State of New South Wales (Secretary, Department of Education) v BNQ

[2025] NSWPICPD 30

DETERMINATION OF AN APPLICATION TO STRIKE OUT A PRE‑FILING STATEMENT

CITATION:

State of New South Wales (Secretary, Department of Education) v BNQ [2025] NSWPICPD 30

APPLICANT DEFENDANT:

State of New South Wales (Secretary, Department of Education)

RESPONDENT CLAIMANT:

BNQ

INSURER:

Allianz - TMF

FILE NUMBER:

W30103/24

PRESIDENTIAL MEMBER:

President Judge Phillips

DATE OF DECISION:

2 April 2025

ORDERS MADE ON APPLICATION:

1. I order pursuant to r 132(1) of the Personal Injury Commission Rules 2021 that the respondent worker’s identity be de-identified for the purposes of this decision.

2. The respondent claimant’s Pre-Filing Statement dated 13 July 2022 is struck out pursuant to s 151DA(3) of the Workers Compensation Act 1987.

3.     Each party is to bear its own costs of these proceedings.

CATCHWORDS:

WORKERS COMPENSATION – Pre-Filing Statement struck out by order of the President – sections 151DA(3) and s151DA(4) of the Workers Compensation Act 1987, State of New South Wales (NSW Police Force) v Adams [2024] NSWPICPD 82, Luke v McCarthy [2008] NSWWCCPD 123 considered and applied – order for de-identification of worker made pursuant to r 132(1) of the Personal Injury Commission Rules 2021

HEARING:

27 March 2025

REPRESENTATION:

Applicant Defendant:

Mr T Tooher, solicitor

Bartier Perry Lawyers

Respondent Claimant:

Ms K Parisis, solicitor

Stacks Goudkamp

INTRODUCTION

1. The applicant defendant, the State of New South Wales (Secretary, Department of Education) (applicant), seeks to strike out the respondent claimant’s (respondent) Pre-Filing Statement (PFS).

2. The respondent had been employed by the appellant as a schoolteacher and as an assistant principal.

3. The respondent brought proceedings in the former Workers Compensation Commission (WCC) with respect to a psychological injury suffered by the respondent during the course of her employment with the applicant. For the purposes of this decision, given the history I will recount which is relevant to this application, I do not need to traverse the facts of what occurred, and which caused the respondent’s injury.

4. In a decision dated 10 March 2020, the WCC found in favour of the respondent, finding that the applicant had not established a defence under s 11A of the Workers Compensation Act 1987 (1987 Act). In the same decision, the WCC deemed the date of injury to be the 25 January 2019 and made an award of weekly compensation and medical expenses in favour of the respondent.[1] Subsequently, the respondent was assessed by a WCC Approved Medical Specialist, Dr John Baker psychiatrist, who issued a Medical Assessment Certificate on 13 October 2020 which assessed the respondent as suffering from a Major Depressive Disorder resulting in a whole person impairment (WPI) of 22%. Subsequently the WCC issued a further Certificate of Determination on 17 November 2020 ordering the applicant to pay the respondent the sum of $58,000 in respect of 22% WPI resulting from the psychological injury deemed to have occurred on 25 January 2019.[2]

   [1] WCC Certificate of Determination 77/20, 10 March 2020.

   [2] WCC Certificate of Determination 3512/20, 17 November 2020.

5. The PFS was served by the respondent on 18 July 2022. The applicant served a defence to the PFS on 29 August 2022. This matter was then the subject of a mediation in the Personal Injury Commission (Commission), the successor to the former WCC, on 14 November 2022. The mediation resulted in an agreement between the parties to resolve the claim. However, after the mediation, the parties were in dispute about the precise terms of the settlement.

6. The applicant at paragraphs [3]–[18] of the Application to Strike Out the PFS details the history of what occurred after the agreement was reached at the mediation. In summary, notwithstanding the agreement on the monetary amount of the settlement, for the reasons expressed in paragraphs [3]–[18], which are accepted by the respondent as being accurate, the matter remains unresolved.

7. In the respondent’s submissions in opposition to the application, the respondent complains that the Deed of Release supplied by the applicant was “not standard”. I set the submission out in full on this aspect:

   “8.     The Defendant’s Deed of Release was not standard in that it required the Claimant to:

   a. Resign from her employment.

   b. Not seek reemployment with the employer.

   c. Not bring, prosecute or pursue any further claims against the employer, regarding not just injury, but employment generally.

   d. Not to take any action which may disparage the employer.

   9.      While the Claimant’s industrial relations proceedings against the Defendant finalised, the Claimant remained unprepared to sign the Deed on the basis that it precludes her from pursing any further claims and making any further complaints in respect of the employer, in particular, for claims/complaints available under industrial relations/employment law.

