Kwiatkowski v Plum Pictures Limited & Anor (No 2)

Parties: Anne Kwiatkowski (plaintiff)
Plum Pictures Limited (first defendant)
Michelle Thomas t/a Rapid Environmental Response Unit (second defendant)

Representation: Counsel:
Ms A McQuillen (plaintiff)
Mr A Hourigan (first defendant)
Mr N Simone (second defendant)
Solicitors:
G H Healey & Co Lawyers (plaintiff)
Mangioni Biggs + Co (first defendant)
Sparke Helmore Lawyers (second defendant)

File Number(s): 2019/53869

Publication restriction: Nil

EX-TEMPORE JUDGMENT (REVISED)

1. This matter was before me on 9 April 2025 and again today for the determination of a notice of motion filed by the plaintiff on 27 March 2025. From reasons I gave earlier today concerning the position of the second defendant, and from what was said on 9 April 2025, it is clear that the relief sought in the plaintiff’s motion had become necessary because she had not complied with the provisions of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“WIM”) stipulating pre-filing procedures in relation to claims for work injury damages.

2. For reasons I gave on 9 April, which drew upon what Chen J had said in a judgment delivered on 28 April 2023 (Kwiatkowski v Plum Pictures Limited & Anor. [2023] NSWSC 165), the plaintiff’s claim had been pleaded as one for personal injuries relying upon the provisions of the Civil Liability Act 2002 (NSW) on the basis that she was an independent contractor vis-à-vis each of the first and second defendants.

3. Each of the first and second defendants have pleaded, at least in the alternative, that the plaintiff’s claim for damages was one to which the work injury damages provisions in Sch 3 of Div 5 of the Workers Compensation Act 1987 (NSW) (“WCA”) applies and are not maintainable, inter alia, because she has not complied with Chapter 7 WIM. I infer from the affidavit evidence read that it was only after advice of learned King’s Counsel had been taken that it was decided that prudence dictated taking the necessary steps to comply with Chapter 7, albeit belatedly.

4. Pursuant to orders I made on 9 April 2025, the plaintiff’s lawyers prepared a draft pre-filing statement in accordance to comply with of Chapter 7. In that statement, the case as presently formulated against the first defendant is maintained but an alternative basis of liability that the plaintiff is a “worker”, perhaps pro hac vice or under sch 1 of cl 2 WIM. No doubt there are complexities, as I have discussed with Mr Hourigan of counsel, who appears for the first defendant, and Mr McQuillen of counsel, who appears for the plaintiff.

5. It is obvious to me that the matter cannot proceed to hearing on 2 June 2025, when it is presently listed. To require the case to proceed without the plaintiff being given an opportunity to comply with Chapter 7, if that can be done at this late stage, a matter about which I express no opinion, given the risk that her claim may fail for what are essentially procedural reasons.

6. I acknowledge that the first defendant’s position as articulated by Mr Hourigan is that the hearing dates should be maintained and the matter should proceed. However, while I have not made a final decision about how to resolve the issues raised in the motion of 27 March 2025, I am of the view that the prospect of very significant wasted costs if the hearing dates are left in place, which must be inevitably incurred, ought to be avoided in the interests of the parties and in the broader interests of the administration of justice.

7. Following further discussion today, having regard to the complexities that may arise, and having heard my opinion that the hearing date of 2 June really ought to be vacated because the matter is not ready to proceed, counsel have agreed on a timetable for the final resolution of the motion of 27 March 2025.

8. There may well be significant delay in complying with Chapter 7 WIM. It seems that Dr Bodel, an orthopaedic surgeon qualified by the plaintiff for the purpose of giving evidence, has provided an assessment of whole person impairment, calculated in accordance with the guidelines made under WIM, which clears the s 151H threshold stipulated in WCA. However, the defendant disputes that any degree of whole person impairment suffered by the plaintiff rises to the level of “at least 15%”: s151H. This is what is referred to as “a threshold dispute” which may only be resolved in the Personal Injuries Commission by way of referral for medical assessment. That process itself can be time consuming.

9. Given all of these matters, and to allow both parties the opportunity to fully argue the issue about whether it is more appropriate either to require the plaintiff to discontinue the proceedings or for the Court to stay them, I have decided to further adjourn the notice of motion. For these reasons, the orders I make are:

10. Vacate the hearing date fixed for the principal proceedings of 2 June 2025.

11. Direct that the plaintiff file and serve any amended notice of motion and further evidence in support on or before 16 May 2025.

12. Direct that the first defendant file and serve any evidence in response on or before 6 June 2025.

13. List the matter for further hearing before me on Friday 13 June 2025.

14. All questions of costs in relation to the notice of motion of 27 March 2025 are reserved.

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