State of New South Wales (NSW Police Force) v Adams
[2024] NSWPICPD 82
•11 December 2024
| DETERMINATION OF AN APPLICATION TO STRIKE OUT A PRE‑FILING STATEMENT | |
CITATION: | State of New South Wales (NSW Police Force) v Adams [2024] NSWPICPD 82 |
APPLICANT DEFENDANT: | State of New South Wales (NSW Police Force) |
RESPONDENT CLAIMANT: | Patrick Adams |
INSURER: | Employers Mutual Limited - as agent for the NSW Self Insurance Corporation |
FILE NUMBER: | W9203/23 |
PRESIDENTIAL MEMBER: | President Judge Phillips |
DATE OF DECISION: | 11 December 2024 |
ORDERS MADE ON APPLICATION: | 1. The respondent claimant’s Pre-Filing Statement filed 8 January 2020 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, Luke v McCarthy [2008] NSWWCCPD 123 considered and applied |
HEARING: | On the papers |
REPRESENTATION: | Applicant Defendant: |
| Mr A Morrissey, solicitor | |
| Bartier Perry Lawyers | |
| Respondent Claimant: | |
| Unrepresented | |
INTRODUCTION
The applicant defendant, State of NSW (NSW Police Force), seeks to strike out the respondent claimant, Patrick Adams’, Pre-Filing Statement (PFS).
A history of the matter is as follows:
(a) Between June 2010 and July 2014, the respondent suffered a psychiatric injury due to the nature and conditions of his work.
(b) On 4 April 2018 the respondent and applicant entered into a Complying Agreement settling the respondent’s permanent impairment claim pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 17% whole person impairment (WPI).
(c) On 18 May 2018 the respondent served a notice pursuant to ss 281 and 282 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on the applicant, claiming work injury damages.
(d) On 10 May 2019 the applicant issued a notice pursuant to s 78 of the 1998 Act on the respondent denying liability for the work injury damages claim.
(e) On 8 January 2020 the respondent served a PFS on the applicant.
(f) On 10 February 2020 the applicant served a Pre-Filing Defence (PFD) on the respondent.
(g) The parties participated in a mediation conference on 26 May 2020 without agreeing on a resolution of the dispute.
(h) On 23 March 2023 the applicant wrote to the respondent’s solicitors requesting the parties take part in an Informal Settlement Conference (ISC). The respondent’s solicitors responded that same day stating that they were no longer acting for the respondent.
(i) On 23 March 2023 the applicant wrote directly to the respondent asking if he intended on pursuing the work injury damages claim and if so, if he wanted to participate in an ISC. The applicant stated if he did not respond, it would lodge an application to strike out the PFS with the Personal Injury Commission (the Commission). The applicant failed to respond.
(j) On 7 December 2023 the applicant filed an application to strike out the PFS in the Commission.
(k) The Commission directed the respondent to file a Notice of Opposition with the Commission by 5 February 2024.
(l) On 8 February 2024, the Commission received email correspondence from the respondent’s brother, Michael Adams, which was accepted by the Commission as being an opposition to the PFS.
(m) The matter was listed for a virtual conference before me on 18 April 2024 where Mr Anthony Morrisey of Bartier Perry appeared on behalf of the applicant and Mr Michael Adams, the respondent’s brother, appeared on behalf of the respondent. The Commission issued a Direction ordering the respondent to provide evidence in support of his opposition to the Application to Strike Out a PFS by 25 August 2024.
(n) On 21 August 2024 Mr Michael Adams emailed the Commission stating that the parties were participating in private mediation and requested an extension of time to provide evidence in opposition to the Application to Strike out the PFS.
(o) On 30 August 2024 the Commission issued a Direction granting an extension of time for the respondent to provide evidence in relation to the opposition to the Application to Strike out the PFS and for the parties to notify the Commission of the agreed date of mediation by 6 September 2024.
(p) A Mediation took place on 25 November 2024 and was not successful in resolving the dispute.
(q) On 1 December 2024, Mr Michael Adams emailed the Commission confirming that the respondent no longer objected to the appellant’s application to strike out the PFS. The respondent maintained his objection to the appellant’s claim for costs.
DISCUSSION
The history of the matter as 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. Namely, more than six months have elapsed from the date the defence was served on the respondent (on 10 February 2020). I am satisfied that the respondent’s degree of permanent impairment is fully ascertainable as the parties agreed to a 17% WPI in a Complying Agreement dated 4 April 2018, so the prohibition contained in s 151DA(4) of the 1987 Act is not enlivened. Whilst the respondent is not legally represented, he had for an extended period had the services of a firm of solicitors. The respondent is currently being assisted by his brother, and I am satisfied that the respondent and his brother are aware of the nature of this application. This is evident from the terms of the email dated 1 December 2024 from the respondent’s brother withdrawing the objection to this application.
The basis of the application is that since the mediation on 26 May 2020, the respondent has not taken any steps to progress the matter. In making this remark, I am not in any way being critical of the respondent. I am aware from the explanation given in the directions hearing before me on 18 April 2024 that the respondent’s psychological condition has inhibited his ability to pursue these proceedings.
There is no evidence that has been placed before me that court proceedings have been commenced by the respondent in relation to the claim contained in the PFS. That claim alleges that the respondent suffered injury whilst in the employ of the applicant between 21 January 2010 and 1 August 2014, a period of more than ten years ago. The respondent’s brother, in his email of 1 December 2024, states that “[g]iven the time since this all started and the raw emotion and stress this still causes Patrick, I now do not see a future date where he could attend court to address his injustice.”
Given this history and the respondent’s inability to pursue the proceedings, I will grant the applicant’s application to strike out the PFS. The time from the events which give rise to the cause of action and the filing of the PFS are lengthy. Two attempts at mediating the matter have not been successful and the next step in the proceedings, were the respondent so minded, would be to commence court proceedings. Evidently this is not going to happen.
The filing of a PFS is not designed to “park” a work injury damages claim indefinitely. This is contrary to the legislative purpose as stated by President Keating in Luke v McCarthy[1] where his Honour remarked that the purpose of s 151DA(3) of the 1987 Act was to give the parties sufficient opportunity to complete all pre-litigation requirements. His Honour also said that the section did not serve to extend time indefinitely while the PFS was current.
[1] [2008] NSWWCCPD 123.
The applicant has sought the costs of this application be paid by the respondent. The respondent opposes this application. The applicant has not supported its claim for costs with any submissions or reasons. I am cognisant of the impairment that the respondent is suffering from. There is nothing in his behaviour that would justify the making of a costs order against him. The appropriate order is that each party bear their own costs of the application and of the proceedings.
DECISION
The respondent claimant’s Pre-Filing Statement filed 8 January 2020 is struck out pursuant to s 151DA(3) of the 1987 Act.
Each party is to bear their own costs of these proceedings.
Judge Phillips
PRESIDENT
11 December 2024
2