   10.    We are instructed that claims of this nature are ongoing by the Claimant’s employment lawyers, Kennedys Law. Kennedys Law have advised the Claimant that signing such a Deed may preclude them from proceeding with further claims against the employer.”

8. I would remark that nowhere in the respondent’s submission is there any confirmation that proceedings have been commenced in the District Court of NSW nor has the respondent evinced any intention to do so. Rather, the only intention being indicated by the respondent is the pursuit of other undefined claims against the applicant through her employment lawyers, Messrs Kennedys.[3]

   [3] See paragraph [10] of the respondent’s submissions.

9. The respondent opposes having the PFS struck out.

HEARING

1. I listed this matter before me for oral hearing on Thursday 27 March 2025. During this hearing I asked the respondent worker’s legal representatives whether their client had any intention of pursuing her work injury damages claim in the District Court of NSW. The respondent worker’s solicitor confirmed that she had no instructions to commence work injury damages proceedings in the District Court. It was also confirmed that notwithstanding the respondent worker’s psychological injuries, she had capacity to give instructions to her legal representatives.

2. In the hearing, I explained that the purpose of a PFS is to enable all the pre-litigation steps to be completed and that it was not a process which enabled the matter to be held in abeyance indefinitely while other proceedings are pursued. I remarked that on my review of the papers, the respondent worker had the capacity to give her legal representatives instructions to pursue legal proceedings in other places. This indicated to me that the failure to pursue this matter appeared to be an intended decision. I indicated to the respondent worker’s solicitor that absent an indication that proceedings would be commenced in the District Court, I would strike out the PFS. I gave the respondent worker until Wednesday 2 April 2025 to confirm that the work injury damages proceedings are going to be filed in the District Court and that absent such an assurance, I would strike out the PFS.

3. As of Wednesday 2 April 2025, no such indication or assurance has been given to me.

DISCUSSION

1. In State of New South Wales (NSW Police Force) v Adams[4] I said the following at [7] about the PFS scheme:

   “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 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.”

   [4] [2024] NSWPICPD 82 (Adams).

2. In this matter, the respondent reached agreement on a monetary figure to resolve her claim but was unable to agree on the terms thereof due to her expressed desire to keep open other legal rights to pursue against the applicant. Indeed, an action was pursued in the Industrial Relations Commission of New South Wales, up to its internal appellate body, the Full Bench. The respondent has also evinced an intention to pursue other proceedings, which have not been specified, against the applicant. What these actions show is that the respondent, notwithstanding the disability she undoubtedly suffers from, is capable of giving instructions and pursuing legal proceedings in other places. I would remark that the respondent is legally represented in these proceedings and retained a specialist employment lawyer in her other proceedings. Leaving the PFS and not pursuing proceedings in the District Court while other proceedings are pursued is not an acceptable reason for resisting an order striking out the PFS.

3. I am satisfied that 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 since the defence was served (on 29 August 2022). I am satisfied that the respondent’s degree of permanent impairment is fully ascertainable as being 22% in accordance with the 17 November 2020 Certificate of Determination issued by the WCC. As a consequence, the prohibition contained in s 151DA(4) of the 1987 Act is not enlivened.

4. The mediation in this matter took place on 14 November 2022. Since that time the respondent has not taken any steps to pursue her rights for work injury damages in the District Court and at present has given her solicitors no instructions to do so. The respondent’s position seems to be to hold these proceedings in abeyance while she pursues other proceedings.

5. This is contrary to what I said in Adams (above) regarding the purpose and scheme of the PFS process. Given that the respondent has made no indication about her intentions to pursue these proceedings, I will grant the applicant’s application to strike out the PFS.

6. The applicant has sought an order that each party pay their own costs. That is an appropriate order in the circumstances.

7. The respondent has sought an order that this decision be redacted and/or de-identified having regard to the sensitive and confidential nature of the evidence. There is no opposition to this request. Pursuant to r 132(1) of the Personal Injury Commission Rules 2021 (Rules) I will make an order de-identifying the respondent in this decision. Given that I have not traversed the evidence in any detail, it is unnecessary for any order redacting the evidence be made.

DECISION

1. I order pursuant to r 132(1) of the Rules that the respondent worker’s identity be de-identified for the purposes of this decision.

2. The respondent claimant’s Pre-Filing Statement dated 13 July 2022 is struck out pursuant to s 151DA (3) of the Workers Compensation Act 1987.

COSTS

1. Each party is to bear its own costs of these proceedings.

Judge Phillips

PRESIDENT

2 April 2025