NSW Police Force v Fajloun
[2024] NSWPICPD 77
•2 December 2024
| DETERMINATION OF AN APPLICATION TO STRIKE OUT A PRE‑FILING STATEMENT | |
CITATION: | NSW Police Force v Fajloun [2024] NSWPICPD 77 |
APPLICANT DEFENDANT: | State of New South Wales (New South Wales Police Force) |
RESPONDENT CLAIMANT: | Elias Fajloun |
INSURER: | Employers Mutual Limited - TMF |
FILE NUMBER: | W25475/24 |
PRESIDENTIAL MEMBER: | President Judge Phillips |
DATE OF DECISION: | 2 December 2024 |
ORDERS MADE ON APPLICATION: | 1. The respondent claimant’s Pre-Filing Statement filed 7 December 2023 is struck out pursuant to s 151DA(3) of the Workers Compensation Act 1987. 2. Each party is to bear their own costs of these proceedings. |
CATCHWORDS: | WORKERS COMPENSATION – Pre-Filing Statement struck out by order of the President – sections 151DA(3) and 151DA(4) of the Workers Compensation Act 1987 considered and applied – Luke v McCarthy [2008] NSWWCCPD 123 applied |
HEARING: | On the papers |
REPRESENTATION: | Applicant Defendant: |
| Ms V Porter, solicitor | |
| Hall & Wilcox Lawyers | |
| Respondent Claimant: | |
| Ms N Butcher, solicitor | |
| Don Cameron & Associates | |
INTRODUCTION
The applicant/defendant, the NSW Police Force, seeks to strike out the respondent/claimant Elias Fajloun’s Pre-Filing Statement (PFS). The strike out application was signed by the applicant on 27 August 2024. Annexed to this decision is a copy of Annexure A to the application, which is the applicant’s submissions on the application.
Directions were issued by my delegate on 28 August 2024 specifying the timetable for the exchange of material associated with this application. The respondent was directed to file and serve submissions in reply by 9 October 2024.
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before the commencement of court proceedings claiming work injury damages.[1] A PFS remains current until struck out or withdrawn by the person who filed it.[2] An application to strike out a PFS may not be made until at least six months has elapsed since the defence to the PFS was served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).
The PFS in this matter was served on 7 December 2023. The respondent was employed by the applicant as a Police Officer. The respondent has alleged that he suffered psychological injury in the course of his employment with the applicant. The applicant had accepted workers compensation liability for the respondent’s psychological injury on 29 June 2021.
The applicant has provided an history of the matter at paragraphs [2]–[27] in Annexure A to the Application to Strike out the PFS. The requirements of ss 151DA(3) and (4) have been met. The defence to the PFS was served on 22 December 2023 and the parties had previously entered a Complying Agreement on 12 October 2022 for 22% whole person impairment (WPI). A mediation of the matter took place in the Personal Injury Commission (Commission) on 15 March 2024 which was unsuccessful in attempting to resolve the dispute. The applicant sets out its various contacts with the respondent’s solicitors at paragraphs [19]–[27] of its submission. At [19], the applicant recounts that on 31 July 2024 the respondent contacted the applicant’s workers compensation insurer and indicated that he no longer wished to pursue his work injury damages claim. However, no action in accordance with this statement has been taken.
Since this application has been filed, Commission staff have contacted the respondent’s solicitors on 28 August 2024, 15 October 2024, and 21 October 2024. The purpose of these communications was to ascertain the respondent’s response to this application. No responses were forthcoming. On 1 November 2024, Ms Taylor of the Presidential Unit spoke to the respondent’s solicitor, Ms Butcher, who confirmed that she acted for the respondent and that the application was not opposed. Subsequently the respondent was advised that the application had been referred to me and that if the respondent wished to be heard on the application, submissions would need to be filed by Friday 29 November 2024. The respondent was advised that the application would then be determined.
No submissions from the respondent have been received. Consequently, no issue has been taken with the history of the matter as submitted by the applicant.
DISCUSSION
The history of the matter described above and as set out in the applicant’s submission has not been disputed.
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 from the date the defence was served (on 22 December 2023). I am satisfied that the respondent’s degree of permanent impairment is fully ascertainable, with the parties agreeing to 22% WPI in a Complying Agreement entered on 12 October 2022, so the prohibition in s 151DA(4) of the 1987 Act is not enlivened. I am also satisfied that the respondent, who is legally represented, has had every opportunity to defend this application had that been his wish.
