Peter Hunt, Principal of McCabes Lawyers shares his insight regarding personal injury commission and judicial power.
Background
Division 3.2 of the Motor Accident Injuries Act 2017 (MAIA) recognises that the Personal Injury Commission (PIC) may not exercise federal jurisdiction.
In very general terms, this precludes the PIC from exercising the judicial power of the Commonwealth to resolve disputes between residents of different States, the governments of different States or a resident of one State and the government of another State.
If a dispute before the PIC is federally impacted, the parties must seek an order for substituted proceedings in the District Court by making a compensation matter application under s 26 of the Personal Injury Commission Act 2021 (the PIC Act).
Delegates who attended the Legalwise Motor Accident and Workers Compensation Symposium on 29 November 2022, will recall that I provided an update on the kinds of disputes which would involve an exercise of federal jurisdiction.
I reviewed three District Court Decisions – Ritchie v Nominal Defendant (5 Nov 2021, Gibb DCJ), Stanton v Winning [2022] NSWCA 104 and Condon v Bartley [2022] NSWCA 282 – and concluded that the PIC was only precluded from assessing:
- Disputes between an interstate claimant and the NSW Nominal Defendant.
- Disputes between a NSW resident and an interstate State-owned CTP insurer (ie: vehicles registered in Victoria, Western Australia or Tasmania).
- Disputes between an interstate resident and a State-owner insurer from a different State.
Administrative Power or Judicial Power?
I hope delegates will also recall that I cautioned that, whilst my conclusions were accurate on the day of the Symposium, the position may soon change once two anticipated District Court decisions were handed down.
Those decisions have now been delivered and what was expected has come to pass.
In Rafiqul Islam v Transport Accident Commission of Victoria and Heather Worldon v Transport Accident Commission of Victoria [2022] NSWDC 582, Weber SC DCJ was called upon to decide whether the PIC’s functions were administrative or judicial.
His Honour determined that the PIC does not exercise judicial power when assessing a claim for damages under sub-division 2 of Division 7.6 of MAIA for reasons including:
- A claims assessment does not ‘determine’ or ‘quell’ the controversy between the claimant and the insurer because a decision on liability is binding on neither party (s 7.38(1)) and a decision on quantum is only binding on the insurer where the insurer accepts liability and the claimant accepts the quantum assessment within 21 days (s 7.38(2)).
- The claims assessment function is not transformed into a judicial function merely because the PIC is applying both a statute and the common law.
- The nature of the Commission is administrative for various reasons including that not all Members are legally qualified, the proceedings are conducted with as little formality as possible and the rules of evidence do not apply.
His Honour made a similar finding that the PIC does not exercise judicial power when assessing a medical dispute under Division 7.5 of MAIA for various reasons, including:
- The medical dispute may be referred for further assessment, at any time, by a court, a merit reviewer or the PIC (ss 7.23 and 7.24).
- The Court may reject a medical certificate on the grounds of denial of procedural fairness if satisfied that the admission of the certificate would cause substantial injustice (s 7.23).
- The fact that a medical dispute can be referred for further assessment or rejected by the Court demonstrates that the medical assessor is not `quelling’ the controversy between the parties.
These conclusions are consistent with the obiter delivered by the Court of Appeal in Searle v Macgregor [2022] NSWCA 213, where Kirk JA, with whom Bell CJ and Ward P agreed, characterised a damages assessment by the PIC as “an advisory opinion” [38].
No Exercise of Federal Jurisdiction
If the PIC only exercises administrative power in damages assessments and in medical assessments, it follows that the PIC does not exercise any kind of judicial power, much less the judicial power of the Commonwealth.
The result is that the PIC will never exercise federal jurisdiction – even when the dispute involves the kind of interstate elements described in the three bullet-points in the first section of this article – and no party will ever have to bother the District Court with a compensation matter application pursuant to s 26 of the PIC Act.
What About Miscellaneous Assessments?
The District Court in Ibrahim & Worldon was not called upon, however, to address whether the PIC is exercising an administrative power or a judicial power when conducting a miscellaneous claims assessment under Sub-division 3 of Division 7.6 of MAIA. This could be important given the disputes in the miscellaneous assessment bucket include most-at-fault disputes which affect an injured person’s ongoing entitlement to weekly benefits and treatment/care, even if seriously injured.
The issue is complicated by the fact that s 7.42(3) provides that a miscellaneous assessment is binding in a statutory benefits claim and, as such, a miscellaneous assessment certificate – unlike a damages assessment or a medical assessment – does act to “quell” the dispute between the parties.
On the other hand, the other indicia of administrative power cited by Weber SC DCJ regarding damages assessments – including the informality of the proceedings – applies equally to miscellaneous assessments.
It seems likely that, if called upon, a Court would find that all the functions exercised by the PIC are administrative and not judicial.
Peter is a Principal of McCabes Lawyers and a member of the McCabes Statutory Insurance Group. His team was recognised by Doyle’s Guide, based on industry feedback, as a First Tier Defendant CTP Law Firm in 2019, 2020, 2021 and 2022. Peter is the driving force behind the popular podcast series, The Proper Lookout Podcast, now boasting over 125 episodes. He authored the CCH Motor Accident Practitioners’ Handbook from 2001 to 2016. He was a CARS Claims Assessor from 2004 to 2009. Peter is an Accredited Specialist in Personal Injury and has served on the NSW Specialist Accreditation Advisory Committee since 2011. He is also an NMAS accredited Mediator with a focus on workplace and common law mediation. Connect with Peter via LinkedIn
