Kwiatkowski v Plum Pictures Limited (No 3)

1. [1]

   HIS HONOUR: This matter has suffered a long, complex and somewhat depressing procedural history. It is a claim for damages for personal injury suffered as long ago as 19 February 2016. The proceedings were commenced by statement of claim filed on 18 February 2019, presumptively the last day for filing under the Limitation Act 1969 (NSW). There have been amendments since.

2. [2]

   The matter has come before the Court no less than 39 times over its now seven-year history. For the sake of brevity, I will not repeat the whole factual background to this matter, which may be otherwise found in the decision of Chen J in Kwiatkowski v Plum Pictures Limited & Anor [2023] NSWSC 165, as well as my previous judgments.

3. [3]

   This judgment deals with two of four extant notices of motion. I will briefly set out each one. The other two notices of motion – one from each party – are about procedural and evidential issues relating to evidence at any final hearing of the proceedings. For reasons I will return to at the end of these reasons, I will be adjourning both.

Nature of the Case

1. [4]

   It is necessary to provide context to say that the plaintiff’s case is that she was a self-employed film and television production assistant whom the former second defendant, acting as agent for the first defendant, engaged to work on a television shoot at Manly being undertaken by the first defendant. During that television shoot, she was injured. By her original pleading she sought to frame her case as one not covered by the work injury damages provisions of Part 5 of the Workers Compensation Act 1987 (NSW) (“WCA”). Rather she pleaded that the degree of control and supervision exercised by the first defendant over her put her into a relationship with it akin to employment notwithstanding her self-employed status. As I understand it, TNT v Christie (2001) 65 NSWLR 1 is invoked.

2. [5]

   By its defence the first defendant did not plead that the plaintiff was a “worker” employed by it to which WCA applied. However, by its defence to the amended statement of claim which it filed on 5 June 2023 it pleaded, in the alternative to matters relied on under the Civil Liability Act 2002 (NSW), that if the plaintiff otherwise made good her claim, it was liable to be dismissed for non-compliance with pre-litigation requirements of, inter alia, Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“WIM Act”). No steps were taken for dismissal of the proceedings on that basis until the filing of the first defendant’s notice of motion of 27 June 2025 referred to below (at [8]) and dealt with in this judgement.

Plaintiff’s Notice of Motion Filed 19 May 2025

1. [6]

   On 19 May 2025, the plaintiff filed an amended notice of motion (“the Plaintiff’s Notice of Motion”) pursuant to directions made by me on 9 April 2025, which sought to discontinue proceedings against the former second defendant, have the cross-claim filed by the second defendant against the plaintiff likewise dismissed, and an order adjourning this matter to allow assessment by an orthopaedic surgeon, plastic surgeon and psychiatrist for the purpose of compliance with the necessary pre-litigation procedural requirements for claims for work injury damages established by Chapter 7 of the WIM Act. The plaintiff also seeks (though not as an express prayer) leave to amend her pleadings, after compliance with WIM, to claim under the WCA in the alternative.

2. [7]

   Nothing else need be said about the second defendant, who no longer plays any part in these proceedings: Kwiatkowski v Plum Pictures Limited [2025] NSWSC 434.

First Defendant’s Notice of Motion Filed 27 June 2025

1. [8]

   On 27 June 2025, the first defendant filed a notice of motion (“the First Defendant’s Notice of Motion”) which for the first time seeks an order pursuant to rule 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), dismissing the proceedings for failure to comply with Chapter 7 of the WIM Act and due to the proceedings constituting an abuse of process of the Court. As an alternative to that relief, the first defendant seeks an order pursuant to UCPR r 14.28(1) that the Further Amended Statement of Claim be struck out on the basis the proceedings are an abuse of process of the Court. The first defendant additionally seeks its costs of the proceedings and its motion.

Applicability of the WIM Act & Procedural Requirements

1. [9]

   It is a salient feature of this claim that neither party accepts that the work injury damages regime established by the WCA and the WIM Act applies. They are in furious agreement about that. The first defendant vigorously denies that it was the employer of the plaintiff. Perhaps for reasons relating to the work injury damages regime under the WCA, the plaintiff’s claim as originally formulated was in negligence as regulated by the Civil Liability Act 2002 (NSW).

