Speech by the President to mark the latest Personal Injury Commission member appointments

President’s remarks: Welcome ceremony for six new Commission members

President’s Court

Thursday 1 August 2024

Principal Registrar, please announce the hearing.

I’d like to begin by acknowledging the Traditional Owners of the land on which we meet today. I would also like to pay my respects to Elders past and present

On behalf of the Commission’s members and staff I want to welcome and congratulate you all on your appointments. The Commission has decided to celebrate each new member appointment with this ceremony which recognises your achievement and marks the public importance of the role you are about to embark upon. My remarks this morning are of course directed to you our new members, but they have equal application to every member of the Commission.

The work you have committed yourself to perform is a significant act of public service. You now become a part of the system of courts and tribunals whose role it is to uphold the Rule of Law in NSW. In the dangerous world in which we now live, the importance of the Rule of Law cannot be underestimated or taken for granted. It is the difference between civilisation and the dictatorships.

One question I hope you are asking yourself is this – what sort of decision maker do I want to be and how will I approach this task? It is a fair question deserving thought and reflection. Sir Harry Gibbs, one of the great Chief Justices of the High Court of Australia, put it this way: “The rule of law was an idea that cases, civil or criminal, are decided by applying legal rules, antecedently established, to facts dispassionately found.”

This is your job.

The role you are embarking on though is different from most other professional undertakings. It is a quasi-judicial role where you will be deciding rights between competing parties in an adversarial environment. The life is almost monastic in this sense – you do have to put behind you certain activities which the reasonable observer would judge to be incompatible with the position you now hold. To quote the COAT Practice Manual, “In private life, a tribunal member should behave in a way that upholds the integrity and good reputation of the tribunal.” This obligation applies both to what you do and should not do in your private life.

Each of you brings a different set of life and professional experiences which will enrich the Commission and be of benefit to the citizens we serve. I will briefly refer to that experience:

The Hon. Lea Drake

Lea Drake, you come to us with a Bachelor of Laws and a diploma in Labour Relations and the Law. You have a wealth of experience in both private practice and tribunal experience including the Fair Work Commission, Law Enforcement Conduct Commission, ACT Administrative & Civil Tribunal and finally a Sessional Member in the Workers Compensation Division of the Personal Injury Commission since January 2023. In the past month, you have been appointed as an Acting Commissioner of the NSW Greyhound Welfare and Integrity Commission to lead an inquiry into Greyhound Racing NSW.

Bianca Montgomery-Hribar

Bianca Montgomery-Hribar, you come to us with a degree in law where you graduated with First Class Honours and were shortlisted for the Gender Institute Prize for your Honours Thesis. You also have a degree in Science and a Graduate Diploma in Legal Practice.  You were admitted to practice in 2012 and have had a long career in private practice working across litigation, dispute resolution and NSW motor accidents law. You have been employed as a senior legal counsel since April 2020.

Philip Carr

Philip Carr, you have been appointed as a mediator with the Commission since 2014. You have degrees in both arts and law and you have more than 40 years’ experience in legal practice across both private and government including as a partner, barrister, Court appointed mediator in the District, Supreme and Federal Court of Australia and an Arbitrator in the local, District and Supreme Courts.

Sophie Jones

Sophie Jones, you have degrees in both arts and law and have been admitted as a solicitor since October 2005. In the almost 20 years since your admission, you have had a career in both private practice and government service. In March this year you were appointed as a sessional member in the worker’s compensation division of the Personal Injury Commission.

Jeremy Lum

Jeremy Lum, you have degrees in both law and science and have been admitted as a solicitor since 2005. Since your admission you have practised in both NSW Motor Accidents law and Workers Compensation Law. You have been a decision maker in the Dispute Resolution Service and more recently you have been employed as a Principal Lawyer with the Commission where you have been a valued decision maker. You bring deep skills in personal injury law and decision making.

Brett Williams

Brett Williams, you were originally appointed as a Member of the Personal Injury Commission in the Motor Accidents Division in 2021 and by 2022 you became a Senior Member. Following your admission in 1998, you worked in private practice before gaining employment with QBE Insurance initially as a National & In-House Legal Manager, then Head of Legal in Litigation and Claims and finally Deputy General Counsel. You have a degree in Law and Arts and a Master of Laws in Dispute Resolution. You are an NSW Accredited Specialist in Dispute Resolution. You have outstanding experience, knowledge and skills which will be an asset across both divisions.

