Workers Compensation Nominal Insurer (incorrectly named as Concut (NSW) Pty Limited, Deregistered) v Dures - [2021] NSWWCCPD 9

DETERMINATION OF AN APPLICATION TO STRIKE OUT A PRE-FILING STATEMENT
CITATION:	Workers Compensation Nominal Insurer (incorrectly named as Concut (NSW) Pty Limited, Deregistered) v Dures [2021] NSWWCCPD 9
APPLICANT DEFENDANT:	Workers Compensation Nominal Insurer (incorrectly named as Concut (NSW) Pty Limited, Deregistered)
RESPONDENT CLAIMANT:	Aaron Dures
FILE NUMBER:	5024/20
DATE OF DECISION:	10 February 2021
SUBJECT MATTER OF DECISION:	Application to Strike Out a Pre-Filing Statement; s 151DA of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	President Judge Phillips
HEARING:	On the papers
REPRESENTATION:	Applicant Defendant:	Ms E Blackman, solicitor Rankin Ellison Lawyers
Respondent Claimant:	Mr S Meigan, solicitor Taylor & Scott Lawyers
ORDERS MADE ON APPLICATION:	1. The application to Strike Out a Pre-Filing Statement is dismissed. 2. No order as to costs.

INTRODUCTION

This matter concerns an application filed by the applicant defendant employer seeking an order pursuant to s 151DA of the Workers Compensation Act 1987 (the 1987 Act) that the respondent claimant worker’s pre-filing statement be struck out. For the following reasons, the application is unsuccessful.

