Paper Coaters Pty Limited v Jessop [2009] NSWCA 1 (30 January 2009)

Last Updated: 10 February 2009

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Paper Coaters Pty Limited v Jessop [2009] NSWCA 1


FILE NUMBER(S):
40833/07

HEARING DATE(S):
27/11/08

JUDGMENT DATE:
30 January 2009

PARTIES:
Paper Coaters Pty Limited (Appellant)
Anthony Jessop (Respondent)


JUDGMENT OF:
Hodgson JA Bell JA Gyles AJA

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2018/07

LOWER COURT JUDICIAL OFFICER:
Judicial Registrar McDonald

LOWER COURT DATE OF DECISION:
6/11/07


COUNSEL:
J Jobson (Appellant)
SG Campbell SC / A Reoch (Respondent)

SOLICITORS:
McCulloch & Buggy (Appellant)
Ron Kramer Associates (Respondent)

CATCHWORDS:
LIMITATION OF ACTIONS – effect of service of pre-filing statement – claim for work injury damages – suspension of time - resumption of Workers Compensation Act 1987 (NSW) s 151DA
PRACTICE AND PROCEDURE – service of pre-filing statement – was a pre-filing statement defective or incomplete – whether claimant can file successive pre-filing statements – withdrawal of pre-filing statement – Workplace Injury Management and Workers Compensation Act 1998 (NSW) ss 315(1), 316, 317, 318
WORDS & PHRASES – “defective pre-filing statement”

LEGISLATION CITED:
Evidence Act 1995 (NSW)
Interim Workers Compensation Commission Rules 2001
Workers Compensation Act 1987 (NSW)
Workers Compensation Commission Rules 2003
Workers Compensation Commission Rules 2006
Workplace Injury Management and Workers Compensation Act 1998 (NSW)

CATEGORY:
Principal judgment

CASES CITED:
Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364
R v Welsh (1996) 90 A Crim R 364
Strasburger Enterprises Pty Ltd v Serna [2008] NSWCA 354

TEXTS CITED:


DECISION:
1. Grant leave to appeal.
2. Direct that the amended notice of appeal be treated as filed pursuant to leave.
3. Allow the appeal and quash the orders made by the Judicial Registrar on 6 November 2007 striking out paragraphs 2 and 3 of the defence filed on 5 July 2007.
4. Dismiss the respondent’s notice of motion filed in the District Court on 15 August 2007.
5. The respondent is to pay the appellant’s costs of the appeal and in the court below and with respect to the appeal to have a certificate under the Suitors Fund Act 1951, if otherwise qualified.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40833/2007

DC 2018/2007

HODGSON JA

BELL JA

GYLES AJA

Friday 30 January 2009

Paper Coaters Pty Ltd v Jessop

Judgment

1 HODGSON JA: I agree with the orders proposed by Bell JA and, subject to what I say below, I agree substantially with her reasons.

2 The question of whether there has been service of a pre-filing statement, and if so on what date it was served, can have significant consequences under the relevant legislation (which I will refer to, as does Bell JA, as the 1987 Act and the 1998 Act).

3 Under s151DA of the 1987 Act, the service of a pre-filing statement stops time running for limitation purposes while it remains current (and it remains current from the time it is served until it is struck out or withdrawn).

4 Under s316 and s318(1)(c) of the 1998 Act, the service of a pre-filing statement may mean the a defendant is precluded from disputing liability for a claim in court proceedings, where the defendant does not respond to it within 42 days.

5 Under s318(1)(a) and (d) of the 1998 Act, the service of a pre-filing statement may limit the claims that a claimant can make and the evidence that a claimant may lead in court proceedings.

6 The provisions of the 1998 Act are such that there can be ambiguity as to whether the service of a document or documents by a claimant on a defendant does or does not amount to the service of a pre-filing statement. Section 315 requires that the pre-filing statement must set out such particulars of the claim and the evidence that the claimant will rely on as the Rules require, and the Rules relevantly require that there must be served “all information and documents upon which the claimant proposes to rely”. However, s317(1) makes it clear that there may be service of a pre-filing statement, notwithstanding that it is “defective”; while s317(4) makes it clear that a pre-filing statement may be constituted by documents furnished at different times, in which case it is not served until the last of those documents is served.

7 Thus, there may a question whether a document served by a claimant which complies with some but not all of the requirements for a pre-filing statement is a defective pre-filing statement, or merely the first instalment of a pre-filing statement which is to be constituted by that document and further documents to be served later. In some cases it will be to the advantage of the claimant to assert that the document is a defective pre-filing statement, for example because it stops time running or because the defendant did not respond to it within 42 days; while in other cases it will be to the advantage of the claimant to assert that the document together with later-served documents constitutes the pre-filing statement, for example because the claimant wishes to rely on a wider claim or on evidence disclosed in the later documents.

