Luke v McCarthy

[2008] NSWWCCPD 123

WORKERS COMPENSATION COMMISSION
DETERMINATION OF AN APPLICATION TO STRIKE OUT A PRE-FILING STATEMENT
CITATION:		Luke v Frank William McCarthy and Barbara Annette McCarthy t/as FW & BA McCarthy Transport [2008] NSWWCCPD 123
CLAIMANT:		Peter Charles Luke
DEFENDANT:		Frank William McCarthy and Barbara Annette McCarthy t/as FW & BA McCarthy Transport
FILE NUMBER:		WCC7092-08
DATE OF DECISION:		23 October 2008
SUBJECT MATTER OF DECISION:		Application to strike out pre-filing statement, section 151DA(3) of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Claimant:	Stacks Goudkamp
Defendant:	McLachlan Chilton
ORDERS MADE ON APPEAL:		1.       The Defendant’s application that the Claimant’s pre-filing statement be struck out, is dismissed. 2.       The Defendant is to pay the Claimant’s costs of the strike out application.

BACKGROUND TO THE APPLICATION

1. Peter Charles Luke (‘the Claimant’) was employed by Frank William McCarthy and Barbara Annette McCarthy trading as FW & BA McCarthy Transport (‘the Defendant’) as a driver.

1. On or about 15 October 2002 the Claimant, on instructions from the Defendant, drove his truck and prime mover to a rural property at Braidwood occupied by Mr Stephen Black.  Whilst at Mr Black’s premises, the trailer was loaded with a load of hay and secured.

1. Whilst driving the prime mover and trailer between the Braidwood property and Goulburn the vehicle overturned and the Claimant was severely injured.

1. In 2005 the Claimant was referred for an assessment of whole person impairment, pursuant to Part 7 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). In matter number WCC2054/05 the Claimant was found to be suffering from a whole person impairment of 44%.

1. The Claimant commenced proceedings against the Defendant, claiming damages in respect of the injuries sustained on 15 October 2002 pursuant to the provisions of the Motor Accidents Compensation Act 1999 (‘the MAC Act’). The proceedings were originally commenced in the District Court of NSW on 15 September 2004 in matter number 9332/2004. On 20 July 2006, the proceedings were transferred from the District Court to the Supreme Court being matter number 20307/2006. The proceedings were listed for hearing on 13 October 2008 with an estimate of 3-4 weeks, however, I understand the hearing dates were vacated, and the matter is now listed for hearing in the new year.

1. The Claimant served a pre-filing statement on 22 August 2008.  The particulars of negligence relied upon in the pre-filing statement mirror the particulars of negligence in the proceedings in the Supreme Court in matter number 20307/2006.

1. The pre-filing statement was served on Messrs McLachlan Chilton Solicitors for the Defendant.  There is no evidence that the pre-filing statement was served on the Defendant, although it is apparent from the Defendant’s submissions that the pre‑filing statement has come to its attention.  No issue was taken on this application regarding service of the pre-filing statement.

1. An ‘Application to Strike Out a Pre-Filing Statement’ (‘the application’) was filed in the Workers Compensation Commission (‘the Commission’) on 9 September 2008.  By agreement between the parties, the usual timetable for exchange of submissions on this application was truncated and the Commission was requested to expedite the determination of the application.

1. The Defendant served a Defence to this Pre-Filing Statement on 19 September 2008

1. A ‘Notice of Opposition to Strike Out Pre-filing Statement’ was filed in the Commission on 22 September 2008.

1. On 7 October 2008 the Commission issued a Direction in the following terms:

“Under section 151DA(4) of the Workers Compensation Act 1987 (‘the 1987 Act’) 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 Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) for assessment of the degree of permanent impairment of the injured worker.

The evidence filed on this application does not address the degree of permanent impairment of the injured worker.

Pursuant to section 151DA(3) of the 1987 Act, an application to strike out a pre-filing statement may not be made until at least six months have elapsed after the Defendant has served on the Claimant a defence to the claim in accordance with section 316 of the 1998 Act. This application appears to have been filed in breach of section 151DA(3) in that the Defendant has not filed a defence.