BACKGROUND

Mr Aaron Dures (the respondent claimant) was employed by Concut (NSW) Pty Ltd as a concrete cutter.
Mr Dures alleges that on 7 June 2002, while working on a construction site at a crane depot, he was drilling holes into counter weights which required him to continuously jump up and down off the counter weights throughout the day. He says that over the course of the day, he noticed pain in his back which increased by the end of the day.[1] He claimed injury to his back and also for sleep apnoea.
[1] Notice of Claim dated 14 May 2018, Application to Strike Out a Pre-Filing Statement (the Application), p 5.
Mr Dures relied upon a report of Professor Iven Young dated 28 November 2017 and complying agreement entered into on 3 April 2018[2] in support of his claim for work injury damages dated 14 May 2018.[3]
[2] The Application, p 34.
[3] The Application, p 4.
The complying agreement certified Mr Dures as having a total of 21% whole person impairment (WPI), which was comprised of 16% WPI with respect to injury to the lumbar spine and 6% WPI “with respect to sleep apnoea condition”. The particulars of the agreement provided for the payment of $30,000 lump sum compensation pursuant to s 66 of the 1987 Act, less previous payment of $18,500 for 14% WPI with respect to injury for the lumbar spine.[4]
[4] Complying Agreement, the Application, p 35.
On 25 September 2019, Mr Dures served on the applicant defendant a Pre-Filing Statement dated 25 September 2019.[5]
[5] The Application, p 6.
On 5 November 2019, the applicant defendant served a Pre-Filing Defence.
On 9 December 2019,[6] the parties attended a mediation hearing. On 10 December 2019, Mediator Callaway issued a Certificate of Mediation Outcome, certifying that the parties failed to resolve the dispute and reach a settlement.
[6] I note the Certificate of Mediation Outcome lists the mediation as occurring on 6 November 2019 which appears to be incorrect.
On 1 June 2020, the applicant defendant’s solicitors wrote to Mr Dures’ solicitors noting that since the mediation, they had not heard from his legal representatives. The letter provided that if the applicant defendant’s solicitors did not hear from the respondent claimant within 14 days, the applicant defendant’s solicitors were instructed to file an Application to Strike Out a Pre-Filing Statement in accordance with s 151DA(3) of the 1987 Act.
On 31 August 2020, the applicant defendant lodged an Application to Strike Out a Pre-Filing Statement. This was rejected due to procedural non-compliance. A subsequent complying Application to Strike Out a Pre-Filing Statement (the Application) was lodged on 3 September 2020.
On 3 September 2020, the Registrar issued a Direction setting down a timetable for the filing and service of the Application, Notice of Opposition and any submissions in reply. Amongst other Directions made, the respondent claimant was directed to lodge with the Commission a Notice of Opposition (Form 11F) (the Notice of Opposition) by 15 October 2020.
On 23 September 2020, the applicant defendant lodged a Certificate of Service, certifying the Application was served on the respondent claimant’s solicitor, Mr Simon Meigan by email on 3 September 2020.
I note that in mediation proceedings before the Commission in 2019 (matter number 5797/19) the respondent claimant was represented by Mr Simon Meigan of Taylor & Scott Lawyers.
The respondent claimant did not comply with the Direction of 3 September 2020 and did not lodge a Notice of Opposition by 15 October 2020.
As the Commission had not received the Notice of Opposition, on 16 October 2020, the Commission emailed Mr Meigan, both to his direct email and carbon copied to Taylor & Scott Lawyers’ general email address, requesting Mr Meigan to urgently advise whether he continued to represent the respondent claimant and whether he intended to file a Notice of Opposition. It was noted that the respondent claimant would need to make an application for an extension of time. No response was received.
On 20 October 2020, the Registrar issued a Direction, directing Taylor & Scott Lawyers to advise the Commission by 27 October 2020 whether they continued to represent the respondent claimant and whether the respondent claimant intended to file a Notice of Opposition.
The Direction of 20 October 2020 was not complied with and no response was received. As such, on 29 October 2020, the Commission called Taylor & Scott Lawyers and left a telephone message for Mr Meigan’s secretary, Lauren, to return the Commission’s call. This phone call was not returned.
On 3 November 2020, Ms Taylor from the Commission again called Taylor & Scott Lawyers, speaking to Lauren, Mr Meigan’s secretary. The Commission’s file indicates that Lauren advised Ms Taylor that the respondent claimant was still their client and advised that Mr Meigan was on leave, returning on 6 November 2020, and she would ask Mr Meigan to return the Commission’s call. The Commission’s call was not returned.
On 9 November 2020, Ms Taylor from the Commission again called Taylor & Scott Lawyers. Taylor & Scott Lawyers advised that Mr Meigan was currently in a hearing before the Commission in another matter. Accordingly, a message was left for Mr Meigan to return the Commission’s call.
On 10 November 2020, Mr Meigan returned the Commission’s call. He advised orally he had a teleconference scheduled with his client for Monday 16 November and would be in a position to respond after that. By way of confirmatory email (to the Commission and the applicant defendant’s solicitors) sent shortly after the telephone call, Mr Meigan advised:
“I refer to my telephone discussion with just now [sic].
I confirm I am conferring with Mr Dures on Monday 16 November, I will then be in a position to respond.”
On 19 November 2020, as there had been no further correspondence from the respondent claimant’s solicitor, the Registrar issued a further Direction directing the respondent claimant to advise the Commission by 26 November 2020, whether he intended to file a Notice of Opposition.
On 24 November 2020, Mr Dures’ solicitor, Mr Meigan, sent a letter to the Commission, in which he advised that he continues to act for Mr Dures and also advised that on 24 November 2020, he filed a Statement of Claim in the District Court in relation to these proceedings.
Mr Meigan undertook to shortly file a Notice of Opposition to the Application to Strike Out a Pre-Filing Statement. On 1 December 2020, the Commission sent an email to Mr Dures’ solicitors following up the Notice of Opposition, as it had not been lodged.
There was no response to the Commission’s inquiry sent on 1 December 2020. On 4 December 2020, the Registrar issued a further Direction noting Mr Meigan’s undertaking to lodge a Notice of Opposition and the email sent from the Commission on 1 December 2020. The respondent claimant was directed to make any application for an extension of time to file its proposed Notice of Opposition, and lodge with the Commission and serve on the applicant defendant any proposed Notice of Opposition by 4.30 pm on 8 December 2020. The Direction also provided for the applicant defendant to lodge submissions in response to any application for an extension of time, as well as to lodge submissions in response to any proposed Notice of Opposition by 18 December 2020.
Mr Dures did not lodge a Notice of Opposition by 8 December 2020.
On 9 December 2020, Mr Dures sought to lodge a Notice of Opposition. Mr Dures did not make an application for an extension of time to lodge the Notice of Opposition.
Mr Dures submits a Statement of Claim has been lodged in the District Court and submits he has acted to continue with his work injury damages claim. The author of the document also submits that the respondent claimant is not in possession of the applicant defendant’s submissions made in the Application to Strike Out a Pre-Filing Statement. The author also complains that not all of the documents were served on him. It is of assistance to set out his submission in relation to seeking to lodge further submissions:
“The claimant is at a slight disadvantage in relation to formulating his submissions as we are not in possession of the insurer's submissions. At the time of drafting these submissions, the claimant has now reviewed the email from the insurer’s representatives wherein the application was served upon our office on 3 September 2020. An index to the insurer’s application to strike out the Pre-filing Statement was included however, the covering email serving the application advises ‘We have not enclosed a copy of the annexures as they are already in your possession. Please advise us if you require a further copy.’ It is correct that the claimant is in possession of all of the documents attached to the insurer's application, except for the insurer’s submissions. We are writing to the insurer seeking a further copy of their submissions and would seek an opportunity to further respond to the submissions if necessary within 7 days of receipt of the insurer’s submissions.”
I note this was the first occasion, despite being served three months prior, that Mr Dures or his legal representatives raised this issue.
On 10 December 2020, the Registrar issued a further Direction[7] revoking the Direction of 4 December 2020 and directed the respondent claimant make any application for leave to lodge a Notice of Opposition out of time, and to also lodge any such proposed Notice of Opposition by 17 December 2020. The Commission provided a copy of the applicant defendant’s submissions with the Direction to Mr Meigan and the applicant defendant’s solicitor.
[7] I note this document inadvertently was dated 4 December 2020 but was sent by email on 10 December 2020.
The applicant defendant was given leave to lodge submissions in response to the respondent claimant’s application for an extension of time and to lodge any submissions in reply to the proposed Notice of Opposition by 28 January 2021.
I note that the respondent claimant did not respond to this Direction and has not lodged anything in reply since. I also observe the applicant defendant has not lodged anything further and neither party has contacted the Commission since.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Direction Number 1, the documents that are before me, and the submissions by the parties that the matter can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

