President's Address to IRO Sydney Seminar

President's Address to IRO Sydney Seminar

By Judge Gerard Phillips

Wednesday 12 June 2024

UTS Aerial, Broadway Campus

Good morning everybody. I thank the IRO, Jeff Gabriel, for his kind invitation for me to address you today and I acknowledge the Minister, the Hon Anoulack Chanthivong. The Minister has been working closely with us on various matters and there is more work to do over the next while, and I look forward to completing these tasks with the Minister and his office.

PATHWAY

None of you will be surprised that the first matter I will talk about this morning is of course the deployment of our new IT platform, Pathway, into the Workers Compensation Division. We have undertaken the cut over from the old system this King’s Birthday long weekend and the system opened for business one hour ago. I have a text message here saying that the first filings have been made! Well done whoever that was!

This is a big deal and does not happen often. It will set us up for the future. It will help the efficiency of everyone here in this room who conducts their work in the Commission. So please take the time to learn how to use the system.

This has been an important project for the Commission, we are replacing the multiple IT platforms we inherited from the 2 legacy organisations when we were created in 2021, with the one Pathway platform. Users across both Divisions will now just have to navigate the single platform.

I expect that there will be some user issues and teething problems until the new system settles down and users become familiar with it. Please do not expect perfection! This is expected, it happens every time a new IT system is deployed. In time, any user or teething issues will pass.

Knowing this we have put in place help for users. As you know, we have been and are conducting classroom and online learning sessions on the new platform and many of you have undertaken this education.

On our website, there is a comprehensive set of learning modules – if you are having problems this should be your first port of call and they have been designed to walk you through the steps you need to know to operate the system.

Secondly, if you cannot work the issue out for yourself, we will for a time have a dedicated support team ready to assist. You can contact them by email at [email protected] or by calling 1800 PIC NSW (or 1800 742 679) and select Option 2.

Now if you have to file something this week which is time sensitive, for example an appeal period is expiring, please do not worry. During this transition phase this week, we will be accepting everything for filing and if necessary, dispensing with the rules and extending time as the case may be. If you are having trouble filing applications or replies on Pathway for whatever reason, do this. We have uploaded the most commonly used workers compensation forms on the website, just download them, fill them out and email them to us or if you are old school, we are happy (for this week only) to accept hard copies at our Registry desk on level 21.

The key is that we all go forward together on this project and work cooperatively during this period of transition. Nobody’s case will be adversely affected while the new platform settles down and everyone becomes adept at using it. We just need to be kind, calm and patient during this implementation phase.

Remember this is not just the Commission’s IT project, it is being introduced for the benefit of all users into the future. It is really a foundational project to enhance our operations and the conduct of the cases you all bring and defend for years to come.

We do have planned another phase of enhancements to the Pathway Platform during 2024/25, including a digital solution to make the 500-page rule work efficiently. We will keep you advised about these developments in PIC News.

FILINGS – WORKLOAD INCREASE IN WORKERS COMPENSATION MATTERS

It will come as no surprise to anyone at this conference to hear that filings of workers compensation matters in the Commission are way up on what we have experienced for a long period of time. In the past 12 months, first instance filings are up on average by 15%–16%. We will see where this finally lands after the conclusion of the reporting year on June 30. By June 30 we are estimating that over 10,000 workers compensation matters of all types will have been filed in the Commission for the preceding 12 months.

At present, I do not see an end in sight for this level of workload. Since we are at the end of the process, I do confer with scheme participants periodically, mainly to find out what is coming our way. Nobody is telling me that the current filings are a blip or an historical anomaly.

Pre-pandemic, the average number of Form 2s being filed, that is the most commonly filed workers compensation matter, was in the order of 82–85 per week. Some weeks in the last 12 months filings have exceeded 200. The average over the past 12 months is 185 applications of all types, the majority of course being Form 2s.

This is affecting all aspects of workers compensation matters – whether before a member, a medical assessor or an appeal matter. Pleasingly we are clearing more matters each week than are being filed, but this is not sustainable for our decision makers long term. They are working very hard to keep ahead of this surge in their workload.

We are on track to finalise just under 11,000 workers compensation matters for the 12 month reporting period ending 30 June 2024.

So, we are pulling a number of levers to deal with this situation.

I have been and am in the process of recruiting more members. We have completed a recruitment for an additional full-time member to our long standing cohort of full-time workers compensation members and are recommending a number of members for dual appointment to the Attorney General. This is in addition to the 6 new sessional members that started earlier in 2024. As you know, we lost 3 sessional members last year and every year there are retirements. Recruiting is therefore an ongoing activity and in light of the workload burden at present, absolutely essential.

