Matthew Heuston v Central Coast Leagues Club

District Court of NSW|2011-05-12

Introduction 1In this matter, the plaintiff seeks work injury damages in relation to injuries sustained as a result of a slip and fall on 1 November 2005, whilst in the course of his employment at the defendant's club located at Gosford in New South Wales. 2The plaintiff's statement of claim was filed on 4 February 2010 and the defendant's defence on 31 March 2010. On these pleadings, the defendant has admitted that the incident occurred and that as a result of it the plaintiff sustained some of the injuries alleged. However, it has denied negligence. 3During Wednesday's opening of the matter, Mr Graham, counsel for the defendant, indicated that he proposed to object to the plaintiff giving any oral evidence in the proceedings on the basis of his argument that s 318(1)(d) of the Workplace Injury Management and Workers Compensation Act, 1998, ("WIM") prohibited the plaintiff from having any evidence, including his own, admitted in the proceedings unless the evidence was disclosed in the pre-filing statement required to be served pursuant to s 315(1). Mr Graham further argued that such disclosure must be in the form of a statement from the plaintiff and as one was not contained in the relevant pre-filing statement, he was prohibited from giving oral evidence. 4Mr Graham agreed that this was a preliminary issue and consequently it needed to be determined before the matter went any further. Mr Toomey, the plaintiff's counsel, indicated that this issue caught him by surprise and sought some time to consider it. 5I note that this question had not been raised in the defence nor mentioned before the list judge who was told that the matter was ready to proceed prior to its transfer to me for hearing. However, Mr Graham pointed out that it had been raised on an earlier extension of time motion dealt with by another judge of this court who granted leave under s 151D of the Workers Compensation Act, 1987 for the subject proceedings to continue. Mr Toomey did not appear for the plaintiff on that occasion. 6In light of the above, I stood the matter over until yesterday morning for further argument on this preliminary point.

The Legislation 7The scheme set up by WIM in relation to pre-filing statements is contained in Division 3 which is comprised of s 315 to s 318 which relevantly provide as follows: "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. ... 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. (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. 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. 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...." 8It is common ground that the Rules referred to in s 315(1) are the Workers Compensation Commission Rules and whilst it is unclear as to whether the 2006 or the 2010 version applies to this accident, nothing turns on this point because they are relevantly identical. 9Rules 17.3(1) of the Rules, headed "Pre-Filing Statement" states: "For the purposes of s 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 the Rules. 10Rule 17.4 of the Rules, headed "Material to be Served with Pre-Filing Statement", states, inter alia: "For the purposes of s 315 and 318 of the 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..."

The Defendant's Arguments 11Mr Graham submitted that s 318(1)(d) of WIM operates independently and, as I understood his argument, in addition to the requirements of s 315(1), with the result that even if s 315(1) is satisfied, the plaintiff still needs to disclose all his evidence in the form of a written statement. If he fails to do so, the argument continued, he could not give any oral evidence at all due to the provisions of s 318(1)(d), except with leave pursuant to s 318(2) which would not be forthcoming because everything that the plaintiff could say was "reasonably available" to him when the pre-filing statement was served. 12Mr Graham later conceded that the plaintiff would most probably be granted leave in relation to evidence as to matters occurring after the service of the pre-filing statement as they would obviously have been "not reasonably available" to the plaintiff at such time. It is agreed between the parties that the pre-filing statement was served on 4 November 2009. 13Mr Graham also submitted that this interpretation of s 318(1)(d) was in accordance with Parliament's intention as revealed by the relevant Second Reading Speech set out below.

The Plaintiff's Arguments 14Mr Toomey argued that s 315 - s 318 must be read as a whole and s 315(1) should be read as satisfied if a client includes sufficient particulars of his claim in the pre-filing statement to enable the defendant to meet it. He also relied upon the fact that Rule 17.4 applies to both s 315 and s 318 and requires that the claimant serve with the pre-filing statement "all information and documents upon which the claimant proposes to rely...". 15Mr Toomey also submitted that there is no mention in any of the relevant provisions of a requirement to serve a statement from the claimant. 16If his above arguments were incorrect, Mr Toomey argued that the defendant could not now raise this issue as it was in reality an assertion that the plaintiff's pre-filing statement was defective which is a matter that s 317 requires be raised within seven days after service of the pre-filing statement upon the defendant.