LEGISLATION

Section 151A of the 1987 Act provides:
“151A   Effect of recovery of damages on compensation
(1)     If a person recovers damages in respect of an injury from the employer liable to pay compensation under this Act then (except to the extent that subsection (2), (3), (4) or (5) covers the case)—
(a)the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid), and
(b)the amount of any weekly payments of compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation, and
(c)the person ceases to be entitled to participate in any injury management program provided for under this Act or the 1998 Act.
(2)     If damages in respect of an injury are recovered from the employer liable to pay compensation under this Act, pursuant to a cause of action that survives for the benefit of the estate of a deceased worker under the Law Reform (Miscellaneous Provisions) Act 1944, the following amounts of compensation are to be repaid out of the estate of the deceased worker to the person who paid the compensation—
(a)the amount of any weekly payments of compensation already paid in respect of the injury concerned,
(b)the amount of any permanent impairment compensation and pain and suffering compensation already paid in respect of the injury concerned.
(3)     If damages are recovered in an action under the Compensation to Relatives Act 1897 in respect of the death of a worker from the employer liable to pay compensation under this Act in respect of the death—
(a)the amount of any compensation under Division 1 of Part 3 paid in respect of the death is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation, and
(b)a person recovering those damages ceases to be entitled to any further compensation under this Act in respect of the death of the worker.
(4) If a person recovers motor accident damages (other than damages to which Part 4 of the Motor Accident Injuries Act 2017 applies) from the employer liable to pay compensation under this Act—
(a)the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid), and
(b)the amount of any compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation.
(5) If a person recovers damages to which Part 4 of the Motor Accident Injuries Act 2017 applies from the employer liable to pay compensation under this Act—
(a)the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid), and
(b)the amount of any of the following compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation—
(i)weekly payments of compensation,
(ii)permanent impairment compensation and pain and suffering compensation, but limited to the amount of any damages recovered for non-economic loss.”
Section 151DA of the 1987 Act provides:
“151DA Time not to run for commencement of proceedings in certain cases
(1)     Time does not run for the purposes of section 151D:
(a1)while the determination of the claim concerned is delayed as permitted by section 281 of the 1998 Act, but not including delay beyond 2 months after the claimant has provided all relevant particulars about the claim as required by section 281(2)(b) of that Act, or
Note—
Delay in determining a claim beyond 2 months is only permitted on the basis that degree of permanent impairment is not fully ascertainable and the insurer has notified the claimant of this. In such a case, paragraph (a) of this subsection can apply (if a dispute about whether degree of permanent impairment is fully ascertainable is the subject of medical assessment) to further prevent time running for the purposes of section 151D.
(a)    while a medical dispute as to whether the degree of permanent impairment of the injured worker is at least 15%, or whether the degree of permanent impairment of the injured worker is fully ascertainable, is the subject of a referral for determination by the Commission or a referral for assessment under Part 7 of Chapter 7 of the 1998 Act (including any further assessment under section 329 of that Act), or
(a2)during the period of 1 month after an offer of settlement is made to the claimant pursuant to the determination of the claim as and when required by the 1998 Act, or
(a3)while an assessment under Part 7 of Chapter 7 of the 1998 Act in respect of a medical dispute referred to in paragraph (a) is the subject of a pending appeal under section 327 of the 1998 Act, or
(b)while a pre-filing statement served in accordance with section 315 of the 1998 Act in respect of the claim concerned remains current.
(2)     A pre-filing statement remains current from the time it is served until it is struck out under this section on the application of the person (the defendant) on whom it was served or it is withdrawn by the person who served it, whichever happens first.
(3)     The defendant may apply to the President to have the pre-filing statement struck out by order of the President. Such an application may not be made until at least 6 months have elapsed after the defendant served on the claimant a defence to the claim in accordance with section 316 of the 1998 Act.
(4)     The President may order that a pre-filing statement be struck out but must not do so if satisfied that the degree of permanent impairment of the injured worker is not yet fully ascertainable and the matter is the subject of a referral under Part 7 of Chapter 7 of the 1998 Act for assessment of the degree of permanent impairment of the injured worker.
(5)     A medical dispute is considered to be the subject of a referral for assessment under Part 7 of Chapter 7 of the 1998 Act even if the approved medical specialist has declined to make an assessment of the degree of permanent impairment of the injured worker until satisfied that the degree of permanent impairment is fully ascertainable.
(6)     The President may delegate to a Deputy President any function of the President under this section (except this power of delegation), but only if the President is satisfied that the delegation is necessary to avoid a conflict of interest or the appearance of bias.”