The following direction is made in this matter:

1.Before any final determination is made on the application, the Defendant is required to file further submissions addressing the issues identified above by 14 October 2008.

2.The Claimant is to file any submissions in reply by 21 October 2008.”

1. Further submissions in response to the direction, were received by the Commission from both parties.

ON THE PAPERS REVIEW

1. Section 354(6) of the 1998 Act provides:

“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

1. Having regard to Practice Direction Number 1, the documents that are before me, and the submissions by the parties that the matter can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances. 

DEFENDANT’S SUBMISSIONS

1. The Defendant submits that in circumstances where the Claimant already has separate court proceedings underway, which involve the same or substantially the same subject matter, as is contained in the pre-filing statement of 22 August 2008, the pre-filing statement constitutes an abuse of process. 

1. The Claimant’s pre-filing statement dated 22 August 2008 relies on the same particulars of negligence as those pleaded in his Statement of Claim in the Supreme Court proceedings.  The pleadings have been amended on various occasions, but the particulars of negligence, alleged in the current pleadings in the “Second Further Amended Statement of Claim” remain unchanged.

1. The Defendant also alleges that at the time the proceedings were commenced in the District Court various procedural requirements under the 1998 Act had not been met.  In particular, the Defendant alleges breaches of sections 280A, 313, 315 and 318A of the 1987 Act.

1. The Defendant also relies upon section 262 of the 1998 Act, which relevantly provides that court proceedings for the recovery of work injury damages cannot be commenced until a claim for the damages has been made.

CLAIMANT’S SUBMISSIONS

1. In response to the submission that the pre-filing statement is an abuse of process, the Claimant submits:

a.Such a matter (even if made good) is not a defect within section 317 of the 1998 Act.

b.The abuse of process doctrine applies to attempts to re-litigate issues determined in earlier proceedings and which issues were not strictly res judicata.

c.No issue has yet been determined in the Supreme Court proceedings.

d.The proceedings in the Supreme Court are limited to a claim for damages pursuant to the MAC Act.

e.The claimant’s court proceedings do not assert any claim for work injury damages.

f.Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 (‘Anchun’) applies to attempts to raise in subsequent proceedings, after the determination in prior proceedings, a new matter so closely connected with the issues in the first proceeding that it was unreasonable not to have raised those matters in the proceedings already determined.

g.The Claimant’s purpose in lodging the pre-filing statement is to:

i.protect his position lest his action in the Supreme Court is determined not to be an injury within the meaning of section 3 of the MAC Act, and

ii.avoid the Defendant having the opportunity to plead abuse of process or Anshun estoppel in any subsequent proceedings which may become necessary if the claim is adjudged to be not a motor accident claim that the claimant seeks now to comply with Chapter 7 of the 1998 Act, to enable him to amend his Supreme Court Statement of Claim to claim work injury damages in the alternative.

SUBMISSIONS IN RESPONSE TO THE DIRECTION DATED 7 OCTOBER 2008

1. In the Direction dated 7 October 2008, I drew attention to two matters. Firstly, the evidence failed to identify whether the Claimant had been assessed for the purposes of whole person impairment, pursuant to the provisions of Part 7 of Chapter 7 of the 1998 Act. Section 151DA(4) of the Workers Compensation Act 1987 (‘the 1987 Act’) prohibits the striking out of a pre-filing statement where the degree of whole person impairment is not yet fully ascertainable and is the subject of a referral under Part 7 Chapter 7 of the 1998 Act. In response to that matter, I am informed by the supplementary submissions, that the Claimant has been so assessed and suffers a 44% whole person impairment.

1. Secondly, I drew attention to an apparent breach of section 151DA(3) of the 1987 Act and sought further submissions on that issue.

1. Section 151DA(3) of the 1987 Act is in the following terms:

“(3)   The defendant may apply to the President to have the pre-filing statement 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” (emphasis added).