The Authorities 17There is no direct authority on the point argued. However, Mr Graham relied upon the comments of Basten JA in Strasburger Enterprises Pty Ltd trading as Quix Food Stores v Serna [2008] NSWCA 354 at [37] wherein his Honour stated: "This scheme involves potential traps and strategic decisions for both parties. First, a prospective plaintiff is required to have not only particulars of his or her claim prepared, but also all the evidence on which it is proposed to rely if the matter comes to court, before serving a pre-filing statement. Subject to one possible qualification noted below, later changes to the particulars or additions to the evidence can only be made with leave of the court, which will not be granted unless the court is satisfied that the material concerned was "not reasonably available" when the pre-filing statement was served and the failure to grant leave would substantially prejudice the plaintiff's case: s 318(2)." 18Mr Toomey, on the other hand, referred to the comments of Bell JA (as she then was) in Papercoaters Pty Ltd v Jessop [2009] NSWCA 1 at [49] and [52] where her Honour stated: "[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."... "[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." 19Both parties submitted that I should take a purposive approach as required by s 33 of the Interpretation Act, 1987, when interpreting Division 3 of WIM. In this regard, Mr Graham referred me to the Minister's speech on the Second Reading of the Workers Compensation Legislation Further Amendment Bill (Legislative Assembly, Hansard, 28/11/2001 18961) which is extracted at para [38] of Bell JA's decision in Jessop and is as follows: "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." (emphasis added) 20The purpose of s 318 has also been considered in this court by Elkaim SC DCJ in Kanwal v Fieldmarshall Security Pty Ltd & Anor (8 October 2010) where his Honour stated at [31]: "The purpose of Section 318 is clearly to ensure that when a plaintiff files a pre-filing statement he gives to the defendant a complete summary of his allegations including the documentary material upon which he intends to rely."

Consideration 21In my view, s 315 - s 318, which comprise the entirety of the Division entitled "Pre-filing statements", provide a framework which should be read together. 22The real question is whether the words in s 315(1) which require a claimant to serve a pre-filing statement "setting out such particulars of the claim and the evidence that the claimant will rely on" are satisfied, to adopt the distinction of Bell JA in Jessop, by giving "particulars" of the claim and "particulars" of the evidence or whether they are to be read to require "particulars of the claim" and the service of the evidence. 23To my mind, the purpose of s 315 - s 318 and the relevant Rules is to enable the parties to be sufficiently aware of their opponent's cases so as to facilitate resolution prior to the commencement of proceedings. Arguably, the more disclosure required the more such resolution will be facilitated. 24However, the relevant provisions do not specifically require a claimant nor indeed any witness to file witness statements and this could easily have been stipulated. Evidence in common law matters has historically been given orally and a change of the nature which the acceptance of Mr Graham's argument would entail, requires, in my view, clear language. Further, Part 31 Rule 31 of the Uniform Civil Procedure Rules, 2005 requires that in a trial of a matter commenced by a statement of claim, a witness's evidence "must be given orally before the court". Whilst there are certain presently irrelevant exceptions and the court has power to order otherwise, there is no doubt that oral evidence is the usual course. 25If Mr Graham were correct, it would also mean that the claimant's statement, if provided, would become his evidence in chief as s 318(1)(d) would prohibit the giving of any other evidence. This is not the way that work injury claims have proceeded in the past. 26Further, in my view, a plain reading of s 315(1) is that the claimant must serve a "pre-filing statement" setting out particulars of the claim and particulars of the evidence that the claimant will rely on. This reading is also supported by Rule 17.4 which applies not only to s 315 but s 318 as well. 27Accordingly, I find that s 315(1) requires a claimant to provide "particulars" of the claim and "particulars" of the evidence in sufficient detail to achieve the abovementioned purpose together with all information and documents upon which he proposes to rely. Section 318 requires that such details need to be "full" as stated by Bell JA in Jessop. If the claimant fails to do so, evidence of these matters will not be admitted due to the provisions of s 318(1)(d) unless leave is granted pursuant to s 318(2). 28Accordingly, I find that the plaintiff is not prohibited from giving oral evidence because of his failure to supply a statement as suggested. Whether all of the plaintiff's proposed evidence will be allowed will depend upon whether sufficient particulars of it have been given as described and this can be determined upon objection. I do not accept that this process will greatly lengthy the proceedings nor defeat the purpose of the relevant provisions. 29In light of my decision it is unnecessary for me to determine whether Mr Toomey's alternative argument pursuant to s 317 is correct.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 November 2014

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