Tivolam Pty Ltd v Boorer
[2013] NSWWCCPD 16
•27 March 2013
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF AN APPLICATION TO STRIKE OUT A PRE-FILING STATEMENT | |||||
| CITATION: | Tivolam Pty Ltd v Boorer [2013] NSWWCCPD 16 | ||||
| APPLICANT DEFENDANT: | Tivolam Pty Ltd | ||||
| RESPONDENT CLAIMANT: | Robert Gregory Boorer | ||||
| FILE NUMBER: | 1364/13 | ||||
| DATE OF DECISION: | 27 March 2013 | ||||
| SUBJECT MATTER OF DECISION: | Application to strike out pre-filing statement under s 151DA of the Workers Compensation Act 1987 | ||||
| PRESIDENTIAL MEMBER: | President Judge Keating | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Applicant Defendant: | Sparke Helmore | |||
| Respondent Claimant: | Firths – The Compensation Lawyers | ||||
ORDERS MADE ON APPLICATION: | Pursuant to s 151DA of the Workers Compensation Act 1987, the claimant’s Pre-Filing Statement is struck out by consent. The respondent claimant to pay the applicant defendant’s costs of the Application. | ||||
BACKGROUND TO THE APPLICATION
Robert Boorer is currently 62 years old. Mr Boorer alleges that on 28 September 1990, during the course of his employment with Tivolam Pty Ltd (Tivolam), he sustained an injury to his back, left thumb and left foot.
In 1993 and 1994, Mr Boorer lodged claims in the Compensation Court of New South Wales in relation to impairment to his back, loss of use of the left foot, loss of use of the left leg at or above the knee, loss of use of the left leg at or below the knee, loss of use of his left thumb, severe bodily disfigurement and severe facial disfigurement arising out of the incident on 28 September 1990.
On 2 February 1994, the Compensation Court of New South Wales issued the following orders and awards in proceedings number 30313/93:
“1. That the respondent pay the applicant as lump sum compensation under section 66 –
1)$60,092.50 in respect of 100% loss of use of the applicant’s left foot.
2)$6,933.75 in respect of 10% loss of use of the applicant’s left leg at or above the knee.
3)$12,943.00 in respect of 20% loss of use of the applicant’s left leg below the knee.
4)$3,605.55 in respect of 15% loss of use of the applicant’s left thumb.
5)$4,000.00 in respect of severe bodily disfigurement.
6)$1,000.00 in respect of severe facial disfigurement.
2. That the respondent pay the applicant the sum of $41,425.20 in respect of pain and suffering pursuant to section 67 and in respect of any entitlement to interest on any of the above sums.
3. That the respondent pay the applicant’s costs (including one qualifying fee and fee for counsel for advice on evidence) forthwith after they have been agreed or taxed.”
On 20 September 1995, the Compensation Court of New South Wales issued the following orders and awards in matter number 33020/94:
“1. HEREBY ORDERS AND AWARDS:
1)That the respondent pay the applicant, as lump sum compensation under section 66, $7,875.00 in respect of 10% permanent impairment of the applicant’s back.
2)That the respondent pay the applicant interest on the said lump sum awarded under section 66 at the rate of 6% per annum, in the sum of $235.00.
3)That the respondent pay the applicant’s section 60 expenses up to the sum of $3,000.99 on production of accounts and receipts.
4)That the respondent pay the applicant’s costs as agreed, including qualifying fees and fee for counsel for advice on evidence.
5)That liberty be granted to apply in respect of the applicant’s claim for weekly compensation.
2. NOTES: The date of injury is agreed to be 1st February 1995.”
On 24 September 2010, Mr Boorer lodged an Application for Assessment by an Approved Medical Specialist in the Commission.
On 11 October 2010, Tivolam lodged a Response to Application for Assessment by an Approved Medical Specialist.
On 22 November 2010, Dr C Oates, an Approved Medical Specialist, certified that Mr Boorer suffered 25 per cent whole person impairment as a result of the injuries sustained on 28 September 1990. He issued a Medical Assessment Certificate to that effect.