2. [10]

   In the years since the commencement of proceedings, the position has shifted. The plaintiff’s current position, following advice from senior counsel (see Kwiatkowski v Plum Pictures Limited (No 2) [2025] NSWSC 435 (“Kwiatkowski (No 2)”), is that she seeks to advance a claim under the WCA in the alternative. The first defendant’s position now is that if the plaintiff has suffered any injury for which it may be legally liable falling within the scope of the WCA, the plaintiff has failed to comply with the terms of the WIM Act and thus the proceedings should be dismissed or struck out.

3. [11]

   The applicability of the work injury damages regime is a substantive matter in issue between the parties which should properly be determined by the trial judge. I will make no finding about its applicability on this occasion.

4. [12]

   However, to the extent that the plaintiff seeks to rely upon it as an alternative, it is clear that she is in breach of the procedural requirements imposed by Chapter 7 of the WIM Act. That legislation imposes a regime which regulates the pre-litigation steps required of a plaintiff.

5. [13]

   The real question in dispute is: given the plaintiff wishes to raise a work injury damages claim even in the alternative, but she is non-compliant with the WIM Act regime, what should happen to these proceedings? As explained above, the plaintiff seeks an adjournment and leave to rectify its deficiencies, whereas the first defendant agitates for a dismissal.

Authorities

1. [14]

   In Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32 (“Berowra Holdings”), the High Court considered the effect of non-compliance with section 151C of the WCA on the Court’s jurisdiction. Relevantly, section 151C imposed a requirement that proceedings for work injury damages were not to be commenced until 6 months had elapsed after notification of the injury to which the WCA applied. In that case, proceedings had been issued in contravention of the section, but the defendant did not take the point until the eve of hearing when the plaintiff sought to accept an offer of compromise which the defendant had served. The defendant sought to argue that proceedings commenced in contravention of section 151C and all steps taken in them were a nullity and must be dismissed.

2. [15]

   The view of the High Court (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) was as follows:

3. [16]

   Their Honours said that section 151C “postpones the remedy”, rather than “denying or severely impairing the plaintiff’s rights”: Berowra Holdings at [26]. But their Honours also noted ‘the effect of non-compliance with s 151C will depend in each case upon the actions of the defendant in the context of the relevant Rules of Court’ (my emphasis): Berowra Holdings at [37]. Their Honours also said (at [39]):

4. [17]

   My Attention was likewise drawn to the decision of the Court of Appeal in Wattyl Australia Pty Ltd v McArthur (2008) 74 NSWLR 229; [2008] NSWCA 326 (“Wattyl”). Beazley JA (as Her Excellency then was) wrote separately from, but concurring with the orders proposed by, Young CJ in Eq (with whom Grove J agreed). Beazley JA’s statements of principle, however, are particularly apposite to this case.

5. [18]

   The Court of Appeal held in that case that proceedings, which were filed in contravention of the WIM Act, should be dismissed. The first defendant pointed to this decision in support of its proposition that compliance was “mandatory”. With respect, I do not agree that is the necessary result. Beazley JA at [87]-[88]:

6. [19]

   The effect of the authorities adverted to above is to preserve the discretion of the Court as to whether a proceeding should be dismissed for lack of compliance. Non-compliance may erect a procedural barrier to final relief, but not necessarily so, as the result in Berowra Holdings demonstrates.

7. [20]

   Being satisfied that the decision whether to dismiss proceedings is indeed discretionary, I will now consider where the proper exercise of my discretion leads.

Consideration

1. [21]

   As is clear from both Berowra Holdings (at [37]) and Wattyl (at [88]), the conduct of the defendant will be, perhaps centrally, relevant to the exercise of discretion to dismiss the proceedings. But many factors are involved including unfair prejudice to the plaintiff.

2. [22]

   The procedural history of this matter, to which I have referred above, is relevant to the exercise of my discretion. These proceedings have dragged on for many years, and in fairness, the pleadings have washed through more than one cycle of reformulation. It is significant that [42] of the first defendant’s Defence to the Further Amended Statement of Claim, filed 5 June 2023, is the first time that the first defendant raised that the plaintiff’s proceedings fall foul of the procedural requirements in the WIM Act. Even then it was raised only in the alternative, and no step was taken to act on the matter by moving the court for a dismissal of the proceedings. I accept there were conceptual difficulties where, as here, the first defendant denies the plaintiff is its worker or deemed worker. Moving for dismissal may possibly involve a degree of approbation and reprobation rendering the application difficult to sustain. But if it can be done now, it could have been done then. And during the further period of two additional steps have been taken and costs incurred by both sides. These steps included the matter being listed and prepared for hearing even though it was necessary for the hearing be adjourned: Kwiatkowski (No 2).

