Speech by the President at UNSW's Personal Injury Law Legal Intensive

Speech delivered by the President at UNSW’s Personal Injury Law Legal Intensive on 1 March 2023.

Personal Injury Commission Update

Speech delivered by the President of the Personal Injury Commission at UNSW’s Personal Injury Law Legal Intensive

University of New South Wales

Wednesday 1 March 2023

It is a great pleasure to be here at the University of New South Wales again, to provide you with an update on the Personal Injury Commission of NSW.

Today, 1 March 2023, is the second anniversary of the establishment of the Commission. As is well known, the Commission is a combination of two legacy organisations: the Workers Compensation Commission, an independent statutory tribunal with rules and procedural directions, and the Dispute Resolution Service responsible for resolving disputes arising out of motor vehicle accidents in New South Wales that sat within the State Insurance Regulatory Authority, with completely different policy for the past 20 years. Whilst much of this 2-year period has been under pandemic operating conditions, it has been great this year to be operating in more “regular” circumstances and see many of the profession back in the Commission.

Two years into our operations, we have seen the consolidation of those legacy organisations, joined with new staff, medical assessors, members, mediators and merit reviewers, to create and embed this institution in the jurisdiction of personal injury. In fact, it is rare to hear reference to the ‘Workers Compensation Commission’ or ‘Dispute Resolution Service’ as was the case early in our existence. Where we have been able to harmonise process across both schemes, we have, whether it be by way of the Personal Injury Commission Rules 2021 or Procedural Directions. We also have medical assessors and members who work across both divisions.

For those of you who might be new to the jurisdiction, or who have not practised in the jurisdiction for a while, I take this opportunity to provide you with an overview. The Personal Injury Commission is NSW newest tribunal. Its establishment, membership and operations are governed by the Personal Injury Commission Act 2020. The Commission’s primary function is to resolve disputes between people injured in motor accidents or workplaces in NSW and insurers and employers, in accordance with the workers compensation and motor accidents enabling legislation.

The Commission performs its functions in accordance with its objectives as set out in s 3 of the Personal Injury Commission Act 2020, with the aim of encouraging the early resolution of disputes and resolving the real issues quickly, cost-effectively and with as little formality as possible.

To do this, the Commission works with all parties and employs a combination of alternative dispute resolution methods depending on the dispute at hand, including preliminary conferences, conciliations, expedited assessments, mediations, to more formal arbitrations or assessment hearings when resolution cannot be achieved. Where a party is not satisfied with a decision of the Commission, it may seek an appeal or review, the pathway of which differs depending on the nature of the dispute. For example, the Commission holds an internal appellate jurisdiction in the Workers Compensation Division, whereby Presidential members, including myself, determine appeals in accordance s 352 of the Workplace Injury Management and Workers Compensation Act 1998. Appeals from Presidential decisions are to the Court of Appeal.

These alternative dispute resolution pathways are facilitated by the Commission’s members, merit reviewers and mediators, while medical disputes are assessed by medical assessors, either virtually through audio visual means; in person; or a hybrid mix of virtual and in-person. Medical assessments are utilised primarily for disputes about the extent of injuries or impairment and may be subject to review by a panel in both divisions.

Since my address to you this time last year, the landscape of NSW has changed as the world emerges from the COVID-19 pandemic, as too have the landscape and operations of the Commission. Most notably, we have been able to resume in-person operations, which I will get to later.

In the past 2 years the Commission has dealt with the following:

(a) Approximately 30,000 cases filed across both divisions;

(b) Approximately 29,000 cases finalised across both divisions;

(c) Approximately 12,000 medical assessments were undertaken, and

(d) Approximately 3,000 mediations.

We have been able to achieve a high resolution rate, reflected in our statistics as of the last financial year (30 June 2021–1 July 2022):

(a) In workers compensation: 91% of disputes resolved without a determination;

(b) In motor accidents: 72% of disputes resolved without a determination, and

(c) In work injury damages: 70% of applications for mediation resolved.

In looking over the past two years, I say with pride and confidence that the Personal Injury Commission’s second year was one full of milestones and will provide you those milestones later in this address.

As the Commission’s operations have undergone significant change emerging from the pandemic, the decisions have continued, and what we have seen is the Commission build its jurisprudence and embed its practices across both the motor accidents and workers compensation schemes. Today, I will speak to a few areas of importance in the Commission’s practices and decision making: Rules 131 and 132 of the Personal Injury Commission Rules 2021 regarding the de-identification and redaction of publishable decisions, Anshun estoppel, and federal diversity jurisdiction.

