State of New South Wales (NSW Police Force) v Skene
[2023] NSWPICPD 37
•28 June 2023
| DETERMINATION OF AN APPLICATION TO STRIKE OUT A PRE‑FILING STATEMENT | |
CITATION: | State of New South Wales (NSW Police Force) v Skene [2023] NSWPICPD 37 |
APPLICANT DEFENDANT: | State of New South Wales (NSW Police Force) |
RESPONDENT CLAIMANT: | Trisha-Anne Skene |
FILE NUMBER: | W1675/23 |
PRESIDENTIAL MEMBER: | President Judge Phillips |
DATE OF DECISION: | 28 June 2023 |
ORDERS MADE ON APPLICATION: | 1. The pre-filing statement filed by the respondent claimant dated 9 August 2020 is struck out pursuant to s 151DA(3) of the Workers Compensation Act 1987. 2. No order as to costs. |
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 - Pasminco Cockle Creek Smelter Pty Ltd v Gardner [2006] NSWWCCPD 108, Luke v Frank William McCarthy and Barbara Annette McCarthy t/as FW & BA McCarthy Transport [2008] NSWWCCPD 123 and John Lacey Earth Moving Pty Ltd v Campbell-Willis [2007] NSWWCCPD 197 considered |
HEARING: | 27 June 2023 |
REPRESENTATION: | Applicant Defendant: |
| Megan O'Donohue, solicitor | |
| Rankin Ellison Lawyers | |
| Respondent Claimant: | |
| Mr D Cameron, solicitor | |
| Don Cameron & Associates | |
INTRODUCTION
This matter concerns an application filed by the applicant defendant, the State of New South Wales (New South Wales Police Force), seeking an order pursuant to s 151DA(3) of the Workers Compensation Act 1987 (the 1987 Act) that the respondent claimant’s pre-filing statement be struck out. For the following reasons, I grant the application to strike out the pre-filing statement.
BACKGROUND
The respondent claimant was a police officer. She claims that she suffered psychological injuries during the course of her employment with the applicant defendant. The circumstances of how the respondent claimant suffered these injuries are traumatic and are fully described in the evidence. In particular, the origin, nature and extent of her injuries are described by Prof Nick Glozier in his Medical Assessment Certificate dated 27 June 2019. Prof Glozier was an Approved Medical Specialist in the former Workers Compensation Commission and assessed the respondent claimant’s whole person impairment at 24%. A Certificate of Determination was subsequently issued on 30 July 2019, ordering the applicant defendant to pay the respondent claimant lump sum compensation pursuant to s 66 of the 1987 Act, based on 24% whole person impairment. I will not for the purposes of this decision repeat the facts and circumstances described in the medical evidence and, in particular, by Prof Glozier, given their sensitivity. I note that there is no disputation about these matters which form the background to this decision. The respondent claimant alleges that the relevant date of injury is 18 February 2015, which was the culmination of the occurrence of a number of traumatic events taking place during the course of her employment with the applicant defendant commencing from mid-2010 onwards.
The respondent claimant subsequently served a claim for work injury damages by letter dated 30 September 2019, which was disputed by way of a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998, dated 12 December 2019. The respondent claimant then served the pre-filing statement by letter dated 9 August 2020, with the applicant defendant serving the pre-filing defence on 21 September 2020.
The respondent claimant filed an Application for Mediation in the Workers Compensation Commission in December 2020, which application was subsequently discontinued. In the subsequent years, enquiries were made of the respondent claimant as to whether she intended to pursue her claim, and whether the pre-filing statement would be withdrawn. The responses were intermittent. A settlement conference between the parties took place on 24 February 2023, which was not successful in resolving the dispute. After this, further enquiry was made by the applicant defendant as to the intentions of the respondent claimant in respect of pursuing her work injury damages claim. The respondent claimant’s legal representative indicated he was seeking to clarify the situation. The Application to Strike Out the Pre-Filing Statement was thus filed in the Commission in March 2023.
There is no dispute that a period of approximately two years and nine months has passed since the service of the applicant defendant’s pre-filing defence, meaning that the requirements of s 151DA(3) of the 1987 Act have been satisfied. The pre-conditions in s 151DA(4) of the 1987 Act for the making of an order striking out the pre-filing statement are also satisfied, including the ascertainment of the respondent claimant’s degree of permanent impairment.
SUBMISSIONS
The applicant defendant submits that there is no evidence that the respondent claimant has taken any steps to progress the claim since filing her Application for Mediation in December 2020. The applicant defendant refers to the decision of President Justice Sheahan in Pasminco Cockle Creek Smelter Pty Ltd v Gardner[1] and a decision of President Judge Keating in Luke v Frank William McCarthy and Barbara Annette McCarthy t/as FW & BA McCarthy Transport[2] in support of this application. I have had regard to both decisions and the passages relied upon by the applicant defendant.
[1] [2006] NSWWCCPD 108.
[2] [2008] NSWWCCPD 123.
The respondent claimant has not filed any opposition to this application. The respondent claimant indicated that she neither consented to nor opposed the orders sought to strike out the pre-filing statement and that there be no order as to costs.
I listed this matter for a brief hearing on Tuesday, 27 June 2023. This was a virtual hearing by way of the Personal Injury Commission’s MS Teams platform. Ms O’Donohue, solicitor, appeared on behalf the applicant defendant and Mr Cameron, solicitor, appeared on behalf of the respondent claimant. Mr Cameron confirmed that the respondent claimant had not been prejudiced in the prosecution or preparation of her claim as a result of the 2020–22 COVID-19 pandemic, as I noted that the timing of her claim fell within this period. Mr Cameron confirmed that he had recently assumed the conduct of this matter from the respondent claimant’s former solicitors, Slater and Gordon. Mr Cameron advised that it was the respondent claimant’s desire to pursue other remedies, that is, other than her work injury damages claim. Finally, Mr Cameron confirmed that the respondent claimant maintained her position of neither consenting to nor opposing the orders sought.
DISCUSSION
It is necessary to deal with one formal matter before proceeding to decide this application. As is evident from the history detailed above, the applications which have been pursued by the respondent claimant were in the former Workers Compensation Commission. As a result of the commencement of the Personal Injury Commission Act 2020 on 1 March 2021, the Workers Compensation Commission was abolished, and all of its former functions transferred into the Personal Injury Commission. Consequently, I can decide this application.
There is no evidence that court proceedings have been commenced nor that any other active steps have been taken to attempt to resolve the matter since the pre-filing statement was filed in 2020, other than the unsuccessful settlement conference earlier this year. There is no evidence that the respondent claimant has been actively taking steps to progress this matter. In John Lacey Earth Moving Pty Ltd v Campbell-Willis,[3] Acting President Byron at [46] stated, inter alia, that a pre-filing statement was not intended to extend time indefinitely. That is a circumstance which I am giving close consideration to. The notification of the claim for work injury damages was served in September 2019, and the pre-filing statement on 9 August 2020. It is now June 2023, and the respondent claimant is not indicating any desire to actively pursue these proceedings.
[3] [2007] NSWWCCPD 197.
Given the history of this matter and the position adopted by the respondent claimant in response to this application, I find that the circumstances required to strike out a pre-filing statement have been established.
DECISION
The pre-filing statement filed by the respondent claimant dated 9 August 2020 is struck out pursuant to s 151DA(3) of the 1987 Act.
COSTS
This application seeks no order as to costs. As this is not opposed, I will make that order.
No order as to costs.
Judge Phillips
President
28 June 2023
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