State of NSW (Department of Education) v Moore
[2024] NSWPICPD 65
•21 October 2024
| DETERMINATION OF AN APPLICATION TO STRIKE OUT A PRE‑FILING STATEMENT | |
CITATION: | State of NSW (Department of Education) v Moore [2024] NSWPICPD 65 |
APPLICANT DEFENDANT: | State of NSW (Department of Education) |
RESPONDENT CLAIMANT: | Sharen Moore |
INSURER: | Allianz - TMF |
FILE NUMBER: | W24669/24 |
PRESIDENTIAL MEMBER: | President Judge Phillips |
DATE OF DECISION: | 21 October 2024 |
ORDERS MADE ON APPLICATION: | 1. The Pre-Filing Statement dated 6 December 2022 is struck out pursuant to s 151DA(3) of the Workers Compensation Act 1987. 2. I reject the applicant defendant’s application for the costs of this application. |
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 |
HEARING: | On the papers |
REPRESENTATION: | Applicant Defendant: |
| Mr D Khoshaba, solicitor | |
| Bartier Perry Lawyers | |
| Respondent Claimant: | |
| Mr R Hopper, solicitor | |
| Law Partners | |
INTRODUCTION
The applicant defendant, State of NSW (Department of Education), seeks to strike out the respondent claimant, Sharen Moore’s, Pre-Filing Statement (PFS).
A history of the matter is as follows:
(a) On 23 July 2013 the respondent claimant suffered an injury at work.
(b) On 17 February 2022 the respondent claimant and applicant defendant entered into a Complying Agreement settling the respondent claimant’s permanent impairment claim pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 29% whole person impairment (WPI).
(c) On 9 June 2022 the respondent claimant 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 defendant, claiming work injury damages.
(d) On 23 June 2022 the applicant defendant requested further and better particulars from the respondent claimant.
(e) On 5 October 2022 the respondent claimant responded to the request for further and better particulars.
(f) On 5 December 2022 the applicant defendant issued a notice pursuant to s 78 of the 1998 Act on the respondent claimant, denying liability for the work injury damages claim.
(g) On 6 December 2022, the respondent claimant served a PFS on the applicant defendant.
(h) On 13 January 2023, the applicant defendant served a Pre-Filing Defence (PFD) on the respondent claimant.
(i) On 19 January 2023 the respondent claimant applied to the Personal Injury Commission (Commission) for referral of the claim for mediation.
(j) On 21 February 2023, the parties took part in mediation before Mr John Tancred, however, were unable to resolve the dispute and reach a settlement.
(k) On 11 May 2023 the respondent claimant made an offer to resolve the claim via letter to the applicant defendant.
(l) On 15 February 2024 the applicant defendant made an offer via email to resolve the claim.
(m) On 20 February 2024 the respondent claimant emailed the applicant defendant reinstating her previous offer on a final basis.
(n) On 22 February 2024 the applicant defendant emailed the respondent claimant requesting the parties discuss the matter further in order to resolve the matter.
(o) On 28 February 2024 the applicant defendant emailed the respondent claimant stating the matter could not be resolved if the respondent claimant is simply re-instating the previous offer.
(p) On 8 April 2024 the applicant defendant emailed the respondent claimant seeking information as to whether the respondent claimant was pressing with the claim, otherwise instructions would be obtained to strike out the Pre-Filing Statement.
(q) On 15 April 2024 the respondent claimant’s representative emailed the applicant defendant advising that they do not have instructions to file proceedings.
In light of the history, the applicant defendant makes this application that the PFS be struck out.
The respondent claimant is aware of this application and has not made any submissions in opposition to the application.
DISCUSSION
The history of the matter described above has not been disputed by the respondent claimant.
The necessary prerequisites for the making of an order under s 151DA(3) of the 1987 Act have been established. I am satisfied that the respondent claimant’s degree of permanent impairment has been ascertained (29% WPI) and was agreed in the Complying Agreement entered into by the parties on 17 February 2022. As a consequence, the prohibition contained in s 151DA(4) of the 1987 Act is not enlivened.
The defence to the claim was filed and served by the applicant defendant on 13 January 2023. Clearly more than 6 months have elapsed since that date for the purposes of s 151DA(3) of the 1987 Act. Indeed, more than 18 months have elapsed since that date.
A mediation took place before a Commission mediator, Mr J Tancred, on 19 February 2023, which was unable to effect a resolution of the dispute. Since that time the applicant defendant records the history of the negotiations which have taken place which have not been successful. However no steps to advance the claim or file court proceedings have been made by the respondent claimant. There is no submission from the respondent claimant evincing any intention to pursue the proceedings.
The purpose of a Pre-Filing Statement is to provide the parties with the time and opportunity to finalise the pre-litigation phase of the proceedings.[1] This period though is not indefinite. The schema of s 151DA of the Act is to provide a period to enable the pre-litigation actions to be completed, and if no action is taken to progress the matter in the 6 months after the defence was filed, an application to strike out may then be pursued, provided the other requirements are satisfied which is the case in this matter. A Pre-Filing Statement is not a method whereby a claim may be held in abeyance for an extended period, unless there is a sound reason for so doing, awaiting the claimant to proceed.
[1] Luke v McCarthy [2008] NSWWCCPD 123 per Keating P.
The incident the subject of the proceedings took place in July 2013, over 11 years ago. The applicant defendant on the motion makes a general claim of prejudice, based on what it says is a “substantial delay in making this claim” and in its prosecution.[2] Whilst no specific claim of any actual prejudice has been identified, I accept that the passage of time (in excess of 11 years) will cause some prejudice to the applicant defendant.
[2] Applicant defendant’s submissions, [20]–[21].
These proceedings were commenced in December 2022. It is apparent that the respondent claimant around this time was diligently pursuing the proceedings, a request for particulars had been answered and a mediation in early 2023 was attended. Since then, apart from what appears to be rather peremptory exchanges of offers, these proceedings have sat in abeyance.
In light of this history and absent any indication from the respondent claimant about her intentions with respect to pursuing the proceedings, I will accede to the applicant defendant’s application.
The applicant defendant seeks the costs of the application to strike out, but the submission is not supported by any reasons other than by pointing to the submissions in support of the application to strike out. I decline to make any order as to costs.
DECISION
The respondent claimant’s Pre-Filing Statement dated 6 December 2022 is struck out pursuant to s 151DA(3) of the 1987 Act.
COSTS
I reject the applicant defendant’s application for costs.
Judge Phillips
PRESIDENT
21 October 2024
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