Rule 132 of the Personal Injury Commission Rules 2021 – redaction or de-identification of decision details

The publication of decisions is mandated by section 58 of the Personal Injury Commission Act 2020 and is in keeping with the Commission’s objectives set out at section 3 of that Act, particularly to be open and transparent in its processes and decision making, and to promote public confidence. For the first time, decisions in the motor accidents space are published, and not only provide guidance to the profession, but to the insurers and the injured people of NSW who are navigating the complexities of the motor accidents scheme.

In accordance with rule 131, decisions of the Commission are published on the Commission’s website and other legal databases, no earlier than 7 days after the decision is issued. However, where necessary, relevant persons may make an application for the de-identification or redaction of a decision’s details, pursuant to rule 132 of the Personal Injury Commission Rules 2021, such as in circumstances where publication of details of the decision may impact the health, safety, and wellbeing of a claimant, or to prevent prejudice to the proper administration of justice.

“Relevant persons” with standing to make an application are defined under rule 132(6) to include:

(a)    a party to the proceedings in which the publishable decision is made, or

(b)   a person named in the publishable decision, or

(c)    another person the Commission or the President considers to have a sufficient interest to make the application.

Commission members, including myself, may also direct this on their own motion, where there is no application made, but where it might be necessary due to highly sensitive or distressing details in the decision.[1]

Rule 132 rule intends to strike the right balance of justice being conducted openly and transparently, and the protection of vulnerable persons. With an increase in psychological injuries and disputes reflective of the Australia wide mental health crisis, the Commission is seeing more cases alleging psychiatric injury or overlay.

Applications for redaction or de-identification may be made by parties either during, or after, proceedings are completed.[2] Where proceedings have been completed, any application for direction must be made within 7 days after the decision is issued.[3] This means that where parties are legally represented, you will have 7 days to take instructions and make an application.

Now, I would encourage you, as I have encouraged the Commission members, not to wait until decisions are issued to determine whether it is in the interests of your client or a party to consider seeking making an application to redact or de-identify the details of a decision, provided it meets the relevant criteria. The criteria which are weighed up for consideration are outlined in rule 132(4) of the Personal Injury Commission Rules 2021, which stipulates that the Commission must have regard to and weigh up the following matters when determining to either redact or de-identify:

(a)   the objects of the PIC Act and enabling legislation and, in particular, the object that the Commission be open and transparent about its processes;

(b)   the prevention of prejudice to the proper administration of justice;

(c)    the safety, health and wellbeing of a person affected or named by the publishable decision;

(d)   the views of any other party to the proceedings, and

(e)   whether it is necessary in the public interest for the direction to be given and whether the public interest in giving the direction significantly outweighs the public interest in open justice.

If the Commission is not satisfied by the weight of those matters, the application may not be successful. In fact, such applications have been denied for Presidential decisions which have failed to meet those points. It is therefore significant that any application under rule 132 make submissions on those points.

Unfortunately, few lawyers make this application at the hearing. What happens usually is this: the decision is provided to the parties, the impacted party sees it, and at that point an application either is made or not made. To support and encourage these applications, the Independent Review Office put out advice to the approved lawyers in workers compensation that ILARS may fund these applications where made.

To conclude, if during the preliminary conference, or hearing of a matter, it becomes clear to you that there is very sensitive or damaging evidence being considered by the member that may end up in a publishable decision, consider whether it is appropriate to raise an application under rule 132 seeking to either de-identify or redact the details of that decision, before the proceedings are completed.

Ensure that your application addresses the matters to which the Commission will give weight under rule 132(4), and outline clearly the details you seek to have de-identified or redacted. It is preferrable, not only for your client, but also for the members, that these applications are heard before the decision is issued or before a member writes their decision – as opposed to dealing with it in the small window of 7 days after the decision is issued.

Anshun Estoppel - Miller v Secretary, Department of Communities and Justice [2022] NSWCA 190

I now address a substantive area of law which has recently been discussed in the NSW Court of Appeal through the decision of Miller v Secretary, Department of Communities and Justice [2022] NSWCA 190 - Anshun estoppel.

The case of Miller has been heard on several prior occasions, and by the time it reached the Court of Appeal, it was at its tenth decision. I will therefore refer to the Court of Appeal decision as Miller No. 10. Before I go into the details of Miller No 10, it is prudent to reflect on the principles underpinning Anshun estoppel.

