In the case of Petreski v The Ors Group Pty Ltd  NSWDC 417 (Petreski), the defendant succeeded in having the plaintiff's statement of claim struck out as it was materially different to the pre-filing statement.
Sections 315 and 318 of the 1998 Act prescribes the content of a pre-filing statement and pre-filing defence. In the case of a plaintiff's pre-filing statement, the plaintiff must set out particulars of the claim and the evidence they will rely on to establish or support the claim. The plaintiff is to serve a proposed statement of claim and the employer/defendant is to serve a proposed defence to the claim with its pre-filing defence.
Section 318 (1) (a) of the 1998 provides that a plaintiff is not entitled to file a statement of claim that is materially different from the proposed statement of claim served with the pre-filing statement, except with leave of the court. Likewise, a defendant cannot file a defence which is materially different to the proposed defence served with the pre-filing defence.
In Petreski, the plaintiff made a work injury damages claim against the defendant, alleging she had sustained a psychological injury in the course of her employment. In the pre-filing statement, the plaintiff's claim was based upon the defendant owing her a non-delegable duty of care (a source of direct liability).
Following an unsuccessful mediation of the claim, the plaintiff commenced proceedings in the District Court. The statement of claim added new allegation the defendant was vicariously liable for the actions of its employees.
The defendant filed a notice of motion seeking to strike out the statement of claim pursuant to section 318 (1) (a) of the 1998 Act, on the basis it was materially different to the pre-filing statement, as it contained a new cause of action (the vicariously liability allegation).
The parties in Petreski disagreed about whether there was a "material" difference between the pre-filing statement and statement of claim.
The 1998 Act does not provide a definition of what a "material difference" is and does not provide any guidance on the extent of differences that must be present between the pre-filing statement and statement of claim for it to be considered "materially different".
In considering the motion, DCJ Abadee looked at the ordinary meaning of 'material', as something which is 'important, essential or relevant'.
As section 318 of the 1998 Act refers to the content of a pleading, DCJ Abadee looked to Part 14 of the Uniform Civil Procedure Rules (UCPR). Rule 14.7 states that pleadings must only contain a summary of the material facts on which the party relies and not the evidence by which those facts are to be proved. Rule 14.14(1) also requires the plaintiff plead any matter that, if not plead specifically, may take the defendant by surprise.
DCJ Abadee referred to the Court of Appeal's decision in Kirby v Sanderson Motors Pty Ltd (2002) 54 NSWLR 135 (Kirby). The Court of Appeal found while the UCPR Rules 14.7 and 14.14 did not expressly require causes of action be stated in the pleadings, the word 'material' meant the facts material to the cause or causes of action relied on. Further the requirement of a statement of material facts to be included does not exclude the allegations of legal categories such as duty of care, and the general requirement to avoid surprise. This means the material facts must be stated in such a way the defendant could understand how the facts were material to a cause of action.
In Petreski the plaintiff argued that it was obvious when a plaintiff brought a claim against an employer, it specifically contemplated that it was made on the basis of vicarious liability. DCJ Abadee disagreed with this argument and found there was a material difference between an action based upon a non-delegable duty of care (direct liability) and one of vicarious liability. He referred to the decision in Kirby v Sanderson Motors Pty Ltd (2002) 54 NSWLR 135, stating it was necessary for the avoidance of surprise for a plaintiff to identify the source of liability, when linked to the facts giving rise to it. He noted the plaintiff acknowledged this when a reference to vicarious liability was inserted into the statement of claim.
DCJ Abadee concluded there only needed to be one material difference between the pre-filing statement and statement of claim for there to be a material difference. DCJ Abadee ordered the statement of claim be struck out pursuant to section 318(1)(a) of the 1998 Act.
The defendant had also detailed a number of other differences between the pre-filing statement and statement of claim. DCJ Abadee considered it was unnecessary to look at these differences, however he would not have found they were material differences but matters of evidence which were unnecessarily inserted into the pleadings.
There are two important lessons to be learnt from this case. Firstly, it establishes there only needs to be one material difference between the pre-filing statement and statement of claim for it be 'materially different' for the purposes of section 318 (1) (a) of the 1998 Act. Secondly, it highlights the need to comprehensively plead all causes of action in the pre-filing statement. For defendant's it also highlights the requirement for all defences to be pleaded in the pre-filing defence, to avoid their defence being struck out pursuant to section 318(1)(b) of the 1998 Act which imposes the same requirements on the defendant for the pre-filing defence to be the same as the defence filed in Court.
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