On 15 February 2011, Mr Boorer served a Pre-Filing Statement on Tivolam.
On 19 July 2011, Tivolam served a Pre-Filing Defence on Mr Boorer.
On 27 June 2011, Mr Boorer filed an Application for Mediation of a Work Injury Damages Claim in the Commission.
On 20 July 2011, Tivolam filed a Response to the Application for Mediation.
On 21 July 2011, the Commission issued a Certificate of Mediation Outcome certifying that Tivolam declined to participate in mediation on the grounds that it wholly disputed liability in respect of the claim.
On 6 September 2010 and 18 July 2011, Tivolam’s solicitors wrote to Mr Boorer’s solicitors outlining the basis upon which Tivolam declined liability.
On 5 April 2012, Tivolam’s solicitors wrote to Mr Boorer’s solicitors seeking a response to their letter of 6 October 2011 regarding Mr Boorer’s intention to prosecute his claim. The letter of 6 October 2011 is not in evidence.
On 22 January 2013, Tivolam lodged an Application to Strike Out a Pre-Filing Statement in the Commission (the Application) seeking an order that Mr Boorer’s Pre-Filing Statement be struck out pursuant to s 151DA(4) of the Workers Compensation Act 1987 (the 1987 Act) and that Mr Boorer be ordered to pay Tivolam’s costs.
On 22 February 2013 Mr Boorer filed a Notice of Opposition to Strike Out a Pre-Filing Statement in which he consented to the Pre-Filing Statement being struck out. Mr Boorer did not consent to the costs order sought by Tivolam Pty Ltd.
In the circumstances, the claimant’s pre-filing statement is struck out, by consent.
COSTS
Tivolam seeks an order that Mr Boorer pay its costs of the application and submits that Mr Boorer’s failure to actively pursue his claim required Tivolam to file the Application. To date, Mr Boorer has taken no steps to progress his claim for work injury damages since the issuing of the certificate of mediation outcome.
Mr Boorer opposes the order sought by Tivolam in respect to the costs of the application on the basis that a review of his solicitors’ file indicates that they did not receive the letters from Tivolam’s solicitors of 6 October 2011 and 5 April 2012 which are alleged to foreshadow this application. He submits that in circumstances where he was unaware of the requests and the intention of Tivolam, it would be unfair to make a costs order against him.
In considering the circumstances in which a departure from the usual orders may be justified, McHugh J in Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 (Oshlack) said:
“The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion. In Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd, Devlin J formulated the relevant principal as follows:
‘No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct.’
‘Misconduct’ in this context means misconduct relating to the litigation, or the circumstances leading up to the litigation. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute.” (emphasis added)
Mr Boorer served his pre-filing statement on Tivolam on 15 February 2011. The Application for Mediation of a Work Injury Damages Claim was lodged in the Commission on 27 June 2011. The Commission issued a Certificate of Mediation Outcome on 21 July 2011. Since that time, there is no evidence that Mr Boorer has actively pursued his common law claim.
There is no obligation on Tivolam to advise Mr Boorer of its intention to make an application under s 151DA of the 1987 Act before doing so. Given that no steps had been taken by Mr Boorer since July 2011, when the mediation failed, Tivolam was justified in bringing this application whether it foreshadowed it in advance or not. In any event if there was a failure to warn the plaintiff that the application would be lodged, that does not amount to conduct of the kind referred to in Oshlack, sufficient to justify a departure from the usual costs order.
Given Mr Boorer’s consent to the application, it would appear that even if there had been prior warning of an intention to pursue this application, the outcome would have been no different, in that Mr Boorer has clearly decided to abandon his common law action.
I consider that there is no justification to depart from the usual order as to costs in this matter. Therefore, costs will follow the event and there will be an order that the respondent claimant, Mr Boorer, pay the applicant defendant’s costs of the Application.
ORDERS MADE ON APPLICATION
Pursuant to s 151DA of the Workers Compensation Act 1987, the claimant’s Pre-Filing Statement is struck out by consent.
The respondent claimant to pay the applicant defendant’s costs of the Application.
Judge Keating
President
27 March 2013
I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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