8 In my opinion, where there is ambiguity as to whether the service of a document is the service of a pre-filing statement, on the one hand, or the service of the first of a number of documents that will together constitute a pre-filing statement, on the other hand, there will be a question of law as to whether the document could constitute a pre-filing statement (albeit a defective one); and if it could do so, there will be a question of fact (or mixed fact and law) as to what is communicated to the defendant by the service of the document in the circumstances in which it was served. If what is communicated is that this document itself without more is the pre-filing statement, then service of it will amount to service of a pre-filing statement, time will stop running, and the claimant will need leave to rely on any wider claim or to lead any evidence not disclosed in it. If what is communicated is that the document is only the first of a number of documents that will together constitute a pre-filing statement, then there will not be service of a pre-filing statement until more documents are served and the claimant has communicated to the defendant that the pre-filing statement is complete: only then will time stop running and the defendant be required to respond. Where it is the claimant that is seeking to assert that the service of the document either was or was not service of a pre-filing statement, the onus of proof of this question of fact (or mixed fact and law) is on the claimant.

9 In Strasburger Enterprises Pty Ltd v Serna [2008] NSWCA 354, there was no evidence whatsoever set out or disclosed in a purported pre-filing statement or served with it. Service of the document did not constitute service of a pre-filing statement, either (1) because the complete absence of evidence meant the document could not constitute a pre-filing statement (albeit a defective one), or else (2) because the claimant did not discharge his onus of proving that he communicated to the defendant that the document really was itself on its own a pre-filing statement, in circumstances where, if it was such a statement, the claimant would be unable to lead any evidence in support of his claim without leave (which could not be obtained unless he proved that the evidence was not reasonably available when the document was served: s318(2)(a) of the 1998 Act).

10 In the present case, the document served on the appellant on 1 June 2006 did disclose and/or enclose some evidence and could as a matter of law constitute a pre-filing statement. The appellant treated it as such, by responding as required by s316 of the 1998 Act, and the respondent proceeded to treat the service of his document and the appellant’s response as amounting to the service of a pre-filing statement within s315 and a defendant’s response within s316 by referring his claim for mediation under s318A. To the extent that the respondent’s assertion that the defendant is now precluded from disputing liability depends on his proving that he communicated to the appellant that a pre-filing statement was not being served on 1 June (that is, that what was served was only the first of a number of documents that would together constitute a pre-filing statement), that onus of proof was not discharged.

11 Mr Campbell SC for the respondent submitted that in any event it was open to a claimant to serve successive pre-filing statements, and it was incumbent on defendants to respond to each of them. In my opinion, while one pre-filing statement is current (within the meaning of s151DA of the 1987 Act), a claimant cannot validly serve another pre-filing statement. The provisions of s315, s316, s317, s318 and s318A of the1998 Act set up an elaborate edifice based on the existence of a single identifiable pre-filing statement; and if it were possible to serve successive statements there would be complexities and duplications wholly inconsistent with the evident purpose of the legislation of encouraging early identification of issues and early resolution of matters without court proceedings. It would also introduce significant unfairness in favour of claimants: defendants would be unable without leave to widen their defences or their evidence beyond that served in their response, while claimants could widen their claims and their evidence simply by serving additional pre-filing statements.

12 It may be possible for a claimant to withdraw a pre-filing statement as contemplated by s151DA of the 1987 Act, and then to serve another pre-filing statement. There would then be a question as to whether the claimant would still have the benefit of the suspension of the running of time obtained by the service of the original pre-filing statement: I am inclined to think that the suspension only applies in relation to proceedings based on the pre-filing statement that gave rise to the suspension, but it is not necessary to decide that in this case.

13 I agree with Bell JA that it is necessary that a claimant communicate to the defendant that a pre-filing statement is withdrawn, if this is to happen. If the claimant asserts that a pre-filing statement has been withdrawn, the onus of proof is on the claimant to prove that this has been communicated to the defendant. It may be possible that a withdrawal be communicated by implication rather than explicitly; but in my opinion, the respondent has not proved that this happened in this case. Where there has been service of a pre-filing statement, a defendant’s response, and a mediation, one would expect a clear indication that this is all to be abandoned and an entirely new process commenced. The mere service of a purported further pre-filing statement was not shown to be sufficient to communicate this in the circumstances of the present case.

14 The orders proposed by Bell JA should be made.

15 BELL JA: On 31 July 2003 the respondent, Anthony Jessop, sustained an injury in the course of his employment with the appellant, Paper Coaters Pty Limited. He commenced proceedings in the District Court claiming damages arising out of his injury which he alleged was caused by the negligence and/or breach of statutory duty of the appellant. Under the scheme of the Workers Compensation Act 1987 (NSW) (“the 1987 Act”) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“the 1998 Act”) (collectively, “the Workers Compensation Acts”) the claim is for work injury damages. The respondent’s entitlement to bring the claim under the common law is preserved by s 151 of the 1987 Act, subject to the procedural requirements of Pt 6 of Ch 7 of the 1998 Act: see, generally, Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364. References to statutory provisions in these reasons are to the 1998 Act unless otherwise stated.

16 Part 6 of the 1998 Act deals with court proceedings for work injury damages and Div 3 contains a regime for the service of pre-filing statements and defences thereto. A claimant is obliged to refer his or her claim for mediation before the commencement of court proceedings. The pre-filing statement and the pre-filing defence are required to set out particulars of the claim or defence and the evidence that is to be relied on. Neither party may lead evidence in subsequent court proceedings that was not disclosed in the pre-filing statement or defence without leave. The evident purpose of the scheme is the encouragement of the early settlement of claims without recourse to proceedings in a court.

