Petreski v The Ors Group Pty Ltd [2019] NSWDC 417

District Court New South Wales

Medium Neutral Citation: Petreski v The Ors Group Pty Ltd [2019] NSWDC 417 Hearing dates: 9 August 2019 Date of orders: 09 August 2019 Decision date: 09 August 2019 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 26. Catchwords: WORKERS' COMPENSATION – proceeding to obtain compensation – work injury damages – whether statement of claim materially different to draft pleading attached to plaintiff's pre-filing statement – meaning of "materially different" in context of attached pleading. Legislation Cited: Uniform Civil Procedure Rules Workers Compensation Act 1987 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW) Cases Cited: Hall v Ecoline Pty Ltd t/as Treetop Adventure Park [2018] NSWSC 1732 Kirby v Sanderson Motors Pty Ltd (2002) 54 NSWLR 135 Texts Cited: Australian Concise Oxford Dictionary, 4th ed Category: Procedural and other rulings Parties: Ms Petreski (Plaintiff) The Ors Group Pty Ltd (Defendant) Representation: Counsel: Mr D E Barran (Plaintiff) Mr F Doak (Defendant)

Solicitors: HWL Ebsworth Lawyers (Defendant) File Number(s): 2019/ 53452 Publication restriction: Nil

Judgment

Introduction 1. At all material times, the plaintiff was employed by the defendant as a job placement program customer service officer. The plaintiff brings a claim for damages pursuant to Part 5 of the Workers Compensation Act 1987 (NSW). The essence of her claim is that she has suffered persistent bullying and harassment and that this caused a sustained significant psychiatric injury. 2. On 27 August 2018, the plaintiff commenced a proceeding by filing a statement of claim in this Court. 3. By Notice of Motion filed 4 July 2019, the defendant seeks an order that the plaintiff's proceeding be struck out pursuant to section 318(1)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (hereafter 'the Act'). This is on the basis that the statement of claim is "materially different" from the proposed statement of claim that formed part of the plaintiff's pre-filing statement. 4. The application is opposed. I note also that, in the event that I was to find that the statement of claim is materially different to the pre-filing draft pleading, no application is made, on the plaintiff's behalf, that I should exercise the power in s 318(2) to grant leave to the plaintiff to rely upon the statement of claim on the basis that the material concerned was not reasonably available to the plaintiff when her pre-filing statement was served and the failure to grant leave would substantially prejudice the plaintiff's case. 5. It is pertinent to note, partly by way of explanation of what is to follow, that up until the hearing of this motion, the plaintiff has been unrepresented. At the hearing of this motion, she was however represented by Mr Baran, of Counsel, acting on the basis of a pro bono referral from the New South Wales Bar Association.