The varied skills, qualifications and experience you all possess and which I have just briefly touched upon will be of great benefit to the Commission and to the citizens that we serve. In addition though, there are a number of qualities which are the hallmark of a tribunal member.

In my opinion, each of you possess these qualities.

None of these attributes exist in isolation from the others. Collectively they inform and instruct the decision maker how to conduct themselves in a way which enhances public confidence and their perception of the tribunal. Remember, the public having trust in decision making is the sine non qua of an effective tribunal.

Independence – this is the core of decision making, whether being exercised by a judge or a tribunal member. It is not a benefit or prize bestowed on the individual decision maker. It is not a precious thing to be jealously guarded. Rather, it is a very clear message to every citizen that the decision maker hearing their case is free from any external interference or pressure and that as a consequence they can have confidence in the decision maker approaching their dispute with a mind that is open to persuasion. The decision-making independence you now have acquired exists for the benefit of the citizens whose disputes will be decided by each of you.

A corollary to the attribute of independence is of course impartiality. Everybody appearing before you being treated in the same manner is central to this attribute. People are very quick to notice if one side is being favoured which serves to undermine the whole process and is why impartiality is so important. Not only the actual observance of impartiality, but it also must be apparent to any observer of the proceedings.

Courtesy and respect are essential. For a lot of litigants their appearance before you may be the first and only time they are before a court or tribunal. You should require those appearing before you to exhibit these qualities while being an exemplar of them yourself. A hearing is not combat by other means. The application of these virtues is even more important when a witness is giving evidence. Remember the witness is in your care during this process, the process should be firm but civil.

These virtues of courtesy and respect should also be displayed to your colleagues and the Commission staff. Remember it is they who are your greatest support in this vocation. The life of a decision maker can be lonely. It is you and a blank piece of paper at the start of every decision. Having good colleagues is a tremendous gift to each decision maker. So treat them well.

I would also remark that humility is a singular attribute that a decision maker should have and exhibit. You sit in a position of great power over your fellow citizens. This needs to be acknowledged and understood. Conducting oneself in a haughty or arrogant manner will simply decrease the trust and confidence the parties will have in the process and any decision you subsequently deliver. Everybody in the room will know that the decision will be made by you, the power in your hands is known. You do not need to tell anyone about it. Being humble gives a message that you know this and that it is a sacred trust that you will execute professionally.

Next is hard work. I will not mislead you, conducting hearings and decision writing is a tough vocation. Do not be daunted by this, the more decisions you write the more proficient you will become. The harder you examine the case, the more likely it is that the just and correct result will emerge.

And bear this in mind, litigation in Sydney is conducted by some tough characters. Some days it is not for the faint hearted. Expect to be tested.

But it is a new and different application of your legal skills. You will get better at it only by application and hard work.

A sense of humour and perspective is also not out of place. There will be witnesses, parties and, dare I say it, some lawyers, who will infuriate you. You may come out of a hearing exhausted by the fight that has taken place. While smoke still lingers in the air and the bodies are being removed from the battlefield, the task will fall to you to decide who won.

There will be decisions that you will write which will be adversely commented upon by others and which may be appealed.

You may be overturned, which can be galling after all the hard work you have put into the decision.

Your decision may be criticised and worse, you may think that the whole world will read it. I will however give you this tip - normally only the parties will read your decision or colleagues with too much time on their hands.

Can you think of it this way – worse things happen at sea.

One of the judges put her feelings about appeals in this pithy way to me, “Sometimes in error, never in doubt!”

In short, have confidence in yourself and have resilience.

An appeal is the system operating in the way in which it is meant to. It is the price you pay for having decision making independence. It is part of the checks and balances which gives the public confidence in what we do. It is the occupational hazard of all decision makers so I would make my peace with that at the outset. Do not approach each decision with an eye to what may or may not happen on appeal, you will just make yourself unhappy. And it will not improve the quality of the decision you are drafting.

You have been appointed because we see these qualities in each of you.

It is not just your legal skills, having them is assumed and you are expected to diligently apply them to the facts of each case. But by exhibiting the various virtues I have described, that is over and above your legal skills, you will be terrific members.

We have every confidence in each of you to do this job very well.

Once again congratulations on your appointment, we are delighted that you are joining the Commission and I hope you will find it a rewarding experience.

This Commission will now adjourn and I would like to invite you all to morning tea.

Judge G.M. Phillips, President

Delivered at a special ceremony in the President’s Court, Personal Injury Commission of New South Wales, 1 August 2024.