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.[4]

As different to the other forms of estoppel, her Honour, President Ward of the Court of Appeal noted at [95] of Miller No. 10 that Anshun estoppel is:

“an extension of ‘cause of action estoppel’ (which operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment) and ‘issue estoppel’ (which operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment).”

Anshun estoppel is engaged only where the party has unreasonably failed to assert a right or defence in connection with or the context of the earlier proceeding.[5]

I pause here to note that it is frequently pleaded that because causes of action identified in an Anshun argument are not the same, then Anshun does not apply. This is incorrect. It is important to note that the causes of action do not need to be the same. Indeed, the case of Anshun itself involved the same set of facts but completely different causes of action. One involved a claim for indemnity, the other was a contractual claim.

What is required is an evaluative exercise based upon what a litigant could have been reasonably expected to do in earlier proceedings, as set out by the honourable Justice McColl (Giles and Campbell JJA agreeing) in Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 (31 July 2009), who repeated at [81] of this decision the following principles raised in Anshun:

“Anshun … operates ‘not only [in respect of] points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. Anshun (at 598) per Gibbs CJ, Mason and Aickin JJ. There will be an estoppel if it appears that ‘the matter relied upon ... in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it’: Anshun (at 602). The test is one of reasonableness …”(emphasis added)

In Habib, her Honour at [82] confirmed that Anshun was“allied to, but not co-extensive with, res judicata and issue estoppel”[6], and described the approach to Anshun at [83]–[87] to include consideration of the following points:

  • Her Honour said at [83]: “Anshun estoppel may arise where an omission to plead a claim or defence will contribute to the existence of conflicting judgments, including those which are contradictory, though they may not be pronounced on the same cause of action as long as they appear to declare rights which are inconsistent in respect of the same transaction: Anshun (at 603–604). Thus an Anshun estoppel will apply even though the parties to the second proceedings are not the same as in the first…”.
  • Next at [84]: “A strict approach is necessary in an Anshun estoppel case to the inquiry whether there exists the requisite identity between the proceedings; the mere fact that the proceedings are closely related is insufficient; a technical approach is not helpful, the doctrine being concerned with substance and not form…the court inquires into realities and not mere technicalities”.
  • Her Honour stated at [85]: “In considering whether an Anshun estoppel has been established it is necessary to bear in mind that ‘shut[ting] out a claim ... a party wishes to pursue, without determination of its intrinsic merit, on the ground that it ought to have been raised in earlier litigation ... is a serious step, [and] a power not to be exercised except ‘after a scrupulous examination of all the circumstances’”.[7]
  • Further, at [86], her Honour referred to Johnson v Gore Wood & Co (a firm) [2000] UKHL 65; [2002] 2 AC 1 (at 31) where Lord Bingham of Cornhill held “the underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter… The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all… It is, however, wrong to hold that because a matter could have been raised in early proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.”
  • And finally, at [87], in considering whether it would have been reasonable to rely upon a matter in earlier proceedings, Her Honour quoted Anshun at [603] that courts recognise “that there are a variety of circumstances ... why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings … ”.

Now, in turning to Miller No. 10, the facts are as follows.

The deceased worker, Ms Miller, was employed by the respondent who provided community transport for clients to attend medical appointments. In April 2011, on a return drive, Ms Miller experienced a severe asthma attack, and regrettably, despite receiving CPR, passed away. The proceedings were brought by her husband and son.

In Miller No. 1, the issue before the Arbitrator (of the then Workers Compensation Commission) was whether Ms Miller’s employment was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease of asthma, in accordance with s 4(b)(ii) of the Workers Compensation Act 1987. The Arbitrator found against this, making an award in favour of the employer.

Miller No. 1 was appealed and confirmed by a Presidential member in Miller No. 2. This proceeded to the Court of Appeal, who affirmed the decision (Miller No. 3).

Fresh proceedings were then commenced in the Workers Compensation Commission, constituting Miller No. 4. In these proceedings, injury was pleaded differently under s 4(a) of the 1987 Act as injury simpliciter, being the direct causes of death of anoxia and cardiac arrest.

In defending these fresh proceedings, the employer raised the doctrines of res judicata, issue estoppel and Anshun estoppel. In the first instance, the Arbitrator rejected those doctrines and made an award in favour of the dependents, however, this decision was overturned on appeal to me in Miller No. 5. The matter was remitted to another Arbitrator to determine the applicability of issue estoppel and Anshun. The Arbitrator ultimately found that the dependants were precluded in making their claim due to Anshun estoppel (Miller No. 8). The dependants appealed this decision, and Deputy President Snell confirmed the Arbitrator’s decision in Miller No. 9. The recent matter, Miller No 10, was an appeal to the Court of Appealwiththe sole question of law being:

“Is the application of the common law doctrine of estoppel associated with [Anshun] as a defence to statutory entitlements consistent with the scheme of the 1987 Act and the 1998 Act?”

