Jacob v State of NSW (St George Hospital)

[2024] NSWPIC 48

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Jacob v State of NSW (St George Hospital) [2024] NSWPIC 48

APPLICANT:

Sincy Jacob

RESPONDENT:

State of NSW (St George Hospital)

MEMBER:

Karen Garner

DATE OF DECISION:

8 February 2024

CATCHWORDS:

WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation pursuant to section in respect of accepted psychological injury; applicant and representative failed to attend preliminary conference; previous preliminary conference had been adjourned at applicant’s request; whether proceedings should be struck out for want of prosecution; Held – matter cannot be finalised in a timely fashion due to the applicant’s unavailability to proceed; proceedings dismissed for failing to prosecute the claim with due despatch.

DETERMINATIONS MADE:

The Commission determines:

1.     The matter cannot be finalised in a timely fashion due to the applicant’s unavailability to proceed.

The Commission orders:

2.     Proceedings dismissed for failing to prosecute the claim with due dispatch.

STATEMENT OF REASONS

BACKGROUND

1. Sincy Jacob (the applicant) was employed by State of NSW (St George Hospital) (the respondent). There is no dispute that the applicant sustained Takosubo Cardiomyopathy during the course of her employment on or about 9 September 2022. The respondent’s insurer accepted liability as of 2 December 2022 and paid weekly compensation pursuant to s 33 of the Workers Compensation Act 1987 (the 1987 Act) until 14 December 2022.

2. By notice dated 2 December 2022 issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the insurer disputed liability for ongoing weekly compensation on the ground that the applicant does not suffer a partial or total incapacity for employment as a result of injury sustained in the course of employment as required by s 33 of the 1987 Act. The insurer ceased paying the applicant weekly compensation from 14 December 2022.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. The applicant initiated these proceedings by an Application to Resolve a Dispute (the Application) registered in the Personal Injury Commission (Commission) on
   27 November 2023. The applicant claimed weekly benefits from 14 December 2022 pursuant to s 33 of the 1987 Act in respect of the injury dated 9 September 2022. The respondent replied by an Application to Admit Late Documents lodged in the Commission on
   19 December 2023.

2. The matter was listed for a preliminary conference in the Commission at 9am on
   15 January 2024. On 10 January 2024, the applicant’s solicitor notified the Commission that they were not returning to the office and were available to attend a preliminary conference until 5 February 2024. On 11 January 2024, the Commission advised the parties that the preliminary conference was rescheduled to 9am on 6 February 2024.

3. At the preliminary conference held at 9am on 6 February 2024, Mr Danny Khoshaba of Bartier Perry Lawyers appeared for the respondent, together with Mr Kim of the insurer. There was no appearance by or on behalf of the applicant. Mr Khoshaba advised the Commission that shortly prior to the preliminary conference, he had received an email from the applicant’s solicitor, stated to be sent at 8.34am on 6 February 2024. Mr Khoshaba stated that the email advised that the applicant’s solicitor was delayed in transit with flight cancellations, would not be available to attend the preliminary conference scheduled for 6 February 2024 and requested that it be relisted to the following week. Mr Khoshaba stated that it appeared that the email had also been sent to the Commission.

EVIDENCE

1. The documents in evidence before the Commission and taken into account in making this determination are the Application and attachments, and the respondent’s Application to Admit Late documents and attachments.

FINDINGS AND REASONS

1. The Commission has power to dismiss proceedings pursuant to s 54 of the Personal Injury Act 2020 (the PIC Act) and Rules 9 and 77 of the Personal Injury Commission Rules 2021 (the 2021 Rules). This includes power to dismiss proceedings where the applicant has failed to prosecute the proceedings with due despatch.

2. It is the objective of the Commission to provide a timely, fair and cost-effective system for the resolution of disputes. Section 42 of the PIC Act requires the Commission to give effect to the guiding principle to facilitate the just, quick and cost effective resolution of the real issues in the proceedings. Section 43 (3) of the PIC Act provides that the Commission is to act according to “equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”.

3. The applicant was not in attendance nor represented at the preliminary conference on
   6 February 2024. The history of this claim is that an earlier preliminary conference was rescheduled to 6 February 2024 at the request of the applicant’s solicitor due to their unavailability.

4. In my opinion, there is little prospect of the matter being advanced within a reasonable time in accordance with the Commission’s statutory obligations.

5. There is nothing to prevent the applicant from lodging a further application in the Commission, provided I dismiss these proceedings for want of due despatch, which is a prerequisite for dismissing or striking out any proceedings in accordance with the principles in Morgan v Hacken Pty Limited previously known as Jennifer McGregor Enterprise Limited.[1]

   [1] [2004] NSWWCCPD 83.

6. In the circumstances, I find that the matter cannot be finalised in a timely fashion due to the unavailability of the applicant’s solicitor. Further, I find that the applicant has failed to prosecute the claim with due dispatch and a further adjournment would not be consistent with the Commission’s obligations pursuant to s 42 of the PIC Act. For these reasons, I am satisfied that these proceedings should be dismissed.

7. Accordingly, I order that the proceedings are dismissed for failing to prosecute the claim with due dispatch.