Supreme Court New South Wales Medium Neutral Citation: Troy Borg v Scentre Shopping Centre Management Pty Ltd [2023] NSWSC 338 Hearing dates: 5 April 2023 Date of orders: 5 April 2023 Decision date: 05 April 2023 Jurisdiction: Common Law Before: Elkaim AJ Decision: (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 Category: Procedural rulings Parties: Troy Borg (Plaintiff) Scentre Shopping Centre Management Pty Ltd (First Defendant) Australian Guarding Services Pty Ltd (Second Defendant) Representation: Counsel: T Borg (Self-Represented) A Parker (Second Defendant) Solicitors: Mills Oakley (First Defendant) Moray & Agnew Lawyers (Second Defendant) File Number(s): 2019/00088457 Publication restriction: Nil Choose JUDGMENT 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. 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. The motion is supported by an affidavit of Ms Robyn Hickie dated 31 January 2023. 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. 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. 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. 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. Starting with the WIM Act: 1. Section 280A states that: "A claim for work injury damages in respect of an injury cannot be made unless a claim for lump sum compensation in respect of the injury is made before or at the same time as the claim for work injury damages." 1. Although not worded explicitly, the relief claimed in the statement of claim is obviously a claim for work injury damages. A claim for lump sum compensation is a claim under s 66 of the WCA, Yildiz v Fullview Plastics Pty Ltd [2019] NSWWCC 10 at [21]. 2. A claim under s 66 does not appear to have been made. Therefore, no claim for work injury damages can be made. This section supports the striking out of the statement of claim against the second defendant. 3. Section 280B states: "(1) An injured worker cannot recover damages in respect of an injury from the employer liable to pay compensation under this Act in respect of the injury unless and until any permanent impairment compensation to which the worker is entitled in respect of the injury has been paid. (2) This section does not prevent a claim for damages from being made before any permanent impairment compensation to which the worker is entitled in respect of the injury has been paid." 1. In contrast to s 280A, this section prevents the recovery of damages as opposed to a claim for damages. Therefore, without more, the claim for damages may be made before permanent injury compensation has been received. Accordingly, I do not think there has been a breach of this section. 2. Section 282(1) states: "(1) The relevant particulars about a claim are full details of the following, sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant's full entitlement on the claim— (a) the injury received by the claimant, (b) all impairments arising from the injury, (c) any previous injury, or any pre-existing condition or abnormality, to which any proportion of an impairment is or may be due (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act), (d) in the case of a claim for work injury damages, details of the economic losses that are being claimed as damages and details of the alleged negligence or other tort of the employer, (e) information relevant to a determination as to whether or not the degree of permanent impairment resulting from the injury will change, (f) in addition, in the case of a claim for lump sum compensation, details of all previous employment to the nature of which the injury is or may be due, (g) such other matters as the Workers Compensation Guidelines may require." 1. The claim referred to in this section encompasses both a claim for work injury damages and the claim for lump sum compensation. Ms Hickie, in her affidavit, annexes a letter sent to the plaintiff telling him that he has not provided the above particulars. She does not specifically say that he did not respond with provision of the particulars, but that is the clear inference of her affidavit. However, once again, I do not see the failure to provide the stipulated particulars as a bar to the filing of a statement of claim although it may well be an obstacle to the recovery of work injury damages. 2. Section 313 states: "If there is a dispute as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages, the claimant cannot commence court proceedings for the recovery of work injury damages and cannot serve a pre-filing statement under Division 3 unless the degree of permanent impairment has been assessed by a medical assessor under Part 7." 1. This section refers back to s 151H of the WCA which says that work injury damages cannot be awarded unless the injury to the plaintiff has resulted in a degree of permanent impairment of at least 15%. 2. In his written submissions the plaintiff acknowledges that he has not received a permanent impairment assessment of at least 15%. However, he says that he is waiting for the report of an "independent specialist doctor" and that he feels "sure there is 15% permanent impairment". 3. Whatever the specialist doctor may opine, the fact is that the plaintiff has commenced court proceedings, which is not permitted by s 313 of the WIM Act. This is another factor in favour of the second defendant. 4. Section 314 relates to whether or not, for the purposes of s 313, there is a dispute. In this case the second defendant has not accepted "that the degree of permanent impairment of the injured worker resulting from the injury is at least 15%". Clearly the dispute contemplated by s 313 exists. 5. Section 315(1) states: "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 Commission rules may require." 1. As I understand Ms Hickie's affidavit and the attached letter, no pre-filing statement has been served. This is a section that dictates that action before the commencement of proceedings. The action was not taken; the proceedings should not have been filed. 2. Section 318A states: "(1) A claimant must refer a claim for work injury damages for mediation under this Division before the claimant can commence court proceedings for recovery of those work injury damages. The claim cannot be referred for mediation until at least 28 days after the pre-filing statement has been served on the defendant under Division 3. (2) The claimant need not refer a claim for work injury damages for mediation if the defendant has failed to respond to the claimant's pre-filing statement as required under Division 3 within 42 days after it is served on the defendant. (3) The defendant may decline to participate in mediation of the claim if the defendant wholly disputes liability in respect of the claim, but in any other case the defendant cannot decline to participate in mediation. (4) Court proceedings for recovery of work injury damages cannot be commenced while the claim is the subject of mediation in the Commission. (5) A claim is referred for mediation by being referred to the President for mediation by a mediator. The President is to give directions as to which mediator is to mediate on a particular claim referred for mediation. (6) The Commission rules may make provision for or with respect to mediation under this Division." 1. The plaintiff has not referred the claim to mediation. The plaintiff can take no comfort from subsection (2) because, as seen above, he has not filed a pre-filing statement. Once again proceedings were not able to be commenced. 1. 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. 2. 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. 3. 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. 4. I make the following orders: 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. 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