John Lacey Earth Moving Pty Ltd v Campbell-Willis
[2007] NSWWCCPD 197
•19 September 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF AN APPLICATION TO STRIKE OUT A PRE-FILING STATEMENT
CITATION:John Lacey Earth Moving Pty Limited v Campbell-Willis [2007] NSWWCCPD 197
APPLICANT DEFENDANT: John Lacey Earth Moving Pty Limited
RESPONDENT CLAIMANT: Alexander Campbell-Willis
FILE NUMBER: WCC4305-07
DATE OF DECISION: 19 September 2007
SUBJECT MATTER OF DECISION: Application to strike out pre-filing statement; section 151DA of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Acting President Gary Byron
HEARING:On the papers
REPRESENTATION: Applicant Defendant: Sparke Helmore
Respondent Claimant: Koops Martin
ORDERS MADE ON APPLICATION: Pursuant to section 151DA of the Workers Compensation Act 1987, the Claimant’s pre-filing statement is struck out.
No order as to costs of this application.
BACKGROUND TO THE APPLICATION
Mr Campbell-Willis (‘the Claimant’) alleges that on 26 August 2003, during the course of his employment with John Lacey Earth Moving Pty Limited (‘the Defendant’), he sustained a serious laceration injury to his left arm when a glass sheeting he was removing from a building site cracked and a piece lacerated his forearm to the bone. He required immediate first aid and subsequently underwent surgery.
The Defendant concedes that there is no issue that the Claimant reaches the threshold requirements for a work injury damages claim noting that the claim pursuant to section 66 settled for 25% whole person impairment (‘WPI’). The section 66A Registered Agreement issued on 20 July 2005.
By letter dated 24 August 2006 the Claimant served a pre-filing statement under section 315 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), on “Allianz Australia personal Injury Division” the Defendant’s workers compensation insurer, and also advised that a copy had been served directly on the Defendant.
The Defendant served a defence in response to the pre-filing statement by a letter dated 29 September 2006.
On 4 June 2007, the Defendant made application to the Commission to strike out the Claimant’s pre-filing statement and enclosed a Certificate of Service confirming service of the application and submissions on the Claimant’s solicitors.
Upon receipt of the application, the Commission issued a Direction on 3 July 2007 requesting that by 10 July 2007, the Defendant serve on the Claimant a copy of the ‘Application to Strike Out Pre-filing Statement’ and the Direction. The Claimant was directed to serve and file submissions in reply and submissions on whether the application could be determined ‘on the papers’, by 24 July 2007. The Defendant was directed to file and serve any further submissions in response to the Claimant’s submissions, and to make submissions on whether the application could be determined ‘on the papers’, by 31 July 2007.
The Commission received no further documents from either party and after the expiration of the time table set out in the direction, at my request, a Commission officer telephoned the parties’ solicitors on 7 August 2007. The Defendant’s solicitors confirmed that they had served their submission and the Direction on the solicitors for the Claimant, and in addition had sent a further copy, after being informed by the Claimant’s solicitors that they had not received the original application. The Defendant also indicated that they may file further submissions after receipt of the Claimant’s submissions.
The Claimant’s solicitor failed to respond to a number of telephone messages left by the Commission and on 20 August 2007 I issued a further Direction to the parties as follows:
“The following directions are made in this matter:
1.The Respondent Claimant is to file with the Commission and serve on the Applicant Defendant submissions in reply to the application to strike out the pre-filing statement by 4 pm on 27 August 2007
2.The Applicant Defendant may file submissions in response to the Respondent Claimant’s submissions in reply by 4 pm on 3 September 2007.
3.It is currently proposed that the application be determined ‘on the papers’ (see section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998) without holding any conference or formal hearing. The parties are at liberty to make submissions as to whether an oral hearing is required.”
After issuing of this Direction the Claimant’s solicitor made telephone contact with the Commission advising that he had received the Direction but he had experienced difficulties in contacting his client but had recently made contact.
To date no submissions in reply have been filed by the Claimant and in turn no further submissions have been filed by the Defendant.
