South Western Sydney Area Health Service v Roodenrys
[2007] NSWWCCPD 129
•31 May 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF AN APPLICATION TO STRIKE OUT A PRE-FILING STATEMENT
CITATION:South Western Sydney Area Health Service v Roodenrys [2007] NSWWCCPD 129
APPLICANT DEFENDANT: South Western Sydney Area Health Service
RESPONDENT CLAIMANT: Christopher Arthur Roodenrys
FILE NUMBER: WCC17432-04
DATE OF DECISION: 31 May 2007
SUBJECT MATTER OF DECISION: Application to strike out pre-filing statement; section 151DA of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: President Justice Terry Sheahan
HEARING:On the papers
REPRESENTATION: Applicant Defendant: Hunt & Hunt
Respondent Claimant: Beilby, Poulden Costello
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 Roodenrys (‘the Claimant’) alleges that on or about 17 August 2002 he suffered a severe fracture injury to his right tibia and ankle (ultimately leading to a below knee amputation) when he fell off a roof of the mental health building trying to retrieve a ball, during the course of his employment as a nurse with the South Western Sydney Area Health Service (‘the Defendant’).
On 3 October 2003 the Claimant’s solicitors gave notice to the Defendant of a claim by Mr Roodenrys under sections 66 and 67 of the Worker Compensation Act 1987 (‘the 1987 Act’).
The parties settled this claim and on 24 March 2004 the Workers Compensation Commission (‘the Commission’) advised the parties that a Section 66A Agreement was registered in respect of $47,000.00 for 28% whole person impairment, and $40.000 pursuant to section 67 for pain and suffering (matter number WCC 5307-04).
On 28 July 2004 the Claimant served a pre-filing statement under section 315 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), and on 24 November 2004 the Defendant served a response to the pre-filing statement.
An application for mediation was made on 26 October 2004, a mediation was conducted on 12 January 2005 and a Certificate of Mediation Outcome of the same date confirmed that the parties were unable to settle their dispute.
On 11 September 2006, the Defendant made application to the Commission to strike out the Claimant’s pre-filing statement.
Upon receipt of the application, the Commission issued a Direction on 17 October 2006 requesting that by 1 November 2006, 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 15 November 2006. 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 22 November 2006.
On 9 November 2006 the solicitors for the Claimant wrote to the Commission stating that they were instructed to make no submissions in reply to the strike out application.
Apart from the initial application, I have before me no further submissions filed by the Defendant. I do, however, have before me the Commission files in respect of both the application to strike out the pre-filing statement, and the application for mediation.
SUBMISSIONS
The Defendant seeks an order striking out the pre-filing statement on the basis that the matter has not progressed since the mediation on 12 January 2005.
As noted at paragraph 8 above, the Claimant has expressly declined to make submissions in reply.
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
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.
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…”
In this particular case, the Defendant submits that the Claimant’s pre-filing statement was served on 29 March 2004, approximately one year before the three-year limitation period in section 151D expired. It, therefore, stopped time from running on and from 29 March 2004.
The Defendant submits that it served a response to the pre-filing statement on 24 November 2004.
There is nothing before me to suggest that the Defendant has at any time alleged that service of the Claimant’s pre-filing statement failed to comply with section 315.
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)).
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 to:
·facilitate the resolution of the claim prior to commencing court proceedings, through the early exchange of information and evidence, and
· enable the participation of the parties in mediation.
As I noted in Pasminco Cockle Creek Smelter Pty Ltd v Gardner [2006] NSWWCCPD 108
at [15]:
“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.”
After the issue of the mediation certificate, the Claimant was free to commence court proceedings for the recovery of work injury damages (see section 318A(4) of the 1998 Act).
Two years have elapsed since the mediation conference and there is no evidence that court proceedings for work injury damages have been commenced.
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 11 September 2006, received by the Commission on 18 September 2006. This application was clearly made more than six months after the Defendant served its response to the pre-filing statement on 24 November 2004, and, therefore, complies with the requirements in section 151DA(3).
The Claimant’s solicitors have provided no explanation for their delay in commencing court proceedings in the period of time from the completion of mediation on 12 January 2005 to date, nor any submission that the pre-filing statement should remain current, having expressly declined the opportunity to make submissions in respect of the application currently before me.
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.”
Part 7 of Chapter 7 of the 1998 Act deals with the medical assessment processes in the Commission. The parties have resolved the claims pursuant to sections 66 for 28% whole person impairment, which exceeds the 15% threshold requirement for a work injury damages claim.
As noted in paragraph [3] above, the Commission registered a Section 66A Agreement and notified the parties of the registration by letter dated 29 March 2004. 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.
Given the history of this matter and, for the reasons set out below, I consider this to be 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;
· two years have now elapsed from the date of completion of the pre-litigation phase with the issuing of the mediation certificate dated 12 January 2005;
· there is no evidence that court proceedings have been commenced nor that any other active steps have been taken to resolve the matter, since the failed mediation, and
· the Claimant has expressly declined to oppose 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.
Justice Terry Sheahan
President
31 May 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUSTICE TERRY SHEAHAN, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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