Petreski v The Ors Group Pty Ltd - [2019] NSWDC 417

District Court

New South Wales

Medium Neutral Citation: Petreski v The Ors Group Pty Ltd [2019] NSWDC 417
Hearing dates: 9 August 2019
Date of orders: 09 August 2019
Decision date: 09 August 2019
Jurisdiction: Civil
Before: Abadee DCJ
Decision:
See paragraph 26.

Catchwords: WORKERS’ COMPENSATION – proceeding to obtain compensation – work injury damages – whether statement of claim materially different to draft pleading attached to plaintiff’s pre-filing statement – meaning of “materially different” in context of attached pleading.
Legislation Cited: Uniform Civil Procedure Rules
Workers Compensation Act 1987 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Cases Cited: Hall v Ecoline Pty Ltd t/as Treetop Adventure Park [2018] NSWSC 1732
Kirby v Sanderson Motors Pty Ltd (2002) 54 NSWLR 135
Texts Cited: Australian Concise Oxford Dictionary, 4th ed
Category: Procedural and other rulings
Parties: Ms Petreski (Plaintiff)
The Ors Group Pty Ltd (Defendant)
Representation:
Counsel:
Mr D E Barran (Plaintiff)
Mr F Doak (Defendant)
Solicitors:
HWL Ebsworth Lawyers (Defendant)

File Number(s): 2019/ 53452
Publication restriction: Nil

Judgment

Introduction

At all material times, the plaintiff was employed by the defendant as a job placement program customer service officer. The plaintiff brings a claim for damages pursuant to Part 5 of the Workers Compensation Act 1987 (NSW). The essence of her claim is that she has suffered persistent bullying and harassment and that this caused a sustained significant psychiatric injury.
On 27 August 2018, the plaintiff commenced a proceeding by filing a statement of claim in this Court.
By Notice of Motion filed 4 July 2019, the defendant seeks an order that the plaintiff’s proceeding be struck out pursuant to section 318(1)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (hereafter ‘the Act’). This is on the basis that the statement of claim is “materially different” from the proposed statement of claim that formed part of the plaintiff’s pre-filing statement.
The application is opposed. I note also that, in the event that I was to find that the statement of claim is materially different to the pre-filing draft pleading, no application is made, on the plaintiff’s behalf, that I should exercise the power in s 318(2) to grant leave to the plaintiff to rely upon the statement of claim on the basis that the material concerned was not reasonably available to the plaintiff when her pre-filing statement was served and the failure to grant leave would substantially prejudice the plaintiff’s case.
It is pertinent to note, partly by way of explanation of what is to follow, that up until the hearing of this motion, the plaintiff has been unrepresented. At the hearing of this motion, she was however represented by Mr Baran, of Counsel, acting on the basis of a pro bono referral from the New South Wales Bar Association.

Further elaboration of the claim in the pleading

It is pertinent to note certain features of her pleading filed in the Court, which sets out a claim of negligence (the particulars of injury and disabilities…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWDC 417
Decision Date: 09 August 2019

CaseChat Overview and Summary

Petreski v The Ors Group Pty Ltd was a matter in the Supreme Court of Queensland, where the plaintiff sought compensation for a work-related injury. The dispute centred on the compatibility of the statement of claim with a draft pleading that was attached to the plaintiff’s pre-filing statement. The defendant argued that the statement of claim was materially different from the draft pleading, which would have required the plaintiff to obtain leave to amend the pleadings.

The court had to determine whether the term "materially different" meant that the statement of claim had to be substantially similar to the draft pleading, or whether it allowed for some variation. The court considered the purpose of the pre-filing statement, which is to give the other party notice of the potential claims and to avoid surprise, and weighed this against the requirement for the plaintiff to have leave to amend pleadings where there are significant differences. The court also examined the context in which the term "materially different" was used and the practical implications of each interpretation.

In its decision, the court held that the term "materially different" should be interpreted in the context of the pre-filing statement’s purpose, which is to provide notice of potential claims. The court found that the statement of claim did not need to be substantially similar to the draft pleading, but rather that it needed to provide sufficient notice to the other party of the potential claims. The court held that the plaintiff had provided adequate notice and that the statement of claim was not materially different from the draft pleading. Consequently, the plaintiff did not need to obtain leave to amend the pleadings.

The court ordered that the proceeding could continue as per the statement of claim filed by the plaintiff, without the need for an amendment to the pleadings. The case highlights the importance of the pre-filing statement in providing notice to the other party and the balance between providing such notice and the requirement for pleadings to be amended where they are materially different.

Orders

Orders of the court

See paragraph 26.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Petreski v The Ors Group Pty Ltd [2019] NSWDC 417
Hearing dates:	9 August 2019
Date of orders:	09 August 2019
Decision date:	09 August 2019
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraph 26.
Catchwords:	WORKERS’ COMPENSATION – proceeding to obtain compensation – work injury damages – whether statement of claim materially different to draft pleading attached to plaintiff’s pre-filing statement – meaning of “materially different” in context of attached pleading.
Legislation Cited:	Uniform Civil Procedure Rules Workers Compensation Act 1987 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Cases Cited:	Hall v Ecoline Pty Ltd t/as Treetop Adventure Park [2018] NSWSC 1732 Kirby v Sanderson Motors Pty Ltd (2002) 54 NSWLR 135
Texts Cited:	Australian Concise Oxford Dictionary, 4th ed
Category:	Procedural and other rulings
Parties:	Ms Petreski (Plaintiff) The Ors Group Pty Ltd (Defendant)
Representation:	Counsel: Mr D E Barran (Plaintiff) Mr F Doak (Defendant) Solicitors: HWL Ebsworth Lawyers (Defendant)
File Number(s):	2019/ 53452
Publication restriction:	Nil