APPLICATION
The Defendant seeks an order striking out the pre-filing statement on two alternative bases:
· that because the Claimant failed to give notice of the claim prior to the service of the pre-filing statement, the pre-filing statement fails to comply with the provisions of section 315 of the 1998 Act (‘defective pre-filing statement’), and
· that the matter has not progressed since the Defendant served its defence to the pre-filing statement under letter dated 29 September 2006 and the Claimant has given no explanation for the delay (‘failure to progress the matter’).
ON THE PAPERS
Having regard to section 354(6) of the 1998 Act, and having received no submissions from either party as to whether this matter can be determined ‘on the papers’, and as the application is unopposed, 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.
DISCUSSION AND FINDINGS
Defective pre-filing statement
The Defendant submits that the pre-filing statement should be struck out because:
(i)it contravened the Act because the Claimant failed to give notice of the claim pursuant to section 280 of the 1998 Act before serving the pre-filing statement;
(ii)it does not satisfy the requirements of section 315 of the 1998 Act because the Claimant has not given the Defendant “the opportunity to determine the claim in accordance with the Act”, and
(iii)the provisions of sections 280, 281 and 282 of the 1998 Act were enacted to give the Defendant time to determine the work injury damages claim prior to service of the pre-filing statement.
A number of provisions in the 1998 Act govern the service of a pre-filing statement, as referred to below.
A Claimant cannot commence court proceedings or serve a pre-filing statement if there is a dispute about the threshold requirements in respect of the degree of permanent impairment, “…unless the degree of permanent impairment has been assessed by an approved medical specialist under Part 7” (see section 313 of the 1998 Act).
Section 314(2) states:
“(2) There is considered to be no dispute as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages if:
(a)the person on whom the claim is made has accepted that the degree of permanent impairment of the injured worker is at least 15%, or
(b)or an approved medical specialist has given a medical assessment certificate certifying that the degree of permanent impairment of the injured worker is at least 15%.”
As noted in paragraph [2] above, the parties agreed that the Claimant had a 25% WPI as a result of the injury on or before 20 July 2005, when the Section 66A Registered Agreement was issued by the Commission. Therefore there existed no dispute in relation to the threshold requirements at the time of service of the pre-filing statement.
Under section 315(1) of the 1998 Act a Claimant seeking work injury damages must serve a pre-filing statement on the Defendant before he/she “can commence court proceedings for the recovery of work injury damages…”
Section 315(2) prohibits the serving of a pre-filing statement in certain circumstances as follows:
“(2) The pre-filing statement cannot be served unless:
(a) the person on whom the claim is made wholly disputes liability for the claim, or
(b) the person on whom the claim is made has made an offer of settlement to the claimant pursuant to the determination of the claim as and when required by section 281 and 1 month has elapsed since the offer was made, or
(c) the person on whom the claim is made has failed to determine the claim as and when required by section 281.”
In this particular case, the Defendant submits that prior to service of the pre-filing statement the Claimant failed to give notice of the claim under section 280 of the 1998 Act. This submission is misconceived because this section relates to the insurer’s provisional acceptance of liability, and not to any notice requirement by the Claimant.
The Claimant’s obligations in relation to making a claim for compensation or damages are set out in section 260 in Part 2 Division 2, Chapter 7 of the 1998 Act with additional requirements set out in section 282. The Defendant has made no submissions in relation to the Claimant’s compliance or otherwise with the provisions in section 260 and/or 282, and submits only that the provisions of section 280, 281 and 282 exist to provide the Defendant and/or insurer time to respond to the claim.
Other than these bare submissions, the Defendant’s submissions take this matter no further and no evidence has been provided to support its assertion that the Claimant failed to give notice of the claim as required by the Act nor that the Defendant exercised its rights to challenge the validity of the pre-filing statement under section 317.
Section 317 provides the statutory basis and the avenue available to a defendant seeking to challenge the validity of a pre-filing statement. Section 317(1) and (2) states:
“317 Defective pre-filing statement
(1) The defendant is not entitled to assert that a pre-filing statement served by the claimant is defective (by reason of incompleteness or otherwise) unless the defendant has notified the claimant, giving details of any alleged defects, within 7 days after the pre-filing statement is served by the claimant.