17 Strict time limits are imposed on defendants with respect to the service of the response to the pre-filing statement. A defendant who fails to respond by serving a defence within 42 days of the service of the pre-filing statement is precluded from filing a defence disputing liability in subsequent court proceedings: s 318(1)(c).

18 Those paragraphs of the appellant’s defence by which it disputes liability in the District Court proceedings have been struck out under s 318(1)(c). It is this determination that is the subject of the appeal.

19 On 1 June 2006 the respondent’s solicitors served a pre-filing statement on the appellant. The pre-filing statement included copies of medical reports. It identified a number of documents, including the respondent’s statement, which were “to be provided”. The appellant responded to the service of the pre-filing statement by serving a pre-filing statement for the defendant (Exhibit “A”). In pars 2 and 3 of the draft defence that formed part of the statement, it denied liability for the respondent’s injury. Exhibit “A” is undated but it was not in issue that it was served within 42 days of the service of the pre-filing statement. The respondent’s claim was referred for mediation. The mediation, which took place on 12 September 2006, was unsuccessful. The pre-conditions for the commencement of court proceedings for the recovery of work injury damages were satisfied. In the event, court proceedings were not then commenced.

20 On 23 March 2007 the respondent’s solicitors served a document titled “second pre-filing statement” on the appellant. The draft statement of claim that was attached to it claimed damages arising out of the same injury and on the same particulars of negligence (and additional particulars) as the draft pleading that was attached to the earlier pre-filing statement. The appellant did not respond to the second pre-filing statement by serving a further pre-filing defence under s 316(1) within 42 days.

21 The respondent’s statement of claim was filed in the District Court on 23 May 2007. On 5 July 2007 the appellant filed a defence, which was in the same terms as the draft defence in Exhibit “A”. The respondent filed a notice of motion claiming an order striking out those paragraphs of the defence by which the appellant denied negligence or breach of statutory duty, on the basis that no pre-filing defence had been served. The motion came before Judicial Registrar McDonald, who held that the first pre-filing statement was defective and that the second pre-filing statement complied with Pt 6. Since the appellant had not responded to the second pre-filing statement within 42 days the Judicial Registrar held that it was precluded from filing a defence disputing liability.

22 By amended notice of appeal the appellant seeks leave to appeal against the orders of the Judicial Registrar. The amended notice challenges the determination on 9 grounds, which involve substantial overlap. In the written submissions filed on the appellant's behalf the challenge was distilled into the following three questions:

(a) Whether Section 315 of the Act allows multiple pre-filing statements to be served so as to defeat an earlier valid pre-filing defence.

(b) Whether the Judicial Registrar acted Ultra Vires her powers.

(c) Whether a pre-filing defence served within time protects a defendant from any subsequent pre-filing statement.

23 Mr S G Campbell SC, who with Mr A Reoch appeared for the respondent, did not oppose the grant of leave. It is appropriate that leave be granted.

24 The 1987 Act is to be construed as if it formed part of the 1998 Act: s 2A(2) of the 1987 Act. In the event of an inconsistency between the two Acts, the 1998 Act prevails to the extent of the inconsistency: s 2A(3) of the 1987 Act. It is necessary to refer to a number of provisions of the Workers Compensation Acts in order to understand the scheme.

25 Section 151D of the 1987 Act provides that a person to whom compensation is payable under the 1987 Act is not entitled to commence court proceedings for damages in respect of the injury against the employer liable to pay that compensation more than three years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken.

26 Relevantly, s 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 two 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 s 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 the 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.

27 The procedural provisions dealing with claims for work injury damages are found in Ch 7 of the 1998 Act. They include the requirement for prompt notice of the injury to the employer: s 254(1). The person on whom the claim for work injury damages is made is required to determine the claim by accepting liability and making a reasonable offer of settlement to the claimant or disputing liability: s 281(1). A claim must be so determined within one month after the degree of permanent impairment first becomes fully ascertainable or within two months after the claimant has provided to the insurer all relevant particulars about the claim, whichever is the later. The relevant particulars about a claim are full details of the matters set out in s 282(1)(a) – (g) sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement on the claim.

28 The provisions of Div 3 of Pt 6 with which this appeal is principally concerned are set out in full below:

315 Requirement for pre-filing statement before commencing court proceedings

(1) Before a claimant can commence court proceedings for the recovery of work injury damages, the claimant must serve on the defendant a pre-filing statement setting out such particulars of the claim and the evidence that the claimant will rely on to establish or in support of the claim as the Rules may require.

Note. Section 314 prevents a pre-filing statement being served if there is a dispute as to whether the degree of permanent impairment is sufficient for an award of damages.

(2) The pre-filing statement cannot be served unless:

(a) the person on whom the claim is made wholly disputes liability for the claim, or

(b) the person on whom the claim is made has made an offer of settlement to the claimant pursuant to the determination of the claim as and when required by section 281 and 1 month has elapsed since the offer was made, or

(c) the person on whom the claim is made has failed to determine the claim as and when required by section 281.

Note. The determination of a claim in accordance with section 281 requires the making of a reasonable offer of settlement (if liability is wholly or partly accepted). Failure to make a reasonable offer of settlement constitutes a failure to determine the claim. Section 74 requires notice of a dispute as to liability to be given.