The Court of Appeal affirmed unequivocally, that the doctrine of Anshun estoppel is applicable to the Workers Compensation Acts, and dismissed the appeal.

The Court of Appeal found that there is no reason, in principle, why Anshun estoppel should not be applicable to the workers compensation scheme. Indeed, at [136], Brereton JA went even further and said that Anshun is consistent with the statutory provision providing for dismissal of vexatious proceedings, which is now replicated in s 54 of the Personal Injury Commission Act 2020, and which I note is applicable to both workers compensation and motor accidents matters. His Honour noted that until the appeal to the Court, the case had been conducted on the basis that Anshun was available in law, and it was unreasonable to raise now only after remitter, rehearing, and a further appeal. If it been raised earlier, it may have authorised a dismissal on the basis the proceedings were vexatious, as an alternative basis for the same outcome.

In terms of the question of applicability of Anshun to workers compensation, the Court of Appeal noted that while there is not necessarily a perfect alignment between a statutory framework and common law principles, mere difficulty in the application of such principles to the statutory framework should not preclude any attempts to reconcile the two in the absence of an express exclusion of common law principles by the legislature, or inconsistency between the statute and those principles ([127]–[134]). While the Workplace Injury Management and Workers Compensation Act 1998 provides that disputes are to be determined according to “equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”, this does not preclude the application of Anshun estoppel to the legislative scheme. Anshun estoppel is neither a formality, nor a technicality, but a principle of law of fundamental importance which bears squarely upon the rule of law and issues of fairness and justice ([123]).

In summary, the application of Anshun estoppel must have regard to the legislative structure and scheme, and also to conventions of practice and procedure, because such conventions inform a judgment as to whether it is unreasonable in the circumstances not to have brought a particular claim earlier. The authorities establish that a worker is not required to bring forward at once all claims for all types of compensation in respect of all injuries arising out of the one event, and may pursue different types of compensation in respect of different injuries separately, but may not in a later application claim, on an alternative basis, the same relief as has earlier been denied [135].

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, I recommend a close reading of the Court of Appeal decision in Miller No. 10.

Federal Diversity Jurisdiction – Searle v McGregor [2022] NSWCA 213 and Rafiqul Islam-v-Transport Accident Commission of Victoria and Heather Worldon-v-Transport Accident Commission of Victoria [2022] NSWDC 582

It goes without saying that the issue of federal diversity jurisdiction has been a topic of on-going movement in the past year. As the position is fairly settled, particularly in the motor accidents space at the date of today’s address, I will only make a brief mention.

Division 3.2 of the Personal Injury Commission Act 2020 provides for matters to be heard in the District Court if the determination of the matter by the Commission “would involve an exercise of federal jurisdiction”. As defined in s 75(iv) of the Commonwealth Constitution, these matters are those between States, residents of different States, or between a State and a resident of another State. Residency is determined at the time the application is lodged at the Commission (Ritson v State of New South Wales [2021] NSWPIC 409 (20 October 2021)). The Commission is not considered a court of the State (Attorney General for New South Wales v Gatsby [2018] NSWCA 254). Accordingly, the Commission cannot engage in a determination of matters which involve federal jurisdiction. These provisions do not apply, however, where the resolution of the dispute exercises administrative power, and not judicial power. The exercise of judicial or administrative power requires an examination of the power actually being exercised by the decision maker and the claim being pursued. This was examined in the matters of Searle v McGregor [2022] NSWCA 213 and in Rafiqul Islam-v-Transport Accident Commission of Victoria and Heather Worldon-v-Transport Accident Commission of Victoria [2022] NSWDC 582.

