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Time not to run for commencement

pre-filing statement struck out ... "There are sound policy reasons for the inclusion of s 151DA(3) in the 1987 Act. Its inclusion in the Act is to provide the parties with sufficient time to finalise the pre litigation phase of the proceedings. It brings a degree of certainty to the process and enables the parties to explore resolution and/or mediation of the claim, before embarking on litigation.

S 151DA(3) provides that an application to strike out a pre-filing statement may not be made until at least six months have elapsed after the defendant has served on the claimant a defence to the claim in accordance with s 316 of the 1998 Act.

This application was filed on 9 September 2008, ten days before the defence to the pre-filing statement was served on 19 September 2008.

Clearly the six months preclusion period on the filing of an application to strike out the claimant pre filing statement has not elapsed"[29]:

Luke v Frank William McCarthy &c [2008] NSWWCCPD 12, per Keating P, 23.10.08, finding the application breached s 151DA, obliging dismissal.

 

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