316 Defendant must respond to pre-filing statement

(1) The defendant must, within 28 days after the pre-filing statement has been served on the defendant, respond to the pre-filing statement by:

(a) accepting or denying liability (wholly or in part), and

(b) (to the extent, if any, that the defendant does not accept liability) serving on the claimant a defence to the claim setting out such particulars of the defence and evidence that the defendant will rely on to defend the claim as the Rules may require.

Note. A defence can be filed after 28 days but after 28 days the claimant can refer the claim to mediation under Division 4.

(2) If the defendant fails to respond to the pre-filing statement as required by this section within 42 days after it is served on the defendant, the claimant can commence court proceedings for the recovery of work injury damages.

Note. If the defendant fails to respond within 42 days, the defendant is prevented from filing a defence (see section 318) and the claimant can proceed to obtain summary judgment on the question of liability. If the defendant responds to the pre-filing statement within 42 days, the matter is required to proceed to mediation under Division 4 before court proceedings can be commenced.

317 Defective pre-filing statement

(1) The defendant is not entitled to assert that a pre-filing statement served by the claimant is defective (by reason of incompleteness or otherwise) unless the defendant has notified the claimant, giving details of any alleged defects, within 7 days after the pre-filing statement is served by the claimant.

(2) A dispute as to whether a pre-filing statement served by the claimant is defective may be referred to the Registrar for determination.

(3) The Registrar may give a direction to the claimant as to the action necessary to cure any defect in the pre-filing statement served by the claimant. If the claimant fails to comply with the Registrar’s direction within the time allowed for compliance, the pre-filing statement served by the claimant is taken not to have been served.

Note. The effect of such a failure is that the claimant must serve the pre-filing statement again.

(4) If the documents and information that comprise the pre-filing statement are furnished to the defendant at different times, the pre-filing statement is not considered to have been served on the defendant until the last of the required documents and information is served.

318 Parties limited to pre-filing statement and defence

(1) For the purposes of court proceedings on a claim for work injury damages:

(a) the claimant is not entitled to file a statement of claim that is materially different from the proposed statement of claim that formed part of the pre-filing statement served by the claimant, except with leave of the court, and

(b) the defendant is not entitled to file a defence that is materially different from any defence served on the claimant in response to the claimant’s pre-filing statement within 42 days after service of the pre-filing statement, except with leave of the court, and

(c) the defendant is not entitled to file a defence that wholly or partly disputes liability for the claim if the defendant has failed to serve on the claimant a defence to the claim as required by this Division within 42 days after the claimant served the pre-filing statement on the defendant, and

(d) a party to the proceedings is not entitled to have any report or other evidence admitted in the proceedings on the party’s behalf if the report or other evidence was not disclosed by the party in a pre-filing statement or defence served under this Division, except with leave of the court.

(2) The court is not to grant leave under this section unless satisfied that:

(a) the material concerned was not reasonably available to the party when the pre-filing statement or defence was served, and

(b) the failure to grant leave would substantially prejudice the party’s case.

(3) The regulations may provide for exceptions to this section.

29 Section 318A, which is contained in Div 4 of Pt 6, which deals with mediation provides:

318A Mediation of claim before commencement of court proceedings

(1) A claimant must refer a claim for work injury damages for mediation under this Division before the claimant can commence court proceedings for recovery of those work injury damages. The claim cannot be referred for mediation until at least 28 days after the pre-filing statement has been served on the defendant under Division 3.

(2) The claimant need not refer a claim for work injury damages for mediation if the defendant has failed to respond to the claimant’s pre-filing statement as required under Division 3 within 42 days after it is served on the defendant.

Note. A defence can still be filed in the 28–42 day period. A defence can be filed after 42 days but such a defence cannot dispute liability. A defence filed after 42 days can deal with such matters as quantum of damages or contributory negligence.

(3) The defendant may decline to participate in mediation of the claim if the defendant wholly disputes liability in respect of the claim, but in any other case the defendant cannot decline to participate in mediation.

(4) Court proceedings for recovery of work injury damages cannot be commenced while the claim is the subject of mediation in the Commission.

(5) A claim is referred for mediation by being referred to the Registrar for mediation by a mediator. The Registrar is to give directions as to which mediator is to mediate on a particular claim referred for mediation.

(6) The Rules may make provision for or with respect to mediation under this Division.

30 Section 364(1) confers a general rule making power on the Minister. Reference is made in the Judicial Registrar’s judgment to the Workers Compensation Commission Rules 2006, which deal with the content of the pre-filing statement and response under ss 315(1) and 316(1). These Rules applied at the date of the “second pre-filing statement”. They replaced the Workers Compensation Commission Rules 2003 with effect from 1 November 2006. The 2003 Rules applied at the date the pre-filing statement and the appellant’s response to it were served. Nothing turns on this circumstance, since the 2006 Rules relating to pre-filing statements are in the same terms as the 2003 Rules.

31 It is to be noted that the Rules to which reference was made were not introduced as part of the scheme for the “new claims” procedures at the time Ch 7 was introduced into the 1998 Act. Chapter 7 commenced on 1 January 2002, at which time the Interim Workers Compensation Commission Rules 2001 came into operation. Those Rules made provision, inter alia, for the claimant and defendant to lodge with the Commission a certificate in an approved form certifying service of the pre-filing statement/defendant’s response within two days of causing the same to be served: r 52(3) and r 54(3). Neither the 1998 Act nor the current Rules make provision for certification of service of the pre-filing statement and response.

