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[2023] NSWSC 338

Troy Borg v Scentre Shopping Centre Management Pty Ltd

(1) The proceedings against the second defendant are struck out. (2) The plaintiff is to pay the second defendant’s costs of the proceedings including the costs of the notice of motion filed on 31 January 2023.

Catchwords

CIVIL PROCEDURE — Commencement of proceedings — Statement of claim — notice of motion seeking leave to file further amended statement of claim — where proceedings have been on foot since 2019 — where plaintiffs comprise a group which operates waste management facilities — where dispute regards use of property in Goulburn as waste disposal depot — whether to join proposed fourth plaintiff to proceedings — Civil Procedure Act 2005 (NSW), s 56 — leave denied CIVIL PROCEDURE — Pleadings — Amendment — where current pleading does not identify parties to bridging finance — leave to amend granted CIVIL PROCEDURE — where evidence filed is deficient and requires updating and extension — where plaintiffs propose timetable for service of evidence — plaintiff to meet timetable and matter to be listed for directions COSTS — Party/Party — plaintiffs to pay defendant’s costs occasioned by amendments

Cases cited

  • Yildiz v Fullview Plastics Pty Ltd[2019] NSWWCC 10

Judgment

  1. [1]

    The plaintiff, acting for himself, commenced proceedings by filing a statement of claim on 5 September 2022. There are two defendants. The first defendant is the shopping centre where the plaintiff was working on 28 June 2016 when he slipped and injured himself. The second defendant was his employer.

  2. [2]

    On 31 January 2023 the second defendant filed a notice of motion seeking an order that the proceedings be struck out against it because the plaintiff had failed to comply with an assortment of conditions contained in the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the WIM Act) as well as a provision in the Workers Compensation Act 1987 (NSW) (the WCA).

  3. [3]

    The motion is supported by an affidavit of Ms Robyn Hickie dated 31 January 2023.

  4. [4]

    The plaintiff resisted the motion. Essentially, he is hopeful that he will meet the pre-conditions necessary for his claim. To this end, at the commencement of the hearing today, the plaintiff sought an adjournment in order to follow up medical advice he has been given which might result in a finding of a 15% whole person impairment. The significance of such a finding will be evident below.

  5. [5]

    The second defendant opposed the adjournment, pointing out that even if the above finding was made, it would not rescue the current proceedings. Regrettably, because the second defendant is correct, I refused the adjournment.

  6. [6]

    This case is a clear example of the need for legal advice in order to tackle the procedural complexities involved in the commencement of a claim for work injury damages.

  7. [7]

    I will approach the matter through each of the sections that the second defendant says have been breached, or not met, by the plaintiff.

  8. [8]

    Starting with the WIM Act:

  9. [9]

    Section 151H of the WCA has been referred to above. It places a bar on the recovery of damages where there has not been an assessment of permanent impairment of at least 15%. By itself the section does not prevent the filing of proceedings for work injury damages. However, as seen above, when read with s 313 of the WIM Act, the permanent assessment of at least 15% must have been resolved before proceedings are commenced.

  10. [10]

    The result of the above analysis of the sections relied upon by the second defendant is that while some of the sections do not prevent the filing of a statement of claim, other sections do not permit the filing. The breach of the latter sections in this matter dictates that the statement of claim against the second defendant must be struck out.

  11. [11]

    The plaintiff resisted a costs order on the basis that he has no funds. Unfortunately, I do not think I can refuse the order simply for this reason.

  12. [12]

    I make the following orders:

    1. (1)

      The proceedings against the second defendant are struck out.

    2. (2)

      The plaintiff is to pay the second defendant’s costs of the proceedings including the costs of the notice of motion filed on 31 January 2023.

Unofficial copy. Source: NSW Caselaw. Refer to the official version for authoritative text.