Infrabuild Trading Pty Ltd v Sihavong
[2025] NSWPICPD 7
•30 January 2025
| DETERMINATION OF AN APPLICATION TO STRIKE OUT A PRE‑FILING STATEMENT | |
CITATION: | Infrabuild Trading Pty Ltd v Sihavong [2025] NSWPICPD 7 |
APPLICANT DEFENDANT: | Infrabuild Trading Pty Ltd |
RESPONDENT CLAIMANT: | Caroline Sihavong |
INSURER: | GFG Alliance Australia Workers Compensation |
FILE NUMBER: | W27966/24 |
PRESIDENTIAL MEMBER: | President Judge Phillips |
DATE OF DECISION: | 30 January 2025 |
ORDERS MADE ON APPLICATION: | 1. The Application to Strike Out the PFS is adjourned sine die. 2. The applicant is granted liberty to restore this application upon the giving of seven days’ notice to the respondent and to the Commission. 3. The matter is referred to the Division Head of the Personal Injury Commission’s Workers Compensation Division for the allocation of the matter for mediation at the earliest available time. 4. No order as to costs. |
CATCHWORDS: | WORKERS COMPENSATION – Sections 151DA(3) and (4) of the Workers Compensation Act 1987 considered an applied – Luke v McCarthy [2008] NSWWCCPD 123 and NSW Police Force v Fajloun [2024] NSWPICPD 77 considered and applied |
HEARING: | On the papers |
REPRESENTATION: | Applicant Defendant: |
| Ms B Walsh, solicitor | |
| Hall & Wilcox Lawyers | |
| Respondent Claimant: | |
| Mr R Brown, counsel | |
| Slater & Gordon Lawyers | |
INTRODUCTION
The applicant/defendant, Infrabuild Trading Pty Ltd (applicant), seeks to strike out the claimant/respondent, Caroline Sihavong’s (respondent) Pre-Filing Statement (PFS). The strike out application was signed by the applicant on 22 October 2024. The respondent has filed an Opposition to the strike out application on 9 December 2024, with the applicant filing submissions in reply on 13 January 2025. The application is now ready to be decided.
PRINCIPLES APPLICABLE TO AN APPLICATION TO STRIKE OUT A PRE-FILING STATEMENT
The filing of a PFS is a necessary pre-condition before the commencement of court proceedings claiming work injury damages.[1] A PFS remains current until struck out or withdrawn by the person who filed it.[2] An application to strike out a PFS may not be made until at least six months has elapsed since the defence to the PFS was served on the claimant.[3] A PFS may not be struck out if the claimant’s degree of permanent impairment is not fully ascertainable.[4]
[1] Section 315 of the Workers Compensation Act 1987 (1987 Act).
[2] Section 151DA(2) of the 1987 Act.
[3] Section 151DA(3) of the 1987 Act.
[4] Section 151DA(4) of the 1987 Act.
Matters which are relevant to the exercise of the discretion to strike out a PFS were discussed in John Lacey Earth Moving Pty Ltd v Campbell-Willis[5] by Acting President Byron at [46]. Byron AP noted in that matter that there was no evidence that court proceedings had been commenced, nor that any active steps to resolve the matter had been taken and that the respondent/claimant had been given every opportunity to be heard in response to the application and had failed to do so. President Keating in Luke v McCarthy[6] stated that the policy underpinning s 151DA(3) was to give parties sufficient time to finalise all pre-litigation requirements. His Honour further recorded that the section provided certainty by not extending time indefinitely while the PFS was current.
[5] [2007] NSWWCCPD 197.
[6] [2008] NSWWCCPD 123 (Luke v McCarthy).
HISTORY
The PFS in this matter was served by the respondent on 11 March 2024. The respondent had been employed by the applicant in a customer relations role and worked for the applicant between 4 May 2016 and 28 September 2017. The respondent alleges that she suffered psychological injury as a result of various actions said to have occurred during her employment.[7]
[7] See Proposed Statement of Claim attached to respondent’s PFS.
The respondent made a claim for statutory workers compensation benefits including a claim under s 66 of the Workers Compensation Act 1987 (the 1987 Act) in the Personal Injury Commission (Commission), Workers Compensation Division. Member McDonald issued a Certificate of Determination on 6 August 2021 awarding the respondent weekly compensation and medical expenses. Subsequently, the parties agreed to Consent Orders on 13 September 2021 in favour of the respondent, awarding her $47,710 in respect of 19% whole person impairment (WPI) as a result of her injury, deemed to have occurred on 28 September 2017.