32 The provisions of the Workers Compensation Commission Rules 2006, to which the Judicial Registrar referred, are set out below:

17.3 Pre-filing statement

(1) For the purposes of section 315 of the 1998 Act, a pre-filing statement is to consist of a copy of the statement of claim intended to be filed in the court of relevant jurisdiction and is to include as attachments the information and other documents required by the Workers Compensation Acts and these rules.

(2) If the defendant is an employer (but not a self-insurer), the claimant must serve the pre-filing statement on both the employer and the employer’s insurer.

17.4 Material to be served with pre-filing statement

For the purposes of sections 315 and 318 of the 1998 Act, a claimant for work injury damages must serve with the pre-filing statement all information and documents upon which the claimant proposes to rely including:

(a) any notification provided to the claimant as required by section 281(2B) of the 1998 Act that the degree of permanent impairment of the injured worker resulting from the injury is accepted as being sufficient for an award of work injury damages, or

(b) if the dispute has been referred to an approved medical specialist for assessment of permanent impairment, the medical assessment certificate issued by the approved medical specialist in accordance with section 325 of the 1998 Act.

17.5 Pre-filing defence

(1) In accordance with section 316 of the 1998 Act, a pre-filing defence is to consist of a copy of the defence intended to be filed in the court of relevant jurisdiction and is to include as attachments the information and documents required by the Workers Compensation Acts and these rules.

(2) Without leave of the Commission, the failure of a worker to notify of an injury as and when required by the Workers Compensation Acts may not be raised as an issue in the pre-filing defence served by the defendant if that issue has not been included in the notice given in accordance with section 74 of the 1998 Act.

17.6 Material to be served with pre-filing defence

For the purposes of sections 316 and 318 of the 1998 Act, the defendant must serve with the pre-filing defence all information and documents upon which the defendant proposes to rely.

17.7 Defective pre-filing statement

(1) A claimant who has been notified in accordance with section 317 (1) of the 1998 Act in respect of the claimant’s pre-filing statement must, within 7 days of being so notified, serve on the defendant advice as to whether the claimant accepts or denies that the pre-filing statement is defective, and in what detail and to what extent.

(2) Where a claimant has served advice in accordance with subrule (1) and has not, within 7 days of that service, been notified by the defendant that the defendant no longer alleges that the pre-filing statement is defective, the claimant must lodge:

(a) a copy of the pre-filing statement, and

(b) a copy of the defendant’s notification and the claimant’s advice referred to in subrule (1), and

(c) a request that the dispute be referred to the Registrar for determination under section 317(2) of the 1998 Act,

and on the same day serve the request on the defendant.

(3) Where a claimant does not comply with subrule (1), or, where subrule (2) applies, the pre-filing statement is taken not to have been served.

(4) Where a claimant requests in accordance with this rule that a dispute be referred to the Registrar for determination under section 317(2) of the 1998 Act, and lodges a certificate certifying service of the request on the defendant within 2 working days of that service, the dispute is so referred.

(5) Where a dispute is referred for determination in accordance with subrule (4) and the Registrar determines that the pre-filing statement is defective, the pre-filing statement is, in accordance with section 317(4) of the 1998 Act, considered to have been served on the date of service on the defendant of the last document or information required to cure the defect.

(6) Where a dispute is referred for determination in accordance with subrule (4) and the Registrar determines that the pre-filing statement is not defective, the Registrar may direct that the pre-filing statement be considered to have been served on the date when it was in fact served or a subsequent date.

(7) Where a defendant has given notification in accordance with section 317(1) of the 1998 Act and subsequently in respect of the same claim serves a pre-filing defence as referred to in rule 17.5:

(a) despite any application of subrule (3), the pre-filing statement is taken to have been served, and

(b) the defendant is taken to have waived any objection to the defects alleged in the notification.

33 The respondent’s pre-filing statement served on 1 June 2006 comprised a schedule of documents with attachments as indicated. The schedule, inter alia, identified the following items:

...

10. Applicant’s Statement to be provided

11. Vocational Assessment report to be provided

12. Updated medical reports to be provided

13. Expert report as regards liability to be provided

14. Plaintiff’s income tax returns for the years ending 30 June 1998 to date to be provided.

34 The draft statement of claim filed with this pre-filing statement pleaded that the respondent suffered injury to his back as the result of a slip and fall accident, which occurred when he stepped in water which was on the floor while he was carrying print cylinders, which were approximately 1.5 metres long. The particulars of negligence were pleaded as follows:

1. Failing to remove water from the floor prior to the Plaintiff’s accident.

2. Permitting water to remain on the floor when the Defendant, its servants or agents knew or should have known that it posed a slip hazard to workers such as the Plaintiff.

3. In failing to render the floor, the location of the plaintiff’s accident, safe by installing slip resistant material, such as matting or coating the floor with slip resistant paint, in and about the area where the Plaintiff fell.

4. In its failure to implement, maintain or enforce and adequate cleaning system (sic) as regards the removal of water from the floor prior to the Plaintiff's accident.

35 The draft statement of claim that was attached to the second pre-filing statement pleaded, in the alternative, that the plaintiff’s slip and fall accident occurred due to water deposited on the floor as a result of a leak or leaks in the roof of the premises: (par 3). The particulars of negligence repeated those contained in the earlier draft pleading with four additional particulars:

5. In failing to provide safe plant equipment such as the use of an ultrasonic cleaning machine with hoist and hot air drying.

