E A & B A Dixon Pty Ltd v Mills (NSWPICPD 2025)

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Key takeaways

For the purposes of work injury damages (WID) claims, s151DA(3) of the Workers Compensation Act 1987 (1987 Act) allows an employer to apply to the President of the Personal Injury Commission (PIC) and seek to have a Pre-Filing Statement (PFS) struck out if it has been more than six months from when a Pre-Filing Defence (PFD) was served and all pre-litigation requirements have been completed.

A PFS cannot be struck out unless the PIC is satisfied that the worker’s degree of permanent impairment has been fully ascertained (s151DA(4)) of the 1987 Act).

A PFS is not to be used as a means to pause a WID claim indefinitely. A PFS may be struck out when there is no intention of a worker to progress their WID claim.

Brief facts

The worker sustained an injury on 16 October 2000 during the course of his employment. A Medical Assessment Certificate assessing the worker with 24% whole person impairment was issued on 12 October 2020. The worker’s solicitors then served a Notice of Intention to pursue a WID claim. A PFS was served by the worker’s solicitor on 22 March 2021 and the employer served a PFD on 31 March 2021. The parties participated in a PIC mediation where the claim did not resolve and a Certificate of Mediation to this effect was issued by the PIC on 24 May 2021.

On 28 November 2024, the employer filed an application to strike out the worker’s PFS. The worker filed a Notice of Opposition to the application on 25 February 2025. The application was heard before Judge Phillips, President of the PIC on 20 May 2025.

In support of its application, the employer relied upon an email dated 22 October 2024 from the worker’s solicitor advising that the worker did not agree to the PFS being struck out, however indicated that the worker did not intend to progress his WID claim.

Judge Phillips acknowledged that there was no evidence that the worker had filed or intended to commence proceedings in the District Court, which was the next step in progressing his WID claim. The worker did not oppose the making of the orders, rather he raised concerns about his statutory entitlements which was not the subject of this application.

Judgment

Judge Phillips allowed the employer’s application and determined that the worker’s PFS dated 22 March 2021 was to be struck out in accordance with s151DA (3) of the 1987 Act. This was on the basis that the pre-requisites for striking out the PFS as required by s151DA (3) and s151DA(4) of the 1987 Act had been satisfied.

In support of his decision, Judge Phillips referred to his commentary in State of New South Wales (NSW Police Force) v Adams:

The filing of a PFS is not designed to ‘park’ a work injury damages claim indefinitely. This is contrary to the legislative purpose as stated by President Keating in Luke v McCarthy where his Honour remarked that the purpose of s151DA (3) of the 1987 Act was to give the parties sufficient opportunity to complete all pre-litigation requirements. His Honour also said that the section did not serve to extend time indefinitely while the PFS was current.

The pre-litigation requirements were completed in 2021, being over four years prior and the worker had not taken any active steps or provided any evidence that he intended to pursue his WID claim by commencing proceedings in the District Court. Judge Phillips was satisfied that the worker had an understanding of the application, even though he was currently unrepresented, as he had access to legal representation previously for many years.

Implications

This decision reaffirms the general position that a PFS is not to be used as a means to pause a WID claim indefinitely once all pre-litigation requirements have been completed by the parties.

Insurers and employers should strongly consider whether there is any evidence that a worker has or intends to progress their WID claim by way of commencing Court proceedings prior to filing an application to strike out a PFS. Such an application does not stop a worker from re-issuing a PFS at a later stage, however it will likely impact any application for leave sought under s151D of the 1987 Act.