The basis of the application is that since 11 April 2024, the respondent has not taken any steps to progress the matter and that the legislative requirements to make the application are satisfied.
I also note that there are two occasions where the respondent himself and through his solicitor have evinced an intention not to pursue these proceedings. The first being when the respondent informed the applicant’s insurer on 31 July 2024 that he did not intend to pursue his work injury damages claim. The second when the respondent’s solicitor on 1 November 2024 informed one of my staff that this application was not opposed. The respondent’s failure to defend the application can thus be seen to be conduct consistent with the stated intention not to pursue the work injury damages proceedings any further.
In light of this history, the fact that the respondent is legally represented and has not defended this application and the respondent’s intention expressed on two occasions that he did not intend to pursue these proceedings, I will accede to the applicant’s application to strike out the PFS. Whilst the time from serving the PFS is not lengthy, and from serving in December 2023 until April 2024, there was quite a deal of activity on the respondent’s part to pursue his claim diligently, no action to advance the matter has taken place in the seven months since April 2024. I note that the Commission has conducted a mediation which was unsuccessful. The next step in these proceedings, were the respondent so minded, is the commencement of court proceedings. There is no evidence before me that court proceedings have been commenced.
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.
On the question of costs, the applicant has sought an order that its costs be paid or in the alternative, that there be no order as to costs. However, this is unsupported by any submission. I am not minded to make a costs order adverse to the respondent, who evidently has suffered a severe psychological injury which has resulted in the applicant agreeing to pay 22% WPI. The order I will make is that each party is to bear their own costs of the proceedings.
DECISION
The respondent claimant’s Pre-Filing Statement dated 7 December 2023 is struck out pursuant to s 151DA (3) of the 1987 Act.
Each party is to bear their own costs of their proceedings.
Judge Phillips
PRESIDENT
2 December 2024
Annexure A - Submissions to Application to Strike Out a Pre-Filing Statement
Applicant/Defendant: New South Wales Police Force
Applicant’s legal representative: Hall & Wilcox
Respondent/Plaintiff: Elias Fajloun
Respondent’s legal representative: Don Cameron & Associates Lawyers
Orders sought
1. The Applicant seeks an order from the President that the pre-filing statement be struck out pursuant to s 151DA of the Workers Compensation Act 1987 (1987 Act).
Background
2. The Respondent was born on [redacted] and is currently [redacted] years of age.
3. The Respondent was employed by the Applicant as a Police Officer.
4. The Respondent alleges that he suffered a psychological injury in the course of his employment with the Applicant. He lodged a claim for workers compensation on 19 April 2021.
5. The Applicant accepted liability for the statutory workers compensation claim lodged in respect of the Respondent’s psychological injury on 29 June 2021.
6. On 20 May 2022, the Respondent submitted a claim for permanent impairment compensation under s 66 of the 1987 Act.
7. By Complying Agreement dated 12 October 2022, the Respondent’s claim for permanent impairment compensation resolved. The Respondent received compensation for 22% WPI. (Annexure D)
8. Under cover of letter dated 24 April 2023, the Respondent’s legal representatives, Don Cameron & Associates submitted a claim for work injury damages pursuant to ss 281 and 282 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). (Annexure C)
9. In correspondence dated 4 May 2023, the Applicant’s legal representative, Hall & Wilcox, requested further relevant particulars of the Respondent’s claim for work injury damages under ss 281 and 282 of the 1998 Act. (Annexure C)
10. By letter dated 21 June 2023 the Respondent’s legal representatives responded to the request and provided further relevant particulars in respect of the claim for work injury damages. (Annexure C)
11. The Applicant’s legal representatives issued a section 78 notice on 21 August 2023, declining liability in respect of the Respondent’s claim for work injury damages. (Annexure C)
12. Under cover of letter dated 7 December 2023, the Respondent served his pre-filing statement upon the Applicant. (Annexure B)
13. On 22 December 2023, the Applicant served its pre-filing defence. (Annexure C)
14. On 2 February 2024, the Respondent’s legal representatives filed and served an Application for Mediation to Resolve Work Injury Damages Claim. (Annexure E)
15. On 13 February 2024, the Applicant’s legal representatives filed and served, a Response to an Application for Mediation of a Work Injury Damages Claim. (Annexure F)
16. On 15 March 2024 the parties attended a Mediation in the Personal Injury Commission.
17. The Mediation was adjourned to 29 March 2024. Due to an administrative error this date fell on a public holiday and the Mediation was kept open until 3 April 2024.