We are recruiting more medical assessors and where possible, qualifying and appointing medical assessors to both Divisions.

Operationally, what I want to see in the future is both members and medical assessors working across both the Workers Compensation and Motor Accidents Divisions. It means that as work ebbs and flows in both Divisions, we can rapidly deploy decision makers to where the increase in work is occurring. It also means that we do not need to wait for a recruitment action to be completed to deal with increases in filings in one Division or the other.

I am recommending the appointment of an additional Acting Deputy President to help with the increase in appeal filings. Whilst the percentage of matters appealed has remained constant, it’s the same percentage of a much larger number of first instance decisions, meaning there has been a significant increase in the raw number of appeals being filed.

When an appeal is filed it takes 12 weeks for pleadings to close and for the matter to then be ready for allocation to a Presidential member. As some of you may know, this wait time has been much longer. My aim is to get the list to a place where generally once pleadings close 12 weeks in, that the matter is allocated and decided in the following 12-week period. This will take some time to achieve, and our Presidential Members are moving through matters as quickly as possible, and we are also identifying matters that may be expedited for quick determination.

For example, as you know, if the appeal is against an interlocutory decision, be ready for a swift oral hearing, particularly if the appeal might hold up an appointment scheduled with a medical assessor, or delay proceedings before a member below. If you are a respondent, expect to be told your submissions are due in 7-14 days and then be ready to turn up for an in-person hearing.

Pathway, once it has settled down in workers compensation, will produce administrative efficiencies that will make dealing with matters more time effective for everyone. I also think that the 500-page rule, which will commence later in 2024 or early 2025, will also alleviate the burden on parties and decision makers alike.

If you have not heard of the 500-page rule, please proceed to the Commission’s website and subscribe to PIC News. It is a rule which introduces a page limitation in filings. You will be given a lot of notice ahead of its introduction and I will be having a lot to say about the practicalities of it later in the year. Just remember this though – THERE WILL BE NO LIMIT ON DOCUMENTS THAT ANYONE NEEDS TO PROPERLY AND FAIRLY CONDUCT AN APPLICATION. What we are doing is moving from a laissez faire system where the parties filed whatever they chose, to a system where greater care needs to be applied upfront in the material filed with applications and replies, and then our decision makers will supervise what is accepted thereafter.

The combination of all these actions should assist in dealing with the increased filings we are seeing and help keep matters flowing through the list.

THE REVIEW OF THE PERSONAL INJURY COMMISSION ACT 2020

Last year the State Insurance Regulatory Authority released its Two-Year Statutory Review into the Personal Injury Commission Act 2020 and it pleasingly found that the objects and terms of the PIC Act generally remain appropriate to achieve our policy objectives.

There were three suggestions provided for the Commission, and I’d like to provide an update on our progress against these.

Suggestion 1 related to informing parties of the Commission’s decision publication policy to encourage early applications for de-identification and/or redaction, and to review information on the Commission’s website to ensure consistency with the terms of rule 132(4) of the Commission Rules. This is a suggestion which we responded to almost immediately. We updated the website and have been engaging both within the Commission and with our external stakeholders to encourage early application. Our fact sheets and videos also cover this topic, and I’d like to take this opportunity to again encourage you to let your clients know they can apply for a decision to be de-identified.

Suggestion 2 in the review was that the Commission may wish to consider developing a data publication policy in relation to the frequency of publication and type of data that is made available to the public. And further, that this include consultation with stakeholders and consideration of submissions to the Review.

This is something that we are still actively working on. We have analysed our existing reporting which is primarily through the Annual Review, and we have undertaken research into what other courts and tribunals report. With Pathway for workers compensation now online, this will allow for enhanced reporting and we are now working through what we can report on and how, acknowledging of course that we are a small tribunal with finite resources. We will continue to keep our stakeholders informed as this work progresses.

The third and final suggestion was that the Commission may wish to consider further opportunities for engagement and consultation with stakeholders, including medical stakeholders and insurers. PIC News is of course a major communications channel for us, it is widely read by all users. We have also produced a series of Fact Sheets and Explainer Videos, which are all up on our website, which provide information to claimants, insurers and users about our operations.

Late last year, we reviewed our stakeholder engagement program and subsequently published a Stakeholder Engagement Framework that you can find on our website. As part of the review, we refreshed our Stakeholder and CTP Insurer Reference Groups and have been working to determine if we should also establish a reference group for self-insurers. This work is ongoing. And, of course, we have amped up our engagement on changes to the Commission’s rules and procedural directions, as evidenced by our comprehensive engagement program on the 500-page limit.

