Think Education Services Pty Ltd v BVA - [2023] NSWPICPD 70

DETERMINATION OF AN APPLICATION TO STRIKE OUT A PRE‑FILING STATEMENT
CITATION:	Think Education Services Pty Ltd v BVA [2023] NSWPICPD 70
APPLICANT DEFENDANT:	Think Education Services Pty Ltd
RESPONDENT CLAIMANT:	BVA
FILE NUMBER:	W4460/23
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF DECISION:	6 November 2023
ORDERS MADE ON APPLICATION:	1. The respondent claimant’s pre-filing statement is struck out. 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; Workers Compensation Nominal Insurer v England [2011] NSWWCCPD 41; Kurt’s Plumbing Services Pty Ltd v Shahin [2016] NSWWCCPD 24 and John Lacey Earth Moving Pty Ltd v Campbell-Willis [2007] NSWWCCPD 197 considered
HEARING:	On the papers
REPRESENTATION:	Applicant Defendant:
Mr N Marhaba, solicitor
Hicksons Lawyers
Respondent Claimant:
Self-represented

INTRODUCTION

This matter concerns an application filed by the applicant employer (defendant in the principal action) 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

In order to deal with this application, I set out below the salient facts.
The respondent claimant was employed by the applicant as [redacted]. The respondent asserts that she suffered a serious psychiatric injury due to the nature and conditions of her employment with the applicant. Specifically, the respondent alleges that she was provided with an excessive workload and was subjected to confrontational, bullying and harassing behaviour. The respondent’s statement of claim alleges that this took place between [redacted].
In 2014, the respondent filed an Application to Resolve a Dispute in the former Workers Compensation Commission (WCC) and was referred to an Approved Medical Specialist, Dr Julian Parmegiani, psychiatrist. At that time, the respondent was represented by Paul A Curtis & Co Solicitors. Dr Parmegiani examined the respondent on 5 February 2015 for the purposes of assessing the respondent’s Whole Person Impairment (WPI) for a psychiatric/psychological disorder. In a Medical Assessment Certificate (MAC) issued by the WCC on 10 February 2015, the respondent was assessed at 17% WPI with a deemed date of injury being 28 October 2010. Dr Parmegiani certified that the impairment was both permanent and fully ascertainable.
On 13 March 2017, the respondent’s legal representative Paul A Curtis & Co Solicitors, served a claim for work injury damages on the applicant outlining particulars of negligence, injury and economic loss.[1] On 27 March 2017, Hicksons Lawyers wrote back seeking further particulars pursuant to s 281 of the Workplace Injury Management and Workers Compensation Act 1998 and seeking affidavit evidence to commence proceedings outside of the limitation period provided under s 151D of the 1987 Act.[2]
[1] Application to Strike Out a Pre-Filing Statement (Application), p 711.
[2] Application, p 718.
It appears this request for particulars was not responded to until 19 February 2020, almost three years later by Monaco solicitors. In that response, Monaco solicitors indicated that affidavit evidence in relation to s 151D would be served in due course.[3]
[3] Application, p 719.
The respondent then served a pre-filing statement together with a statement of claim, statement of particulars and supporting evidence, dated 2 April 2020.[4] The respondent was represented by Monaco Solicitors.
[4] Application, p 1.
A pre-filing defence dated 6 May 2020 was served by the applicant in response.[5] The matter was listed for mediation in the WCC before Mr D.J. Flynn on 23 June 2020. By certificate dated 1 July 2020, Mr Flynn certified that he had conducted a mediation between the parties and that the mediation had not able to resolve the dispute.
[5] Application, p 1,114.
In the supporting documents filed with this application, the applicant has included an exchange of correspondence and emails with the respondent’s then solicitors.[6] The first letter dated 3 May 2021 from the applicant’s lawyers, Messrs Hicksons, noted the unsuccessful mediation 11 months before and further noted that the respondent had not commenced proceedings in the District Court of New South Wales. Hicksons were enquiring about the respondent’s intentions in terms of pursuing these proceedings. This letter was not answered and was followed up by further letters dated 3 December 2021 and 17 January 2022. By email dated 19 January 2022, Monaco Solicitors on behalf of the respondent advised that they were in the process of obtaining instructions from the respondent and hoped to reply soon. No reply was forthcoming and Hicksons once more wrote to Monaco Solicitors on 2 May 2023 advising that unless a response to the previous correspondence was forthcoming within seven days, an Application to Strike Out the Pre-Filing Statement would be filed.
[6] Application, pp 1,320–1,324.
This application was filed in the Personal Injury Commission of New South Wales (the Commission) on 23 June 2023.
The Notice of Opposition to the Application to Strike Out the Pre-Filing Statement was due to be filed by 4 August 2023. No such document has been received by the Commission.