6. In failing to install a drainage rack adjacent to the water tank where the cleaning of the cylinders occurred.

7. In failing to repair the leaking roof in the premises, prior to the accident.

8. Failing to implement any, or any adequate, risk safety procedures.

The respondent pleaded loss of hearing as an additional disability occasioned by the accident.

36 The documents attached to the second pre-filing statement comprised, the new draft pleading; Pt 15 r 12 particulars with the additional particular of disability; each of the medical reports that had been served as part of the first pre-filing statement; updated medical reports; documents answering the description of items 10 – 14 (par [33] above); together with further documents that had not been foreshadowed in the first pre-filing claim.

37 The Judicial Registrar noted that the first pre-filing statement asserted that further documents were to be provided. She referred to rules 17.3 and 17.4. She considered that a document that is to be provided is not disclosed by the party within the meaning of s 318(1)(d). (Red 195.U-W) It followed that the first pre-filing statement was “defective”. (Red 195.X) The Judicial Registrar observed that there is no obligation to commence court proceedings following an unsuccessful mediation and that subject to the limitation in s 151D of the 1987 Act, a plaintiff may obtain further evidence following an unsuccessful mediation and start the process again. (Red 197.D-E)

38 Ground 5 asserts error in holding that the respondent was entitled to rely upon a second pre-filing statement arising out of the same injury and claim. In the written submissions filed in support of the appeal the appellant’s position was that ss 317 and 318 are inconsistent with holding that a claimant may file more than one pre-filing statement under s 315(1) in respect of the same injury and the same claim. It was submitted that the Judicial Registrar’s holding to the contrary was inconsistent with the system objectives that are set out in s 3:

The purpose of this Act is to establish a workplace injury management and workers compensation system with the following objectives:

...

(d) to be fair, affordable, and financially viable,

...

(f) to deliver the above objectives efficiently and effectively.

It was submitted that the purpose of the introduction of the pre-filing statement procedure was the full, early disclosure of each party’s case and that a construction of s 315(1), which permitted service of successive pre-filing statements, was to be avoided. In this respect reference was made to the Minister’s speech on the second reading of the Workers Compensation Legislation Further Amendment Bill (Legislative Assembly, Hansard, 28/11/2001 18961):

The second group of measures, as contained in schedule 1.2, gives effect to the common law inquiry recommendations relating to improved processes for common law claims. The report of the inquiry observed from evidence presented that common law claims were more than twice as expensive to process compared to statutory benefit claims. The report also noted and accepted that the financial position of the scheme required that savings be made, and in Justice Sheahan’s view, “savings must and can be found among the transaction costs associated with the common law component of the scheme ...”. Accordingly, the bill adopts the inquiry recommendation that a pre-litigation process be introduced for common law work injury damages claims. The pre-litigation process proposed by the bill requires the parties to exchange information early, respond promptly to offers of settlement and, wherever possible, settle matters without the necessity of filing proceedings in the court.

39 On the hearing of the appeal Mr J Jobson, who appeared on behalf of the appellant, noted the provisions of s 151DA(2) of the 1987 Act, which contemplate that a claimant may withdraw a pre-filing statement. Mr Jobson did not press the submission that a claimant was precluded from serving a second pre-filing statement arising out of the same injury. His submission was that withdrawal of a current pre-filing statement requires notification of that fact to the defendant.

40 Mr Campbell submitted that s 318 is the key to understanding the scheme of Pt 6. The provision operates to compel the parties to disclose their respective cases at an early stage. However, the very limited discretion conferred on the court to permit a departure from the case disclosed was said to be against the conclusion that there can only be one pre-filing statement served in respect of a claim. In Mr Campbell’s submission, the legislature is not to be taken to have intended that an injured worker whose pre-filing statement is inadequate be shut out from the opportunity to have his case properly presented. The answer in such a case is to compel him or her to start again and to be required to comply with the provisions of Pt 6 including by further mediation.

41 After the hearing of the appeal judgment was delivered in Strasburger Enterprises Pty Ltd t/as Quix Food Stores v Serna [2008] NSWCA 354, which contains discussion of the scheme of Pt 6. In Serna the solicitors acting for the claimant purported to serve the pre-filing statement under cover of a letter dated 10 February 2006. The letter was accompanied by a draft statement of claim, but there was no material attached to it that could be said to constitute the evidence (or particulars of the evidence) proposed to be relied on in support of the claim. By a subsequent letter, dated 31 March 2006, the solicitors acting for the respondent enclosed “by way of service” the pre-filing statement that had earlier been attached to the letter of 10 February, together with a number of medical reports and an expert’s report on liability. The appellant, employer, had not responded within the time if the date of service of the pre-filing statement was taken to be 10 February, but was within time if the date of service was found to be 31 March 2006. Basten JA (with whose judgment Gyles AJA and Hoeben J agreed) commented on the need for a defendant to be able to identify with confidence the date on which a pre-filing statement has been served upon it. His Honour observed that an express statement by the claimant’s solicitor that a document constituted a pre-filing statement while carrying significant weight, was not decisive. This was because the document did not comply with the minimum requirements for a pre-filing statement in that it did not annex or identify material which might constitute evidence on which the claimant sought to rely: at [44]. For this reason the document attached to the letter of 10 February was not a pre-filing statement. It followed that the appellant employer was not precluded under s 318(1)(c) from defending the claim on liability.