SKATES v HILLS INDUSTRIES LTD [2021] NSWCA 142 (Skates)

Given the vast number of lawyers present here today, I do want to touch upon a few legal principles that I think are very much worth your attention.

The first is the Court of Appeal decision in Skates. This is a relatively common issue arising before our members, medical assessors and on appeal.

Before turning to Skates, you need to bear this in mind about the Commission - the Commission, unlike the common law courts, does not possess inherent jurisdiction. Rather the Commission’s authority to decide matters is vested in it by the statutes that give us the power to adjudicate a defined portfolio of disputes.

Skates was about a workers compensation medical dispute. The conflict was about precisely the body parts disputed and referred for assessment. Leeming JA said the following:

(a) The starting point is a “medical dispute”, that is, a dispute between a claimant and the person on whom the claim is made about any of the 7 subject matters in s 319 of the 1998 Act. Critically his Honour said that “as a consequence of the ordinary operation of the regime at least in most cases the dispute will have been identified by a written exchange of competing claims.” (at [44])

(b) The “fundamental legal concept is a dispute. In the absence of a dispute, the worker and the insurer would not need to go to the Commission.” (at [48])

(c) “[T]he purpose of the statutory regime [is] to resolve a medical dispute and … a dispute is identified by the disputants’ competing claims.” (at [50])

So the take out is this - the exchange of the claim and the s 78 notice in reply and the supporting documents need careful examination before you file in the Commission. You must identify what exactly is the dispute. You do not want to get way down the track in an application only to find that you cannot proceed with all or part of a claim. Whether we have jurisdiction is not a question usually flagged in a s 78 notice. If there is no power, there is no power and this could come up at any time in a proceeding.

Whether the Commission has the power to hear the particular dispute is a fundamental question that must be addressed. I would commend a close reading of Skates to you, as a working knowledge of it is fundamental to practise in the Commission. I would remark for those of you who also practise in motor accidents matters, that a similar decision of the Court of Appeal has been delivered earlier this year in Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71.

ANSHUN ESTOPPEL

There have been quite a number of Anshun decisions over the past 5 years. Simply put, the Anshun estoppel doctrine precludes a party from asserting in later proceedings a claim or issue of law or fact, which, having regard to all the circumstances, was so connected to the subject matter of the earlier proceedings that it could and ought to have reasonably been brought in earlier proceedings.

In Miller v Secretary, Department of Communities and Justice [2022] NSWCA 190 (Miller No 10), the Court of Appeal was asked to decide whether the common law doctrine of Anshun estoppel applied to the statutory compensation schemes under the Workers Compensation Acts (1987 and 1998 Acts). The case of Miller had been heard on several prior occasions, and by the time it reached the Court of Appeal, it was at its tenth decision.

The Court unanimously held that it did (see Ward P at [123]–[127], Brereton JA at [133]–[134]). The Court of Appeal found that there is no reason, in principle, why Anshun estoppel should not be applicable to the workers compensation scheme.

There is a passage by Brereton JA at Miller No 10 [135] which deserves your attention in terms of how unreasonableness from an Anshun point of view is considered in the context of the legislative structure of the scheme and the Commission’s practices and procedures.

The Court of Appeal confirmed that the application of Anshun in the jurisdiction is well-established by authority, and this is not brand new. It does not change the law regarding Anshun. What Miller No. 10 does is clarify the applicability of the common law principle to proceedings before the Commission.

To that end you should closely read Miller No 10 as Anshun is an argument that one is seeing relatively frequently in Commission proceedings.

CONDUCT OF APPEALS

Earlier this year I gave a paper at the UNSW Law School on the conduct of appeals from the Workers Compensation Division. That paper is on the Commission’s website under the President’s Speeches section. It provides a very detailed examination of how to conduct an appeal and commentary on a list of issues that commonly arise on appeal. I would commend a close review of that paper which was authored by three Presidential members as an aide memoire to the profession.

A key issue on appeal is the appropriate formulation of the error being alleged (whether of fact, law or discretion) and then showing how it actually affected the result. Not all errors, as they say, are born equal. It is very important to articulate the error in terms in the appeal application, quite a number of appeal grounds do not succeed due to a failure to identify the error. Remember an appeal’s success rests upon the identification and correction of error, it is not a reprise of arguments that failed before the member.

Thank you.