Thereafter the following is the chronology of this dispute:
(a) Work Injury Damages (WID) Notice of Claim served by respondent – 28 February 2023.
(b) Applicant requests further and better particulars of claim – 14 March 2023.
(c) Respondent answers the applicant’s request – 22 May 2023.
(d) Liability for WID claim declined by applicant – 24 October 2023.
(e) PFS served – 11 March 2024.
(f) Applicant files a pre-filing defence – 22 April 2024.
(g) Mediation in the Commission – 6 June 2024. Mediation failed to resolve the dispute. The respondent withdrew from the mediation and no offers were recorded by the Mediator.
THE APPLICATION TO STRIKE OUT THE PRE-FILING STATEMENT
The applicant alleges that it will suffer prejudice by reason of the failure on the respondent’s part to diligently prosecute this claim. The applicant says that the pre-conditions for the making of an order striking out the PFS have been satisfied.
The applicant submits the following:
“29. The Applicant submits the Pre-Filing Statement ought not extend time indefinitely. The Applicant’s claim in so far as any allegation of injury predates 28 February 2020, is impacted by s 151D of the 1987 Act. As the Pre-Filing Statement raised allegations of injury from 4 May 2016 to 28 September 2017, the Respondent is, at the very least 5 years and 5 months outside the limitation period prescribed by s 151D of the 1987 Act. If the Respondent relies upon events from 4 May 2016, then she is almost seven years outside the limitation period prescribed by s 151D of the 1987 Act.
30. The Applicant submits it has suffered prejudice, and will continue to suffer significant prejudice caused by the passage of time. The Applicant submits the Respondent did not properly particularise the claim noting it could not investigate any allegation of injury from 4 May 2016 until after it was raised in the Pre-Filing Statement served on 28 February 2023. That is a delay of almost seven years.
31. The Applicant submits any prohibition on an exercise of discretion as prescribed in s 151DA(4) of the 1987 Act does not apply. The Applicant conceded an entitlement to lump sum compensation in respect of 19% WPI on 13 September 2021.
32. The Applicant submits the Respondent has demonstrated a failure to prosecute her claim for work injury damages by:
(a) Failing to give notice of her claim for work injury damages for some 17 months after the resolution of her claim for impairment
(b) Failing to serve a Pre-Filing Defence for a further one year after notice of the claim for work injury damages, and
(c) Failing to proceed to a mediation, including the recording of offers as required by s 318B of the Workplace Injury Management and Workers Compensation Act 1998
(d) Failing to progress with her claim for work injury damages expeditiously after the claim could not be resolved at mediation on 6 June 2024.”
The applicant seeks the PFS be struck out and that the respondent pay the applicant’s costs of this application.
The respondent opposes the application and states that she intends to proceed with her WID claim. The respondent submits as follows:
“4. The respondent could not proceed with the prosecution of the claim previously because section 318 of the Workplace Injury Management and Workers Compensation Act 1998 … requires a party to work injury damages proceedings to disclose in their pre-filing statement any report or other evidence that they intend to rely on in the proceedings. The further material, which is annexed together with the letter of service to these submissions as Annexure A, was, ‘other evidence’ that was required to be disclosed as part of the pre-filing statement before it could be relied on in Court proceedings.
5. As a result of the above, it was appropriate to withdraw from the mediation to ensure that the evidence could be included in the pre-filing statement.
6. Now that the additional evidence has been served, the plaintiff will proceed forthwith to filing a further application for mediation.
7. From the outset, this is not an application for leave pursuant to section 151D of the [1987 Act]. Whether there is prejudice to the employer, which is denied by the respondent, is not appropriately ventilated in this jurisdiction as there is an inability to test the evidence. In any event if prejudice were to be a determining factor, consistent with the Court of Appeal’s decision of Gower v State of New South Wales, the prejudice would have to be significant prejudice. That is plainly not the case. The employer has served witness statements from the key protagonists.
8. The respondent has stated her intention to proceed with the claim, the explanation for the delay was the gathering of further evidence, that has now been completed and the proceedings can continue. The application to strike out the pre-filing statement should be dismissed.”
I would note that by letter dated 9 December 2024, the respondent has served on the applicant two statements of evidence going to the question of liability.