1. It is apparent from the Defendant’s submissions in response to the direction that a defence to the pre-filing statement was served on 19 September 2008. The pre-filing statement was served on 22 August 2008 Therefore, the present application was filed within six months of the service of the Pre-Filing Defence.

1. On the section 151DA(3) issue, the Defendant submitted:

“It is also noted that section 317 of the 1998 Act requires the Defendant to notify the Claimant of any alleged defects in the pre-filing statement within 7 days after the pre-filing statement is served.  Hence the current application was filed within 7 days of service of the pre-filing statement.  The defence to the pre-filing statement, however, did not need to be served until 28 days after service of the pre-filing statement.”

1. The Defendant further submitted that at the time the Claimant commenced proceedings in the District Court in September 2004 there was at that time non-compliance with Chapter 7, Part 2, Division 2 of the 1998 Act. Since that time the Claimant has complied with section 313 of the 1998 Act in that the Claimant has been found by an Approved Medical Specialist to be suffering a whole person impairment of 44%. 

1. In direct response to the section 151DA(3) issue, the Defendant says “it is submitted that in the somewhat unique circumstances of this particular case, section 151DA has no application”.

1. The Claimant’s submissions in response to the section 151DA issue are somewhat confused. It is in these terms:

“The Defendant concedes that section 151DA of the Workers Compensation Act 1987 has to [sic - no] application in those circumstances. We submit the application to strike out the pre-filing statement should be dismissed and this matter should proceed to mediation.”

DISCUSSION AND FINDINGS

1. The Defendant submits section 151DA does not apply to this application, but has not developed the submission or provided any logical reasons why it should not be applied, other than its reference to “the somewhat unique circumstances of this particular case.” I fail to see what is unique about this matter to justify a departure form the clear words of the provision.

1. There are sound policy reasons for the inclusion of section 151DA(3) in the 1987 Act. Its inclusion in the Act is to provide the parties with sufficient time to finalise the pre litigation phase of the proceedings. It brings a degree of certainty to the process and enables the parties to explore resolution and/or mediation of the claim, before embarking on litigation.

1. Section 151DA(3), provides that an application to strike out a pre-filing statement may not be made until at least six months have elapsed after the Defendant has served on the Claimant a defence to the claim in accordance with section 316 of the 1998 Act. This application was filed on 9 September 2008, ten days before the defence to the pre-filing statement was served on 19 September 2008. Clearly the six months preclusion period on the filing of an application to strike out the Claimant pre filing statement has not elapsed.

1. The Defendant purports to rely on section 317 of the 1998 Act to justify filing the strike out application when it did. I reject that submission. Section 317 concerns the steps to be taken by a Defendant to notify a Claimant of alleged defects in the pre-filing statement.  The Defendant does not assert any defect in the content of the pre-filing statement.  The Defendant asserts the Claimant is not entitled to serve a pre-filing statement at all.

1. I find that the Defendant’s application has been filed in breach of section 151DA(3) of the 19987 Act. In the circumstances the application must be dismissed.

1. Having regard to my findings above, it is unnecessary for me to make any findings on the merits of the application. However, it is difficult to see how the Defendant can successfully argue that the steps taken by the Claimant amount to an abuse of process. The steps taken to comply with Chapter 7 of the 1998 Act in order to protect the claimant in the event of an adverse finding under the MAC Act seem to me, to be not only permissible, but also prudent. The fact that those proceedings are pending, but not determined, appears to me to be powerful answer to allegations of abuse or Anshun estoppel.  I stress I have reached no concluded views on these issues I merely offer these observations, at this time, to aid the parties, as I note the proceedings have been adjourned pending the resolution of these issues.

DECISION

1. The Defendant’s application that the Claimant’s pre-filing statement be struck out, is dismissed.

COSTS

1. The Defendant is to pay the Claimant’s costs of the strike out application.

Judge Greg Keating

President23 October 2008

I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE GREG KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE