2008] NSWWCCPD 123 (Luke v McCarthy); South Western Sydney Area Health Service v Roodenrys [2014] NSWWCCPD 43 (Roodenrys)). Ms Golabovska has had ample time to commence proceedings and/or make an application for extension of time under s 151D of the 1987 Act but has failed to do so.
MS GOLABOVSKA’S SUBMISSIONS
a.22. Ms Golabovska submits that due to the issues raised by the late documents served on 17 July 2014, it was necessary to obtain further instructions, obtain further documents, meet with another relevant witness and obtain further advice from counsel regarding the information obtained.
b.23. Although final offers were entered for the purpose of concluding the formal mediation, the parties continued to discuss the possibility of informal settlement once Ms Golabovska had responded to the late material supplied.
c.24. At all times Ms Golabovska has been taking steps to further her claim on the understanding that Oasis Resort would enter into further informal settlement negotiations once all of the material necessary to re-assess the claim had been provided.
d.25. Ms Golabovska claims that she did not wish to incur the additional costs of commencing District Court proceedings if the matter could be resolved informally.
e.26. Ms Golabovska quoted the following passage from Pasminco Cockle Creek Smelter Pty Ltd v Gardner [2006] NSWWCCPD 108 (at [11]):
“The legislative intention of the introduction of these provisions in relation to work injury damages claims, following a judicial inquiry in 2001, was to facilitate the resolution of such claims, without the need to commence court proceedings, through the early exchange of information and evidence, and the participation of the parties in mediation. As stated by the Hon John Della Bosca MLC in his second reading speech on the Workers Compensation Legislation Further Amendment Bill (NSW Legislative Council Hansard 28 November 2001 at page 18961):
‘The pre-litigation process proposed by the bill requires the parties to exchange information early, respond promptly to offers of settlement and, wherever possible, settle matters without the necessity of filing proceedings in the court’.”
a.27. Ms Golabovska submitted that Oasis Resort had served late material following the mediation which raised significant issues that had to be dealt with before any meaningful settlement discussions could take place. Having responded to that material, instructions are currently being sought to put a final offer of settlement before court proceedings are commenced.
b.28. Ms Golabovska further submitted that the decision in John Lacey could be distinguished. This is because Ms Golabovska has taken steps to progress her claim and any delay in commencing proceedings has been caused by the late service of material by Oasis Resort, which substantially altered Oasis Resort’s case and necessitated further investigation on Ms Golabovska’s behalf.
c.29. Relying on Workers Compensation Nominal Insurer v England [2011] NSWWCCPD 41, Ms Golabovska finally submitted that she has explained her delay and Oasis Resort has not pointed to any prejudice caused by the delay in commencing proceedings.
DISCUSSION AND FINDINGS
a.30. I do not accept Oasis Resort’s submissions. Other than identifying the fact that a Certificate of Mediation was issued in excess of one year ago, no reasoned argument has been advanced as to why the Pre-Filing Statement should be struck out.
b.31. The submissions ignore the fact that in the period since the Certificate of Mediation was issued the parties have been actively engaged in preparing the matter for hearing.
c.32. Those further preparations for hearing were provoked by the fact that after the mediation application was filed, and shortly before the Certificate of Mediation Outcome was issued, Oasis Resort served on Ms Golabovska factual material which put liability in issue. Until that time it had been accepted that Ms Golabovska sustained an injury in the course of her employment in 2000 and had been recovering benefits under the workers compensation legislation since that time.
d.33. Since the further factual investigation material has been served, it seems to me that Ms Golabovska and her legal representatives have been doing their best to respond to the further issues raised. As late as October last year further factual material was being exchanged between the parties. In these circumstances the submission that Ms Golabovska is seeking to extend time indefinitely by not commencing proceedings is without substance. The reliance on Luke v McCarthy does not assist Oasis’s position. The application in Luke v McCarthy failed because it had been brought in breach of s 151DA(3) of the 1987 Act. In this matter there is no issue that s 151DA(3) has been satisfied.
e.34. The reference to Roodenrys also does not advance Oasis’s position. In Roodenrys, Mr Roodenrys made no attempt to explain the delay in commencing proceedings and took no active steps to resist the Application to strike out his Pre-Filing Statement. However, Ms Golabovska has satisfied me that she is actually engaged in preparing the matter for hearing and has every intention of pursuing her case once all of the fresh evidentiary material has been exchanged and the parties have had an opportunity to discuss a resolution of the matter.
f.35. For these reasons, the application for Ms Golabovska’s Pre-filing Statement to be struck out is dismissed.
COSTS
a.36. The parties have agreed that each party bear its own costs of the Application. I so order.
Judge Keating
President
5 February 2016
I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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