(2) A dispute as to whether a pre-filing statement served by the claimant is defective may be referred to the Registrar for determination.” (emphasis added)
I am satisfied that the provisions of section 317(1) which provide the basis for asserting that the pre-filing statement is defective “by reason of incompleteness or otherwise”, is sufficiently wide, such that a Claimant’s failure to make or give notice of a claim pursuant to section 260 and 282 may be sufficient to render a pre-filing statement defective, and to invalidate its service under section 315. However to assert such a position the Defendant must comply with the provisions of section 317(1) and must notify the Claimant, giving details of the alleged defects, within 7 days after the pre-filing statement is served by the Claimant.
On the material before me the Defendant did challenge the validity of service of the pre-filing statement in its defence served undercover of letter dated 29 September 2006.
Paragraph 1of that defence pleads:
“The Plaintiff has served its[sic] Pre-Filing Statement in breach of Section 280 of the WIM Act, as Notice of the Work Injury Damages claim has not been given in accordance with the Act.”
Given that the pre-filing statement was served under cover of letter dated 24 August 2006 (paragraph 4 of the Defendant’s submissions), and the defence was not served until 29 September 2006, the Defendant’s notification of the defect in the pre-filing statement, was not made within 7 days, as required by section 317, nor is there any indication that the Defendant has referred a dispute about the pre-filing statement to the Registrar for determination in accordance with section 317(2).
In the absence of pursuing a challenge to the pre-filing statement in accordance with the requirements of section 317, I am not satisfied that the Defendant can now rely on any defect in the pre-filing statement to ground the exercise of my power to strike out the pre-filing statement and it would appear pursuant to section 317, is disentitled from asserting any such defect in the pre-fling statement.
On the material before me I therefore accept that the pre-filing statement was validly served and remains current until it is struck out by the President, or withdrawn by the Claimant (section 151DA(2) of the Workers Compensation Act 1987 (‘the 1987 Act’)).
I now turn to consider the Defendant’s alternative argument to ground the exercise of my discretion to strike out the pre-filing statement.
Failure to progress the matter
The Defendant’s submissions in support of its strike out application on the basis of the Claimant’s failure to progress the matter are as follow:
(i) the Claimant suffered injury on 26 August 2003, and the parties agree that he has a 25% WPI, and therefore exceeds the threshold requirement of a work injury damages claim;
(ii) pursuant to section 151D of the 1987 Act, the limitation period for commencing court proceedings in respect of the injury should have expired on 26 August 2006, however subject to section 151DA, the time for commencing court proceedings does not run for the purposes of section 151D whilst a claimant’s pre-filing statement remains current;
(iii) four years have elapsed since the injury and eight months have elapsed since the pre-filing defence was served;
(iv) given the delay in bring the proceeding, the longer the matter is pending the less reliable will be the testimony, and the longer the matter takes to be finalised the greater risk that the Defendant’s witnesses will be unavailable and time limits exist to avoid prejudice occasioned by the delay in bringing proceedings;
(v) “it is in the interests of all parties that the matter be dealt with as expeditiously as the circumstances of the case allows” and whilst the pre-filing statement remains current the Defendant cannot finalise the matter;
(vi) there is no adequate reason for the delay and the Claimant has not “actively pursued the required steps”;
(vii) because section 151DA allows for the Defendant to make application to strike out the pre-filing statement after 6 months from service of the pre-filing defence, “the relevant provision exists so as to bring certainty to the parties and is in the interests of justice…the legislature has chosen a time limit of 6 months as being appropriate to finalise the pre-litigation phase of proceedings”, and
(viii) a claimant should be ready to proceed at the time of serving the pre-filing statement and section 315 of the 1998 Act requires that evidence upon which the Claimant intends to rely should be served with the pre-filing statement.
Section 151D(2) of the 1987 Act provides:
“ A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than three years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken.”
Section 151DA of the 1987 Act suspends time for the purposes of section 151D, in a number of specific circumstances, one of which is while a pre-filing statement served in accordance with section 315 of the 1998 Act remains current.
