Craig Bell and Samuel Stern | December 2013 | Employers Liability
In November 2013, the NSW Workers Compensation Commission (WCC) issued an E-bulletin as to how a matter is to proceed when it is unprepared at a teleconference. This E-bulletin was issued due to an increasing number of matters not being ready to proceed in the WCC at the teleconference stage. The WCC has reminded parties that pursuant to Rule 15.8 of the WCC Rules, a matter can be dismissed for want of due dispatch.
The Law Pursuant to Section 354(7A) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the WCC may dismiss proceedings if: a) they have been abandoned; or b) they are frivolous or vexatious or misconceived or lacking substance; or c) for any other reason.
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When can a matter be struck out in the Workers Compensation Commission?
Rule 15.8 of the WCC Rules is based on s354(7A)(c) of the 1998 Act and allows for the dismissal of proceedings if an applicant fails to prosecute proceedings with due dispatch. Rule 1.6(4) allows the WCC to strike out proceedings where the Rules have not been adhered to.
Case Law In Lennox Rajokone and Christie’s People Pty Limited [2012] NSWWCC77 (‘Rajokone’), the WCC considered the circumstances of when a matter before the WCC can be struck out. Arbitrator Moore ordered that the proceedings be struck out in accordance with 1.6(4) and 15.1 of the WCC Rules with no order as to costs. Arbitrator Moore provided the following detailed reasoning: • That at the teleconference on 19 January 2012 the Arbitrator issued a direction to the applicant to file a schedule quantifying the claim with relevant supporting material no later than 24 February 2012. • The applicant did not comply with the direction. • At the arbitration hearing on 9 March 2012, the counsel for the applicant handed the Arbitrator the applicant’s submissions and the applicant’s further wage schedule, which was also handed to the respondent.
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• Counsel for the respondent sought instructions and indicated the respondent was unable to meet the claim as framed. • The applicant sought to proceed in any event. • The applicant had not adhered to the direction of the Arbitrator and had not prepared the proceedings until the Arbitration. Clearly there was significant delay in prosecuting the proceedings. Thus the proceedings were struck out by the Arbitrator in accordance with Rules 15.1 and 1.6(4) with no order as to costs.
Conclusion In conclusion, the decision in Rajokone and the renewed focus of the WCC may prevent the filing of poorly prepared claims and notify the applicants’ solicitors of the need to prepare their proceedings properly.
Who does this impact? In our view, the WCC’s renewed focus on unprepared matters affects applicants and will make their solicitors more diligent in preparing their claims prior to a teleconference. As for insurers and their representatives, they need to be prepared to make a strike out application at teleconferences and Arbitrations in appropriate matters.
What action should be taken? The representatives of the insurers should review the ARD closely and identify a lack of supporting evidence such as a lack of medical evidence or statements. In an appropriate matter they should seek to have the matter struck out for want of due despatch pursuant to Rule 15.8 of the WCC Rules. If the representatives are unsuccessful in having the matter struck out at the teleconference, they should obtain a direction for the applicant to provide particulars of the claim well prior to the arbitration. This may avoid any prejudice to the respondent in the preparation of the arbitration.
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When can a matter be struck out in the Workers Compensation Commission? Craig Bell and Samuel Stern | December 2013
For more information, please contact: Craig Bell Partner T: 02 8257 5737 M: 0418 673 112 craig.bell@turkslegal.com.au
Samuel Stern Lawyer T: 02 8257 5755 M: 0422 640 165 samuel.stern@turkslegal.com.au
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