On 19 July 2023, an officer of the Commission’s Presidential unit contacted Monaco Solicitors and spoke to a Ms Hanna of that firm. Ms Hanna confirmed that the firm had been trying to contact the respondent for some time without success and as a result, considered that they no longer acted for the respondent. An email from the Commission was sent to the respondent on 19 July 2023 as well as a letter addressed to the respondent. In this letter, the respondent was asked to inform the Commission as soon as possible if any lawyers had been instructed on her behalf. She was directed to the relevant Commission forms to complete in response to the application, and also directed to services available to her should she seek representation or assistance. The Presidential unit staff also tried to call the respondent by telephone, this was also unsuccessful. A further unsuccessful attempt to make contact with the respondent was made on 17 August 2023. Enquiries were also made with the applicant, who advised that the workers compensation insurer was last in contact with the respondent in 2018. On 18 August 2023, the respondent wrote to the Commission advising that she “had not read anything in a long time" and was still trying to find people to help her. In response, she was directed to the letter of 19 July 2023 and in the circumstances was informed that a virtual conference would be held as an opportunity to understand the issues in relation to the application before it is determined. She was again encouraged to obtain legal advice or attend the conference directly to discuss her position.
I had listed the matter for virtual conference on the Commission’s MS Teams platform on 12 October 2023. This conference was unable to proceed after the respondent supplied a medical certificate the day prior that said that she could not participate in the conference between 11 October 2023 to 13 October 2023 due to a medical condition, including “panic attacks”. A further certificate was provided which indicated she could not attend any court hearings or conferences due to a “a severe mental health condition” from 6 October 2023 to 6 January 2024. As a consequence of this circumstance, I issued a Direction on 12 October 2023 which indicated the matter would therefore be determined on the papers and the respondent was informed she did not need to attend any hearings or conferences. The Direction stated:
“The following Directions are made:
1.     [BVA], the respondent claimant, is directed to lodge with the Commission and serve on Think Education Services Pty Ltd a Notice of Opposition to the Application to Strike Out a Pre-Filing Statement by Wednesday, 1 November 2023.
2.     Think Education Services Pty Ltd is directed to lodge with the Commission and serve any submissions in reply on [BVA] by Wednesday, 15 November 2023.
3.     The matter will then proceed to be determined on the papers.
4.     Both parties have liberty to apply on 2 days’ notice.
Brief Reasons
1.     A Pre-Filing Statement was served by [BVA] on 2 April 2020, alleging she suffered injury due to the negligence of her employer. A Pre-Filing defence was served on 14 May 2020. A mediation took place on 13 June 2020, which was unsuccessful.
2.     An Application to Strike Out a Pre-Filing Statement was subsequently lodged with the Commission and registered on 26 June 2023. It became apparent that [BVA] was no longer legally represented, and thus, the Commission contacted [BVA] to inform her of the proceedings, and the Application was served directly on her.
3.     A Notice of Opposition was due on 4 August 2023, but to date has not been received.
4.     As [BVA] is not legally represented, I called for this matter to be listed for a virtual conference on Thursday 12 October 2023 for the purpose of hearing from the parties and making directions for the efficient conduct of this application. Prior to the conference, on 9 October 2023, [BVA] informed the Commission that she was unable to participate in virtual conferences for medical reasons and supplied a medical certificate confirming this one day prior to the conference, on 11 October 2023.
5.     The virtual conference was therefore cancelled, yet the Application requires determination. In these circumstances, noting [BVA’s] medical condition and current lack of legal representation, I provide her with a further opportunity to respond to the Application to Strike Out a Pre-Filing Statement by 1 November 2023.
6.     Once this timetable expires and subject to any submissions received from the parties, I intend to proceed to determine this Application to Strike out a Pre-Filing Statement on the papers.”
The respondent has not filed any material since I issued this Direction. The only contact since the Direction was an email from the respondent dated 30 October 2023 indicating she still could not “understand anything” and sought a list of places that could assist her. Again, the Commission supplied the respondent with the information on these services. To date, nothing has been done and no further contact made. In the absence of an Opposition, there is no requirement for the applicant to file submissions in reply, as afforded by the Direction. I will therefore, in accordance with the action I indicated in paragraph 6 of the Direction, proceed to determine this application.

TRANSITIONAL MATTERS

The Commission was established on 1 March 2021 by virtue of s 6 of the Personal Injury Commission Act 2020 (the 2020 Act). On the same date, the WCC was abolished.[7] By virtue of the Transitional Provisions in Sch 1 of the 2020 Act, the Commission is empowered to determine proceedings such as the matter subject to this application.
[7] Schedule 1, Part 2, Division 2, clause 3(d) of the 2020 Act.