SUBMISSIONS

Applicant defendant’s submissions

The applicant defendant refers to Mr Dures’ allegation of injury on 7 June 2002. It records Mr Dures served a claim for work injury damages on 14 May 2018, which was disputed by the applicant defendant in a s 74 Notice dated 13 July 2018. The applicant defendant notes the Pre-Filing Statement was served on 25 September 2019, and a Pre-Filing Defence was served on 5 November 2019.
The matter proceeded to mediation before Mediator Callaway on 9 December 2019. The matter did not settle at mediation and a Certificate of Mediation was issued on 10 December 2019.
The applicant defendant says its solicitors, Rankin Ellison Lawyers, wrote to Mr Dures’ solicitors, Taylor & Scott Lawyers, on 1 June 2020, requesting a response and if nothing further was received within 14 days, the applicant defendant would proceed with the present application. The applicant defendant submits that no response was received.

The applicant defendant seeks the Pre-Filing Statement be struck out pursuant to s 151DA(3) of the 1987 Act. It submits that approximately 8 months have elapsed since it served its Pre-Filing Defence in accordance with s 316 of the 1998 Act. It submits that the requirements in s 151DA(3) have been met.
The applicant defendant argues that there is no evidence that Mr Dures has taken any steps to progress his claim since the mediation on 9 December 2019.
The applicant defendant quotes the following passage from Pasminco Cockle Creek Smelter Pty Ltd v Gardner:[8]
“It is clearly not the intention of the legislature that the time limit within which a claimant may bring work injury damages proceedings should be extended indefinitely by the operation of these provisions. Claimants must actively pursue the required steps throughout this pre-litigation process. The pre-filing statement should remain current for the purpose of completing those required steps.”
[8] [2006] NSWWCCPD 108 (Pasminco), [15].
The applicant defendant submits Mr Dures has had ample time to complete the pre-litigation phase of the proceedings and file a Statement of Claim. The applicant defendant adds “see also Luke v Frank William McCarthy and Barbara Annette McCarthy t/as FW & BA McCarthy Transport”.[9] It does not expand on this or refer to a particular part of the decision.
[9] [2008] NSWWCCPD 123.
The applicant defendant contends that it has been prejudiced by Mr Dures’ substantial delay in making this claim and continues to be prejudiced by the operation of s 151DA(1)(b) which stops time for the purposes of s 151D while the Pre-Filing Statement is current, relying upon Workers Compensation Nominal Insurer v England.[10]
[10] [2011] NSWWCCPD 41.

