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Strike out

Goodman-Shaw v Young Services and Citizens Club Co-operative Limited t/as Young Federation Motor Inn [2010] NSW WCC 294. Tanner, Arb. 1.7.10:

12. The Applicant’s representative submitted that he is a busy practitioner with many files that involve more than disputes about workers compensation.  The Applicant should not be prejudiced because the Applicant’s representative has taken more work than he is capable of attending to in a competent manner.  In any event, this is no excuse for failing to attend to the elementary preparatory steps which those who act for workers routinely take in this jurisdiction.

13. Given that the matter was not ready to proceed in the ordinary course, and that there was no valid reason for departing from the norms that have been established in this jurisdiction, I advised the parties that I would be striking the matter out.

14. The Applicant was, by reason of Regulation 10.2 of the Workers Compensation Rules 2006, bound to serve, within seven days of registration of the Application to Resolve a Dispute by the Registrar, a sealed copy on the insurer that had an interest in the injuries which the Applicant claims to have sustained prior to 31 December 2004.

15. The effect of the failure of the Applicant’s representative is addressed by Rule 10.2(7) of the Workers Compensation Commission Rules 2006 [note replaced by WCC Rules 2010]:

“(7) Subject to subrule (2), where in respect of an Application to Resolve a Dispute:(a) a respondent has not lodged a Reply in accordance with these rules, and(b) the applicant has not lodged a certificate of service, certifying service of the application on that respondent in accordance with these rules, the proceedings as against that respondent are deemed to have been struck out, and no further statement may be taken in the proceedings unless the proceedings are restored.”

16. The rules define a “respondent” as meaning a person “who is a party to a dispute other than the applicant”. The term “party” is defined as meaning “a party to proceedings”, the latter being defined further as including “the insurer of an employer”.

17. Having failed to  investigate the identity of the Respondent’s insurer for the period preceding 31 December 2004, the Applicant’s representative failed to serve the Application on that insurer, or  (therefore)  to lodge a certificate of service, certifying service on that insurer.

18. In the circumstances, my striking out of the application  is in accordance with  the consequences contemplated by subrule 7 of Rule 10.2 of the Commission’s Rules.

19. Subrule (4) of Rule 1.6 provides:

“(4) If a provision of these rules is not complied with in relation to the commencement (or purported commencement) of proceedings or conduct of proceedings, the Commission may determine that the proceedings are, or any step taken in the proceedings is, a nullity, in which case the Commission may strike out the proceedings or any such step.”

20. I formally determine that the Application to Resolve a Dispute lodged by the Applicant on 23 April 2010, and registered by the Commission on 28 April 2010, is a nullity within the contemplation of subrule (4) of Rule 1.6.

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