In the current matter, the Claimant’s injury was sustained on 26 August 2003 and he served his pre-filing statement by letter dated 24 August 2006, two days before the expiration of the three-year limitation period, thus suspending time from the date of service.
Section 151DA(2) states:
“(2) A pre-filing statement 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.”
The legislative intention of these provisions is to provide time, both to facilitate the resolution of the claim prior to commencing court proceedings, through the early exchange of information and evidence, and to enable the participation of the parties in mediation.
As noted by the President in Pasminco Cockle Creek Smelter Pty Ltd v Gardner [2006] NSWWCCPD 108 at [15] and as relied on by the Defendant in this application:
“It is clearly not the intention of the legislature that the time limit within which a claimant may bring work injury damages proceedings should be extended indefinitely by the operation of these provisions. Claimants must actively pursue the required steps throughout this pre-litigation process. The pre-filing statement should remain current for the purpose of completing those required steps.”
Whilst section 151DA (2) provides that the pre-filing statement remains current until it is struck out by the President on application of the Defendant, or is withdrawn by the Claimant, “whichever happens first”, the Act is silent as to what grounds will support a strike out application. Section 151DA (3) allows for the application to be made after 6 months have elapsed from the service of a pre-filing defence.
The Defendant made application to strike out the Claimant’s pre-filing statement by letter dated 4 June 2007, received by the Commission on 6 June 2007. This application was made approximately 8 months after the Defendant served its response to the pre-filing statement on 29 September 2006, and, therefore, complies with the requirements in section 151DA(3).
Section 151DA(4) of the 1987 Act states:
“The President may order that a pre-filing statement 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.”
As noted in paragraph [2] above this preclusion does not apply, as the parties have resolved the claims pursuant to sections 66 for 25% whole person impairment, which exceeds the 15% threshold requirement for a work injury damages claim. Therefore I am satisfied that the degree of permanent impairment has been ascertained and agreed to between the parties, and is not the subject of an application under Part 7 of Chapter 7 of the 1998 Act.
The Claimant’s solicitors have failed to respond to either of the two Directions issued by the Commission or to make submissions opposing the Defendant’s application and made no submission that the pre-filing statement should remain current
No explanation has been provided for the delay in the Claimant progressing this matter since the service of the pre-filing statement. There is nothing on the Commission file to indicate that an application for mediation has been made completing the pre-litigation steps prior to commencing court proceedings.
I am sympathetic to the Defendant’s concerns that limitation periods exist to minimise prejudice and the longer the matter is delayed the greater its risk of prejudice occasioned by the potential lose of contact with witnesses and the risk that with the passage of time witnesses’ memory and testimony may become less reliable.
If the pre-filing statement is struck out, the time in which to commence court proceedings pursuant to section 151D begins to run again and the Claimant will have a very limited window of opportunity, (possibly as little as two days) in which to refer the matter to mediation under section 318A of the 1998 Act and commence court proceeding, within the limitation period. Whilst this will create a burden on the Claimant to complete these activities within such a short time period, it is a burden of his own creation.
Given the history of this matter and, for the reasons set out below, I consider this is an appropriate case in which to exercise my power to strike out the pre-filing statement:
· a pre-filing statement is not intended to extend time indefinitely;
· limitation periods exist to protect parties from potential prejudice caused by the passage of time between the date of injury and the commencement of court proceedings;
· this application was made more than 6 months after the serving of the Defendant’s reply to the pre-filing statement, in accordance with section 151DA(3);
· the prohibition on the exercise of my discretion as stated in section 151DA(4) does not apply;
· twelve months have elapsed since the service of the pre-filing statement and no steps have been taken to progress the matter by making application for mediation;
· there is no evidence that court proceedings have been commenced nor that any other active steps have been taken to resolve the matter, since service of the pre-filing statement, and
· the Claimant has been given every opportunity to be heard on this application and has failed to make submissions opposing the Defendant’s strike out application.
DECISION
Pursuant to section 151DA of the Workers Compensation Act 1987, the Claimant’s pre-filing statement is struck out.
COSTS
No order is made as to the costs of this application.
Gary Byron
Acting President
19 September 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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