42 In this case the respondent’s first pre-filing statement set out particulars of his claim and the evidence that he proposed to rely on in support of it. In addition to the draft statement of claim and the draft Pt 15 r 12 particulars there were a number of medical reports, including that of Dr Deveridge, which detailed the history given by the respondent of the circumstances of the accident. (CB 38.O-R) The history may be received as evidence of the fact under s 60 of the Evidence Act 1995 (NSW): R v Welsh (1996) 90

A Crim R 364 at 367-8. Unlike the document in Serna, the pre-filing statement served on the appellant on or about 1 June 2006 complied with the requirements of s 315(1). However, it contained an assertion that further documents were to be provided. Subsection 317(4) provides that if the documents and information that comprise the pre-filing statement are furnished to the defendant at different times, the pre-filing statement is not considered to have been served until the last of the required documents and information is served. On one view the pre-filing statement was not served on the appellant until the last of the documents identified in Items 10 – 14 of the Schedule was served, which it would seem was the day on which the “second pre-filing statement” was served. On this view time was running in the interim and, absent leave under s 151(2), the respondent was susceptible to a limitations defence.

43 Mr Campbell submitted that subs 317(4) is to be understood in its statutory context as confined to circumstances in which documents and information are furnished at different times in order to cure a defective pre-filing statement.

44 In Serna it was said that the scheme of Pt 6 involves potential traps and strategic decisions for both parties. This was illustrated by the requirement that a prospective plaintiff not only have the particulars of his or her claim but also all of the evidence on which it is proposed to rely before serving the pre-filing statement: at [37]. The submission that a pre-filing statement could be completed by the service of a further report is referred to at [46] and doubted at [47]. However, there was no discussion of the operation of s 317(4), since it does not appear that the document described as the pre-filing statement in the solicitor’s letter of 10 February identified any other document or information that was proposed to form part of the pre-filing statement.

45 In a case in which a defendant asserts that a pre-filing statement is incomplete, and therefore defective, the claimant may accept that the statement is defective and cure the defect by serving the additional documents and information identified by the defendant. Alternatively, there may be a dispute about the matter in which case the Registrar may give directions to cure any defect including that the claimant serve additional documents and information. In either instance subs 317(4) is engaged and service is considered not to have been effected until the last of the documents and information has been served. There is no uncertainty about the date of service because the additional documents and information that comprise the pre-filing statement are identified either in the defendant’s notice of alleged defects or in the Registrar’s directions. In each case the additional documents and information are required in order to complete the pre-filing statement. However, subs 317(4) is not on its face confined to cases in which the defendant asserts under subs 317(1) that the pre-filing statement served on it is defective. It is arguable that subs 317(4) permits a claimant to serve his or her pre-filing statement in stages. However, in such an event the first document that is served must identify the additional documents and information that are to comprise the pre-filing statement, since otherwise the defendant is unable to determine when the pre-filing statement is served. Moreover, unless the additional documents and information are identified in the initial document that is served it would not be correct to describe them as being required in order to comprise the pre-filing statement.

46 There is no evidence of the contents of any covering letter under which the schedule of documents was served on the appellant. Mr Jobson said that there had been no assertion made on the respondent’s behalf that the first pre-filing statement was not complete. This is consistent with the assertion in the affidavit of Spiro Eistis, the solicitor acting for the respondent, that on or about 1 June 2006 a pre-filing statement was served on the defendant and its workers compensation insurer (par 3, affidavit sworn 8 August 2007, Red 186.B-F). The appellant acted on the assumption that the document served on it on or about 1 June 2006 was a pre-filing statement within s 315(1), to which it responded by serving a defence within s 316(1). It may have been open to it to consider that service had not been effected because the documents identified in Items 10 – 14 had not been served. Such a decision however would have involved significant risk. Particularly since Item 12, was in terms “updated medical reports to be provided”. The appellant could not know when the last document answering this description had been served. In any claim which ultimately proceeds before a court updated medical reports are likely to be obtained and the conditions for the grant of leave to rely on them established. In my opinion the respondent’s foreshadowed reliance on updated medical reports did not amount to any indication that the first pre-filing statement was incomplete without them. However, different considerations may apply to Items 10, 11, 13, and 14 of the schedule. It was open to the appellant to assert that the pre-filing statement was not complete without these documents. However, the appellant lost its right to so assert after seven days. The appellant served its pre-filing defence. It may be that the respondent could have objected to the service of the pre-filing defence asserting that service of the pre-filing statement had not been effected. But this is not what happened. The respondent referred his claim for mediation consistently with acceptance that his pre-filing claim had been served on the appellant at least 28 days earlier: s 318A(1).

47 In my opinion the first pre-filing statement was served on the appellant on or about 1 June 2006.

48 In Mr Campbell’s submission the Judicial Registrar was correct in holding that there is nothing in the statutory scheme which requires that proceedings in a court claiming work injury damages be commenced after the failure of a mediation under Pt 6, nor which precludes the service of successive pre-filing statements.