3. [23]

   I accept that the plaintiff’s conduct of the proceedings has not been characterised by forensic diligence. But acceding to a dismissal application now when time for bringing the proceedings expired so long ago may work incurable substantive prejudice in circumstances where there is no evidence before me that she is personally responsible for the delay.

4. [24]

   I have regard to the overriding purpose as provided by section 56 of the Civil Procedure Act 2005 (NSW). To my mind, a dismissal of these proceedings would only serve to exacerbate the already substantial delay (and I suspect costs) which have been generated by this matter, without providing any real resolution of the substantive matters in dispute. I am of the view that dismissal without giving the plaintiff the opportunity to mend her hand under WIM Act would be inimical to the interests of justice to such a degree that the administration of justice could well be brought into disrepute.

5. [25]

   While these proceedings could certainly not be characterised as having been conducted with appropriate efficiency or in any other desirable fashion to date, I do not consider that they reach the high bar of an “abuse of process”. The delay is very undesirable, but it has not yet quite risen to a level which makes the proceedings abusive for that reason alone.

6. [26]

   I refuse to make the orders sought by the First Defendant’s Notice of Motion. However, given what I will refer to below in relation to the Plaintiff’s Notice of Motion, I will adjourn this motion so that it remains on foot, with the intention that the first defendant may reagitate this motion should the plaintiff fail unreasonably to comply with Chapter 7 within the time which I will allow.

Plaintiff’s Motion

1. [27]

   That being said, the case cannot proceed in its current form. While the plaintiff seeks an adjournment of proceedings, I am more inclined to make an order (which I note I am empowered to do by the terms of rule 36.1 of the UCPR) for a stay of proceedings until further order under section 67 of the Civil Procedure Act 2005 (NSW). Such an order will give the plaintiff time for fulfilment of the requirements of Chapter 7 of the WIM Act but should also protect the defendant in the interim. I will otherwise dismiss the motion.

2. [28]

   Given all I have referred to above, I consider that this is a case that is appropriate for a level of judicial case management. I will list this matter before me for mention in August for the purpose of reviewing the steps taken by the plaintiff. By then I would expect that the plaintiff will have had more than ample opportunity to comply with the steps necessary under Chapter 7 of the WIM Act. If when the matter returns to court my expectation is not satisfied, I require the plaintiff’s solicitor to provide an affidavit setting fully in chapter and verse each and every step taken since the matter was adjourned on 2 May 2025 to comply and a full and satisfactory explanation for the further delay. I also firmly expect the plaintiff to attend court personally on that date.

Other Motions

1. [29]

   There are two other notices of motion which are extant in these proceedings. The first is the first defendant’s motion of 3 March 2025 to adduce evidence by way of AVL, and the second is the plaintiff’s motion of 14 March 2025 seeking leave to rely upon further evidence.

2. [30]

   Given the present state of these proceedings, I consider it unnecessary to deal with either. They are more suitably addressed once the proceedings are in a position to be finally determined. Circumstances are bound to have changed, possibly materially by then.

3. [31]

   I will adjourn both of these motions.

Costs

1. [32]

   While I am refusing the relief sought the first defendant’s notice of motion of 25 June 2025 at this stage, I note that both parties have enjoyed partial success in practical terms. Consequently, I consider that the proper costs order is that each party’s costs are costs in the cause.

Orders

1. [33]

   I therefore make the following orders:

   1. (1)

      Pursuant to section 67 of the Civil Procedure Act 2005 (NSW), these proceedings are stayed until further order of the Court.

   2. (2)

      This matter is listed for mention before me on 6 August 2026.

   3. (3)

      Otherwise, the plaintiff’s motion filed 27 March 2025 (as amended on 16 May 2025) is dismissed.

   4. (4)

      The plaintiff’s motion filed 14 March 2025 is adjourned for mention on 6 August 2026 before me.

   5. (5)

      The first defendant’s motions of 3 March 2025 and 27 June 2025 are adjourned for mention on 6 August 2026 before me.

   6. (6)

      Each party’s costs of 9 April 2025, 2 May 2025, 13 June 2025 and 17 November 2025 including reserved costs are costs in the cause.