1. Notwithstanding significant efforts by the applicant to effect service of the strike out application on the respondent, who is seemingly unrepresented since Firths advised that they no longer had instructions, there is no evidence that the respondent has been served with the application let alone that he is aware that the application has been made.
2. I would also record that the Commission has sent letters and emails dated 8 May 2025 to the respondent's last known residential and email addresses. In these communications, the respondent was advised of the fact of the application and that in the absence of a response to this application, he would run the risk that the application would be decided in his absence. No answer to the Commission's correspondence has been forthcoming.
3. In John Lacey Earth Moving Pty Ltd v Campbell-Willis,[2] Acting President Byron at [46] listed a number of relevant considerations to be taken in account when considering striking out a PFS. One of these factors is whether the claimant (respondent) has been given every opportunity to be heard on the application. I accept that the applicant has attempted, by utilising various different means, to locate the respondent in order to serve the application. These actions have not been successful. I do not have any evidence that the respondent has either been served or is even aware of the fact of this application. This fact militates against the making of the orders sought by the applicant.
4. However, since the PFS was served on 9 February 2023, over two years ago, the respondent has taken no active steps to pursue his claim. As President Judge Keating said in Luke v McCarthy,[3] the policy behind s 151DA of the Workers Compensation Act 1987 (the 1987 Act) is to give parties an opportunity to finalise all pre-litigation steps. It is not the function of this provision to extend time indefinitely.
5. I would also remark that the cause of action in this matter arose on 14 November 2018. The limitation period provided in s 151D(2) of the 1987 Act expired on 14 November 2021. Any suspension of the limitation period in s 151D of the 1987 Act by the filing of the PFS, as contemplated by s 151DA(1)(b), is therefore ineffective to extend the limitation period in this matter as the PFS was not served until 9 February 2023. Should the respondent wish to pursue his work injury damages claim in the courts, he will inevitably be required to seek leave to bring the claim out of time as provided for in s 151D(2) of the 1987 Act.
6. In making an order striking out a PFS, depending upon the circumstances, the litigant may then suffer a limitation problem in any subsequent court proceedings that may be commenced. That is, the litigant has to apply for leave of the court. This is a factor to weigh when considering whether to strike out a PFS. However, this consideration is not of much weight in this matter given the history and the fact that the limitation period had expired well prior to the PFS being served. I note too that in the defence to the PFS, the applicant has given notice of its intention to rely on its limitation defence.[4]
7. This matter is finely balanced. The fact that the respondent is not aware of the application and has apparently not been served with the application is a powerful discretionary factor against making the order. A number of steps have been taken to inform the respondent, by both the applicant and this Commission, all of which have either been unsuccessful or elicited no response.
8. Since serving the PFS on 9 February 2023, the respondent has not diligently pursued these proceedings. The matter has effectively sat in abeyance for over two years. Keeping the PFS current will not serve to suspend time for limitation purposes, that time bar having expired well prior to the PFS being served. Whether the PFS is struck out or not, were the respondent to pursue his damages action in the courts, he will of necessity have to seek leave.[5] I therefore do not consider that any prejudice, additional to any which the respondent currently possesses, will be occasioned if I were to make the orders sought.
9. Patently the respondent is aware that he is a party to these proceedings. A citizen who commences proceedings in the courts and tribunals of this state, as is their right, has a responsibility to diligently progress the claim in accordance with the statutory mandate of the particular institution the claim is filed in. The Commission's statutory mandate requires the just, quick and cost-efficient resolution of the real issues in dispute with as little formality as possible.[6] This mandate cannot be achieved if litigants do not prepare and progress their cases
10. I have examined the history of this matter. Even before the respondent's solicitors advised that they were without instructions from the respondent, the matter was not being actively progressed, and this has effectively been the case since the PFS was served. The applicant had arranged a number of medical examinations which the respondent failed to attend.
11. I am satisfied that the pre-requisites for the making of the order under s 151DA of the 1987 Act have been made out. As I said, the matter is finely balanced. However, I am much persuaded by the fact that the proceedings already have a limitation issue, so striking the matter out will not create that issue. I am also much concerned that the respondent has not actively progressed the proceedings since the PFS was served.
12. I will therefore make the orders striking out the PFS. Given that I have not heard from the respondent and my assumption is that the respondent is unaware of this application, I will not make any costs order adverse to the respondent.

1. The respondent claimant's Pre-Filing Statement served 9 February 2023 is struck out pursuant to s 151DA(3) of the 1987 Act.

1. Each party is to bear its own costs of these proceedings, including this application.

[1] The applicant's solicitors have set out in detail the steps they have undertaken to attempt service of the application upon the respondent in a letter addressed to the Commission dated 13 May 2025.

[2] [2007] NSWWCCPD 197.

[3] [2008] NSWWCCPD 123

[4] At paragraph [12] of its Pre-Filing Defence.

[6] Section 3(c) of the Personal Injury Commission Act 2020.