SUBMISSIONS

The applicant says that the legislative preconditions to make this application have been satisfied. Section 151DA(3) of the 1987 Act requires that such an application may not be made until at least six months has elapsed after the defendant served on the claimant a defence in accordance with s 316 of the Workplace Injury Management and Workers Compensation Act 1998. The defence was filed on 14 May 2020, more than three years ago. Section 151DA(4) of the 1987 Act says that the President may not order that a pre-filing statement be struck out if the degree of permanent impairment of the injured worker is not fully ascertainable. The applicant says that by virtue of the issuing of the MAC on 10 February 2015, this requirement has also been satisfied. Pausing here, I would remark that Dr Parmegiani in the MAC certified that the respondent’s impairment was both permanent and fully ascertainable.
The applicant says that since the unsuccessful mediation in June 2020, which is the subject the Certificate of Mediation outcome on 1 July 2020, the respondent has neither prosecuted her claim nor offered any explanation or reason for this failure. In support of this application the applicant relies upon the following three authorities:
(a)    Pasminco Cockle Creek Smelter Pty Ltd v Gardner [2006] NSWWCCPD 108 per President Justice Sheahan at [16];
(b)    Workers Compensation Nominal Insurer v England [2011] NSWWCCPD 41, a decision of President Judge Keating referring to [33] of that decision, and
(c)    Kurt’s Plumbing Services Pty Ltd v Shahin [2016] NSWWCCPD 24 per President Judge Keating.
I have had regard to the applicant’s submissions with respect to these three cases but will not repeat them for the purposes of this decision.

DISCUSSION

As I have described above, the respondent is aware of these proceedings but has not chosen to participate in the defence of the application. At the present time, it would appear that the respondent is not legally represented. Even though the respondent has submitted no argument at all in her case, I can infer the following matters. In 2015, Dr Parmegiani certified that as a result of her psychiatric/psychological injuries, the respondent suffered a WPI of 17%, which the doctor said was permanent. I note that Dr Parmegiani diagnosed that the respondent suffered from a Chronic Major Depressive Disorder. I can therefore safely infer that the respondent continues to suffer from the effects of her injuries. This may inhibit her ability to prosecute these proceedings.
I would also note that the period between March 2020 and mid-2022 corresponded with the limitations occasioned by the COVID-19 pandemic. I infer that the preparation and conduct of this litigation to some extent may have been impacted by the pandemic. I would note that there is no submission from the respondent to this effect but nevertheless, I consider it appropriate to have regard to this circumstance in the determination of this application.
The necessary preconditions for the making of an order striking out the pre-filing statement in this matter are satisfied. In the absence of any advice or information from the respondent to the contrary, I accept the applicant’s advice that respondent has not commenced proceedings in the District Court.
In addition to the authorities that the applicant has referred to, I would remark that a pre-filing statement is not intended to extend time indefinitely.[8] This matter involves events that are said to have occurred between 2008 and 2012 in accordance with what has been pleaded in the respondent’s statement of claim. The alternate date is 28 October 2010 being the deemed date of injury as found by Dr Parmegiani in 2015. These events occurred more than 11 years ago. Mediation proceedings were commenced in the WCC in 2020 and were the subject of an unsuccessful conference in June 2020. The respondent has been in possession of her WPI assessment since 2015 and had provided notice of her work injury damages claim in 2017.
[8] John Lacey Earth Moving Pty Ltd v Campbell-Willis [2007] NSWWCCPD 197, [46] per Byron AP.
I would also remark that for much of the period that these proceedings have been current, the respondent had access to her solicitors, Monaco Solicitors. Clearly, they had difficulty in both making contact with or receiving instructions from the respondent. Prior to this, the claimant had access to different solicitors who assisted her during the WCC proceedings before the Arbitrator and also filed her work injury damages claim in 2017. Since this application was filed, the Commission has also made every attempt to direct the respondent to access legal assistance and offered a conference to discuss the issues at hand. This is at odds with the assertion made that the respondent does not know where to go to access this assistance.
I would also note the respondent is aware of this application. When I listed the matter for a virtual directions hearing, the respondent was capable of quickly obtaining two medical certificates excusing her attendance. Those certificates cited “panic attacks” and “a severe mental health condition”, which I accept meant that the respondent could not attend any hearings or conferences until 6 January 2024, in accordance with the terms of one of the certificates. The certificate does not state that the respondent is incapable of supplying written submissions nor has a certificate to that effect been produced in response to the Direction that I issued.
Notwithstanding the psychiatric problems that the respondent suffers from, these proceedings involve events which are very old. The events said to found the cause of action took place more than 11 years ago. Since notifying the work injury damages claim in 2017, filing the pre-filing statement in 2020 and attending the mediation in mid-2020, the respondent has taken no action that I can see to advance these proceedings in any way at all. No excuse or explanation for this circumstance has been forthcoming. For example, the respondent has not asserted that either due to her disability or the pandemic, or a combination of both, she has been unable to advance her claim. The respondent has made no submission that she intends pursuing these proceedings. Indeed the medical certificates indicate, to the contrary, an inability to prosecute the proceedings at least until January 2024.
The respondent has been given every opportunity to be heard on this application and has not availed herself of those opportunities. No explanation has been advanced for this state of affairs although I think I can safely infer that the respondent’s mental health is an inhibitor. Notwithstanding this inference I can safely draw, I have been given no indication of any desire on the respondent’s part that she intends to diligently prosecute these proceedings. In the circumstances and weighing up the various matters I have referred to, I will make the orders striking out the respondent’s pre-filing statement.

DECISION

The respondent claimant’s pre-filing statement is struck out.

COSTS

No order as to costs.

Judge Phillips

President

6 November 2023