Respondent claimant’s submissions

As noted above, the respondent claimant has not included an application for leave to rely on the Notice of Opposition lodged, despite being directed to do so and having had several chances. In view of the protracted history of these proceedings and to determine this application in a timely fashion, in the interests of justice, I grant leave of my own motion to the respondent claimant to rely upon his Notice of Opposition lodged on 9 December 2020 pursuant to r 3.2 of the Workers Compensation Commission Rules 2011.
In the Notice of Opposition, Mr Dures notes he was injured in the course of his employment on 7 June 2002. He says he reached the relevant threshold to pursue a work injury damages claim on 20 December 2017. Mr Dures says he served his Pre-Filing Statement on 25 September 2019; he filed an application for mediation on 7 November 2019, and the mediation proceeded on 7 December 2019.
Mr Dures submits he has now filed a Statement of Claim in the District Court on 24 November 2020. He argues that he has therefore now acted to continue with his work injury damages proceedings in the Court system.
The balance of Mr Dures’ submissions following this are quoted above at [27] concerning the applicant defendant’s submissions.

Relief sought

The applicant defendant seeks that the Pre-Filing Statement be struck out pursuant to s 151DA(3) of the 1987 Act and no order as to costs. Mr Dures’ submissions do not specify the relief he seeks. It is inferred from the Notice of Opposition that he seeks that the Application be dismissed.

DISCUSSION

A claim for work injury damages must be brought within three years after the date of injury, except with leave of the court.[11] However, time may be suspended for one of the reasons set out in s 151DA of the 1987 Act. Section 151DA(1)(b) of the 1987 Act suspends time for the purposes of s 151D while a pre-filing statement in respect of the claim remains current. That is, until the Pre-Filing Statement is struck out on the application of the applicant defendant or withdrawn by Mr Dures.
[11] Section 151D of the 1987 Act.
An employer may apply to have the pre-filing statement struck out by order, once six months have elapsed after it served the pre-filing defence (s 151DA(3) of the 1987 Act). A pre-filing statement may be struck out by order if the degree of permanent impairment is fully ascertainable (s 151DA(4) of the 1987 Act).
There are no impediments presented by s 151DA(3) of the 1987 Act to the Application being determined at this time. More than six months have elapsed after the Workers Compensation Nominal Insurer served the pre-filing defence.
There are sound policy reasons for the inclusion of s 151DA(3) in the 1987 Act. The provision ensures that the parties have sufficient time to finalise the pre-litigation phase of the proceedings.[12] It also ensures that there is a degree of certainty to the process and enables the parties to explore resolution and/or mediation of the claim before embarking on litigation.
[12] Pasminco.
The applicant defendant unhelpfully has not made submissions specifically addressing s 151DA(4) of the 1987 Act. The respondent’s submissions do not refer to s 151DA(4) and do not provide assistance. I note that in the Application to Strike Out a Pre-Filing Statement[13] there is a complying agreement dated 3 April 2018 in respect of 21% whole person impairment. This is suggestive that there is no impediment in respect of s 151DA(4). Further, I note that the respondent claimant has had the opportunity to raise this as an issue and has not done so. Given this has not been put into contention, I am of the view that there are no impediments presented by s 151DA(4) of the 1987 Act.
[13] The Application, pp 34–36.
In the Notice of Opposition, Mr Dures submits that on 24 November 2020, he filed a Statement of Claim in the District Court in relation to these proceedings. As noted at [31] above, the applicant defendant has not lodged any submissions in reply, and consequently, has not advanced submissions contesting whether or not a Statement of Claim has been lodged.
It is apparent from this that Mr Dures, since the lodgment of the Application to Strike Out a Pre-Filing Statement, has taken further steps to advance his claim, notably the commencement of work injury damages proceedings in the District Court. In view of the steps taken by Mr Dures and the lodgment of a Statement of Claim in the District Court, I am not persuaded to exercise my discretion to Strike Out the Pre-Filing Statement. I do not think it is appropriate to do so in view of the Statement of Claim having been filed in the District Court.

ANOTHER MATTER

Whilst not part of my reasons in coming to this decision, there is one observation that I wish to make in relation to the history of these proceedings. The chronology listed above demonstrates the respondent claimant, and particularly his solicitors, have failed to comply with numerous directions issued by the Registrar’s delegate throughout the course of these proceedings. Further, the respondent claimant’s solicitors have failed to respond to many enquiries from the Commission in this matter, made both by telephone and email. The Commission expects parties and their legal representatives to comply with Directions issued, and to promptly respond to enquiries made by the Commission.

DECISION

The application to Strike Out a Pre-Filing Statement is dismissed.
No order as to costs.

Judge Phillips
President

10 February 2021