49 The scheme is designed to promote the timely settlement of claims. This is evident in the provisions to which reference has been made including s 254 (prompt notice of injury); s 281 (the supply of relevant particulars about a claim and the determination of claims) and in the time limits imposed in Pt 6. Section 318 is directed to compelling the parties to make early, full, disclosure of their cases. It is less clear that the purpose of the scheme accommodates successive pre-filing statements and mediations as a claimant, over time, assembles the evidence in support of his or her case. However, in light of the way the matter was argued and the conclusion to which I have come, it is not necessary to decide that question.

50 The effect of service of the respondent’s pre-filing statement is that time ceased to run under s 151D of the 1987 Act. A step needed to be taken by the appellant or the respondent before time resumed running. That step was either an application by the appellant to strike out the pre-filing statement or its withdrawal by the respondent. The appellant had not procured the striking out of the pre-filing statement and as at 23 March 2007 the respondent had not withdrawn it. It follows that the pre-filing statement remained current: s 151DA(2) of the 1987 Act. It was not submitted that two pre-filing statements arising out of the same injury could be current at the same time. Mr Campbell’s submission was that the service of the document titled ‘second pre-filing statement’ impliedly effected the withdrawal of the first. In my opinion the withdrawal of a pre-filing statement by the person who served it requires at the least the communication of the fact of withdrawal to the person on whom it has been served. The appellant had responded to the pre-filing statement served by the respondent, which remained current. It was entitled to consider that in respect of the respondent’s claim for work injury damages arising out of the injury sustained by him on 31 July 2003 it had preserved its entitlement in accordance with the scheme of Pt 6 to put in issue its liability in any court proceedings.

51 I consider that the Judicial Registrar erred in holding that the pre-filing statement was defective. The appellant has not asserted that it was defective by reason of incompleteness or otherwise. It conformed to the minimum requirements of s 315(1) and had been served on the appellant and responded to by it and acted upon by both parties as an effective pre-filing statement for the purposes of Pt 6. The draft defence in Exhibit “A” is in the same terms as the defence filed in the District Court. The appellant was not precluded under s 318(1)(c) from relying on pars 2 and 3 of the defence and it was an error to strike them out.

52 The question of whether s 315(1) requires the service of the evidence, as distinct from particulars of the evidence, as part of the pre-filing statement was left open in Serna. It was not raised in this appeal. It is to be noted that the appellant’s position before the Judicial Registrar was that under s 315(1) it is sufficient that particulars of the evidence be served (CB 15.T-W).

53 For these reasons I propose the following orders:

ORDERS

1. Grant leave to appeal.

2. Direct that the amended notice of appeal be treated as filed pursuant to leave.

3. Allow the appeal and quash the orders made by the Judicial Registrar on 6 November 2007 striking out paragraphs 2 and 3 of the defence filed on 5 July 2007.

4. Dismiss the respondent’s notice of motion filed in the District Court on 15 August 2007.

5. The respondent is to pay the appellant’s costs of the appeal and in the court below and with respect to the appeal to have a certificate under the Suitors Fund Act 1951, if otherwise qualified.

54 GYLES AJA: I agree with the orders proposed by Bell JA. I agree that the only effective pre-filing statement was that served on 6 June 2006 for the reasons given by Bell JA supplemented by those of Hodgson JA. That conclusion is supported by an additional reason – if a pre-filing statement can be withdrawn to permit another to be served, that cannot be done once (as here) it has been acted upon by the proposed defendant.

55 In his oral submissions, counsel for the appellant was prepared to assume that a pre-filing statement could be withdrawn and another served because of s151DA(2) of the 1987 Act. That assumption is debateable, and, of course, does not settle the proper construction of the statutes. The correctness of it does not need to be decided in this appeal as there is no scope for such withdrawal in this case.

56 Part 6 of Div 3 of the 1998 Act sets up what Hodgson JA has aptly described in his reasons as an elaborate edifice based on the existence of a single identifiable pre-filing statement. His Honour points out that service of successive pre-filing statements is inconsistent with the evident purpose of the legislation and would be unfair to potential defendants.

57 The elaborate, and prescriptive, scheme makes no provision for withdrawal of a pre-filing statement or for the service of successive statements.

58 The 1998 Act, rather than the 1987 Act, governs recovery of work injury claims and prevails in the event of inconsistency (s2A of the 1987 Act). Section 151DA(2) of the 1987 Act is not directed to laying down procedures for claims and is not framed in terms that grant a right. If it is to be given any effect beyond limitations, that should not derogate from the scheme of the 1998 Act. That might be achieved by permitting the withdrawal of a pre-filing statement before it is acted upon by the proposed defendant in a substantive and unequivocal way. That would avoid most, if not all, of the inconsistency and unfairness to which Hodgson JA refers.

59 In the present case, a pre-filing defence was served and a mediation was conducted prior to the purported service of the second statement. The proposed defendant (indeed both parties) unequivocally acted upon the effectiveness of the statement served on 6 June 2006. Withdrawal of that statement was not permissible in those circumstances. As the 1998 Act does not permit two pre-filing statements to be extant at the one time, the later statement was not a pre-filing statement in accordance with the 1998 Act, and was ineffective. The pre-filing statement served on 6 June 2006 remains on foot, as do the steps taken by reference to it.

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LAST UPDATED:
30 January 2009