The respondent says that there is no power to award costs against the respondent.
In a brief reply submission, which I have read but do not repeat, the applicant says that notwithstanding the respondent’s submission, the respondent has taken no steps to relist the matter for mediation or commence proceedings in the District Court.
DISCUSSION
The history of the matter and in particular the chronology is not in dispute.
The necessary pre-requisites for the making of an order under s 151DA(3) of the 1987 Act have been established. More than six months have elapsed since the defence was served (on 22 April 2024). I am satisfied that the respondent’s degree of permanent impairment is fully ascertainable by virtue of the Consent Orders of 13 September 2021 awarding the respondent 19% WPI. The prohibition in s 151DA(4) of the 1987 Act is not enlivened. The respondent is legally represented and is opposing this application.
The applicant, in its reply submission, has referred to my decision in NSW Police Force v Fajloun[8] where I said the following at [14]:
“The filing of a PFS is not designed to ‘park’ a work injury damages claim until a worker decides it opportune to proceed. This is contrary to the legislative purpose as stated by President Keating in Luke v McCarthy, which is to enable the parties to finalise all pre-litigation steps. Those steps have self evidently been completed in this matter. If the respondent does not wish to proceed, then it is proper and appropriate to strike out the PFS.”
[8] NSW Police Force v Fajloun [2024] NSWPICPD 77 (Fajloun).
I would note that there is one difference between this matter and Fajloun, which is that the application to strike out the PFS in Fajloun was not opposed by the respondent worker. However, the principle appearing at Fajloun [14] states the position. Time is not extended indefinitely by the filing of a PFS.
Having said that, the PFS was served less than twelve months ago on 11 March 2024. The delay in this matter has not been great, although it does seem that little has been done[9] by the respondent since the unsuccessful mediation took place on 6 June 2024.
[9] Other than the statements that were served on 9 December 2024.
The power to strike out a PFS, once the various pre-requisites have been satisfied, is discretionary. The exercise of this discretion sits within the principles I have referenced from Fajloun and the general approach to the exercise of discretionary powers.[10]
[10] House v The King [1936] HCA 40; 55 CLR 499.
The applicant makes a broad allegation regarding prejudice.[11] Whilst I accept that complaint at face value, it is not compelling or persuasive in the circumstances of this application. Had the respondent more diligently prosecuted these proceedings, the applicant would not be able to make this application and would have to contend with the factual allegations made by the respondent in any event.
[11] Applicant’s submissions 22 October 2024, [30].
Since the PFS was served, less than a year has elapsed and the respondent has taken some steps to progress the matter. The respondent has also evinced a clear intention that she wishes to progress these proceedings.
At this stage, I am not prepared to accede to the applicant’s application. However, as I remarked in Fajloun, a PFS is not designed to “park” a WID claim until the worker decides, in their own good time, to pursue the WID claim. The conduct of this matter since 6 June 2024 has been leisurely to say the least. Unless this approach to this litigation changes rapidly, the respondent will find the claim enlivening the principles I set out in Fajloun. The current approach to this litigation must stop and it is the respondent’s responsibility to diligently pursue her WID claim. If the matter is not progressed with due diligence, the respondent runs the risk that this application is restored and is successfully prosecuted.
The respondent has stated that she wishes to pursue her WID claim. The respondent should be afforded this chance and must therefore take steps forthwith to progress that claim. Counsel for the respondent has stated that the gathering of further evidence is complete[12] and that the matter can now return to mediation.[13] Based upon this submission I will take it that the respondent is submitting that the matter is ready to proceed.
[12] Respondent’s submissions in opposition, [8].
[13] Respondent’s submissions in opposition, [6].
For the moment, I will hold this application in abeyance. I will refer the entire matter to the Division Head of the Commission’s Workers Compensation Division for its immediate allocation to one of the Commission’s mediators. If the matter does not resolve at mediation, and the respondent fails to promptly commence proceedings in the District Court, this application to strike out the PFS can be renewed.
DECISION
The Application to Strike Out the PFS is adjourned sine die.
The applicant is granted liberty to restore this application upon the giving of seven days’ notice to the respondent and to the Commission.
The matter is referred to the Division Head of the Personal Injury Commission’s Workers Compensation Division for the allocation of the matter for mediation at the earliest available time.
No order as to costs.
Judge Phillips
PRESIDENT
30 January 2025
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