18. A Certificate of Mediation Outcome was issued by the Personal Injury Commission on 11 April 2024. (Annexure G)
19. On 31 July 2024 the Respondent contacted the workers compensation insurer by email indicating that he was no longer pursuing his claim for work injury damages. (Annexure H)
20. On 6 August 2024 the Applicant’s legal representative contacted the Respondent’s legal representatives via email to confirm that the PFS had been withdrawn. (Annexure I)
21. On that same day the Respondent’s legal representatives contacted the Applicant’s legal representatives via email and indicated that the PFS had not been withdrawn. (Annexure
J)
22. On 7 August 2024 the Applicant’s legal representatives contacted the Respondent’s legal representatives via email and indicated that steps would be taken to issue an application to strike out the pre-filing statement if Court proceedings were not commenced by the Respondent within 14 days. (Annexure K)
23. As at 22 August 2024 the Applicant’s legal representatives had received no contact from the Respondent’s legal representatives. On 22 August 2024 the Applicant’s legal representative telephoned the Respondent’s legal representatives to determine their intentions. The Respondent’s legal representative indicated that she would obtain further instructions regarding the ongoing conduct of the matter and revert that same day.
24. A further email was sent to the Respondent’s legal representative by the Applicant’s legal representative indicating that should no response be received by 4pm on 22 August 2024 an application would be made to strike out the pre-filing statement. (Annexure L)
25. At 4.02 pm on 22 August 2024 the Applicant’s legal representative placed a call to the Respondent’s legal representative. The call diverted to the voicemail of someone other than the Respondent’s legal representative.
26. At 4.03pm on 22 August 2024 the Applicant’s legal representative sent an email to the Respondent’s legal representative following up whether the Respondent’s legal representative had instructions to issue Court proceedings. (Annexure M)
27. As at 5.00 pm on 22 August 2024 the Applicant’s legal representative had not responded.
Procedural requirements
28. The Applicant has satisfied the requirement under s 151DA(3) of the 1987 Act. Six months has elapsed after it served a defence to the claim for work injury damages. The requirement under s 151DA(3) of the 1987 Act arose on 22 June 2024.
29. For the purposes of s 151DA(4) of the 1987 Act, the Applicant submits that the degree of permanent impairment is fully ascertainable. The parties resolved the claim for lump sum compensation on 12 October 2022 and lump sum compensation has been paid.
30. The Applicant submits the application to strike out the pre-filing statement can be decided solely on the basis of this written application (and annexures) and any written notice of opposition lodged by the Respondent.
Grounds
31. The Applicant brings this Application on the following grounds:
(a) Ground 1: There is no evidence that the Respondent has taken any steps to progress the claim since the Certificate of Mediation Outcome was issued by the Personal Injury Commission on 11 April 2024.
Submissions
Ground 1
32. The legislative preconditions to make this application have been satisfied.
33. The Respondent has not commenced proceedings in the District Court despite a Certificate of Mediation being issued on 11 April 2024. A period of four months has elapsed since the issue of the Certificate of Mediation.
34. Since the issue of the Certificate of Mediation the Respondent has neither prosecuted the claim nor offered any explanation or reason for this failure (Pasminco Cockle Creek Smelter Pty Ltd v Gardner [2006] NSWWCCPD 108 and Kurt’s Plumbing Services Pty Ltd v Shahin [2016] NSWWCCPD 24).
35. The Applicant wishes to bring finality to the potential work injury damages claim brought by the Respondent (Luke v McCarthy & McCarthy [2008] NSWWCCPD 123).
36. The Applicant therefore considers it appropriate that the pre-filing statement be struck out.
Costs
37. The Applicant seeks an order that the Respondent bear the costs of this Application.
Orders sought
38. The pre-filing statement served on 7 December 2023 by the Respondent is struck out pursuant to s 151DA(3) of the 1987 Act.
39. The Respondent pay the Applicant’s costs of this application or in the alternative, there be no order as to costs.
Authorities
• Luke v McCarthy & McCarthy [2008] NSWWCCPD 123
• Pasminco Cockle Creek Smelter Pty Ltd v Gardner [2006] NSWWCCPD 108
• Kurt’s Plumbing Services Pty Ltd v Shahin [2016] NSWWCCPD 24
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