Islam provides a useful summary of the indicia drawn from the various authorities dealing with the distinction between administrative and judicial powers, including that judicial power:

(a) is binding and authoritative, whether or not it is subject to appeal [16];[8]

(b) is exercised independently of the person against whom the proceedings are brought [17]-[18];[9]

(c)    determines existing rights and obligations according to law, thus quelling the controversy between the parties [20],[10] and

(d)      can depend on the manner of its exercise where judicial power must be exercised judicially by way of an “open and public enquiry (unless the subject matter necessitates an exception)” and the “observance of the rules of procedural fairness”, and “conversely, the fact that a body is not bound by the rules of evidence, and whose procedures are informal, can indicate that the exercise of a function is administrative” [24]-[25].[11]

In Searle and Islam, the Court held that a damages assessment under the Motor Accident Injuries Act 2017 does not involve an exercise of judicial power, and rather, according to Kirk JA in Searle, it was akin to an “advisory opinion” (at [35]). In Worldon, thesame conclusion as to the was held in respect of the function being exercised by a medical assessor being the exercise of administrative power.

The type of power being exercised in respect of workers compensation decisions of the Personal Injury Commission is not yet decided by the District Court, but I do note the observations made in two Presidential matters, by Deputy President Snell in Fletcher International Exports Pty Ltd v Lee [2022] NSWPICPD 39 (21 October 2022) and Deputy President Wood in State of New South Wales v Kanajenahalli [2023] NSWPICPD 1 (note: Notice of Intention to appeal filed in Court of Appeal). In the latter matter, Deputy President Wood discusses the prior Workers Compensation Commission’s status as referred to in Orellana-Fuentes v Standard Knitting Mill Pty Limited & Anor; Carey v Blasdom Pty Limited T/as Ascot Freightlines & Anor [2003] NSWCA 146. Whilst the then Workers Compensation Commission was not considered a court in the true sense of the word, Ipp JA (Spigelman CJ and Handley JA agreeing) said at [39]: “Undoubtedly, the Commission does exercise judicial powers, but this does not necessarily make it a court. There are many institutions that exercise judicial powers but are well recognised not to be courts.”

So in broad terms, be alive to this issue. If at the time of filing the application your client lives interstate, you need to examine whether the case is federally impacted. We have a very useful section of the Commission’s website which you can consult. If the claim is potentially affected and that is your view, you should not wait, an application should be made to the District Court.

Personal Injury Commission Update – 2 years on

When I was here this time last year, I spoke about what was to come in the second year of the Commission’s operations. I am pleased to say that we have met many of the milestones I raised to this audience one year ago:

  1. I spoke to you about the continuing renovation of the Commission’s 1 Oxford Street premises and the awaited return of staff to the office following periods of lock down resulting from public health orders. I confirm that after an extensive period of refurbishment, the Commission re-opened its doors in early 2022 to:
    1. a large President’s Court and three additional hearing rooms with the latest technology to support in-person, virtual and hybrid dispute resolution events
    2. member chambers which also double as virtual hearing spaces
    3. medical suites, designed according to the Australasian Health Facilities Guidelines, to conduct medical assessments with injured persons on-site for the first time
    4. vibrant open plan office and collaboration spaces for staff
    5. multiple safety features designed to reduce airborne and surface virus transmission including a new air conditioning system, touch-free doors, lockers and taps (making it one of the first office spaces in NSW with COVID-19 safety features incorporated in its fit-out and build).
  2. I spoke about our plans for a return to in-person hearings and medical assessments, which I am pleased to confirm was gradually rolled out throughout 2022. As many of you are aware, the Commission now holds a mixture of in-person hearings, virtual hearings, and hybrid hearings where some parties appear in person, and those who cannot attend are connected via audio-visual means in our hearing rooms. Our members, staff and users have garnered technological skills and training during the pandemic, and we wish to retain them in our ways of serving NSW and our ways of working going forward. In fact, most psychiatric medical assessments continue to take place online.
  3. I spoke about the tender and development of the new single digital platform, which would harmonise the virtual experience of all users and staff across the divisions. The development of this platform is well underway and has been named “Pathway”. By mid-year, the divisions will begin transferring from their existing platforms onto the system, commencing with motor accidents, and then workers compensation 3 months later. Comprehensive planning for consultation and training of all Commission decision-makers, staff and users commenced in late 2022 and continues. They will be supported through the transition across 2023.
  4. I spoke about the impact of the pandemic on medical assessments, and the adverse effect the pandemic and the various restrictions had upon this aspect of our operations. The Commission undertook work to understand its backlog, and defined it as motor accidents medical disputes filed prior to 1 January 2022, totalling 4,667 matters. As of March 2023, this number has reduced to approximately 1,000, and the Commission is continuing to work to maximise our services, deal with incoming matters, and is scheduling medical assessments well into 2023. Once the first instance backlog is sufficiently reduced, I expect that we can then work on reducing the waiting times for appointments with our high-use specialities. Also, given the high volume of medical assessments we are undertaking (both backlog and current matters), I do anticipate a spike in medical appeals. So it will take some time for the full impact of the pandemic to work itself through our dispute avenues. Given what is anticipated to happen with medical panels, we are undertaking planning now in order to contend with that eventuality.
  5. I raised the focus we have on continuing to get the right people with the right expertise to undertake the work of the Commission. We undertook significant recruitment when we were established, building on the expertise of people who joined us from our two legacy organisations. Our members, merit reviewers, medical assessors and mediators are held to the highest professional standards by their Codes of Conduct, and we invest in their development and education through a range of events in a very packed annual events calendar. In line with this and forecasted demand, we have just completed a rigorous selection process to appoint 6 new sessional members in the Workers Compensation Division, and the first appointment of a senior member to the Motor Accidents Division.
  6. I advised of the Commission’s internal projects, with a view of supporting our people, through a strategic plan. I am delighted to confirm that the Commission rolled out its Strategic Plan, and its Vision, Mission, Purpose and Values last year, all aligning with our objective to resolve disputes for the people of NSW pursuant to the Personal Injury Commission Act 2020. The Strategic Plan underpins the aims of the Commission to deliver the best possible service to litigants:

Our Vision is: To lead the way in delivering quality, timely, innovative, and cost-effective justice for personal injury disputes.

Our Mission is: To deliver just, quick, cost-effective outcomes for injured people, employers, and insurers, in a way that is responsive, timely, fair, consistent and of the highest quality, with as little formality as possible.

Our Purpose is: To make the path to quality justice clear, accessible, timely and cost-effective.

What’s to Come?

During our past two years of service, the Commission has been very busy in the delivery of various projects. It goes without saying that this will continue over the next year, with a big milestone underway being the roll out of the Pathway platform.

A major project for the Commission is its Venue Spaces project, which aims to ensure that the Commission has fit for purpose venues, both physical and virtual, for all dispute resolution events to ensure accessibility and a quality experience for all users.

The first stage of that project was the roll out of virtual hearings via MS Teams, the Commission’s only platform for online hearings, and now also the roll out of in-person hearings at the Commission's premises with the capability to connect persons through audio-visual link, where required.

Next, I want to talk about how we are going to service regional and rural NSW. I can assure you that the days of sitting in RSL clubs or Leagues clubs in the bush are over.

But we are the Personal Injury Commission of NSW, not Sydney. So, as far as these regional cases are concerned, if they require an in-person hearing, we will provide an in-person hearing. Various sites are being scoped by the Commission, and where required, regional in-person hearings will be scheduled.

At the same time, there are a lot of cases we deal with that don’t require an in-person hearing or require a claimant or legal representative to fly to Sydney. As we have shown through COVID-19, there are a category of case which can quite fairly and efficiently be heard online, and we will continue with that practice. It is more time and cost efficient for the conduct of the list and for the Commission and the parties, in line with our objects under the Personal Injury Commission Act 2020. Continuing this enables us to conduct regional matters at the same speed with which we can deal with matters in the city, namely that the regional claimants, if they don’t need to be heard in person, they don’t need to wait until one of the members is able to attend an in-person venue near to where they reside. All of the courts and tribunals have expended a lot of money on IT during the pandemic and this has led to rapid upskilling not only with respect to judicial officers and tribunal members, but also the entirety of the legal profession.

To ensure we address the needs of regional users who may struggle to connect virtually, whether it be to participate in a hearing, converse with their legal representative, or attend an online medical assessment, the Commission is working on an exciting pilot to service the people of regional NSW who wish to connect in a secure, safe and professional environment. This facility will ensure that even a virtual hearing has a level of formality that befits the proceedings. It will also guarantee the integrity of what transpires in the virtual location.

Another significant milestone in the Commission’s practice is a proposed change to the Rules which will aim to eliminate the filing of irrelevant and duplicated material in Applications and Replies. This proposal is currently being actively reviewed by the Rule Committee. It aims to ensure the Commission is meeting its object to resolve the real issues in proceedings, justly, quickly and cost effectively, in accordance with its guiding principle under s 42 of the Personal Injury Commission Act 2020.

The proposed rule change under consideration will aim to require parties to only lodge documents which address the real issues in proceedings, as the lodgement of irrelevant documents prevents the efficient resolution of disputes. Sometimes, thousands of documents are filed, but only, a handful are referred to, causing unnecessary delay for our decision makers to filter through the evidence to find that which is actually required to determine the matter.

The filing of copious amounts of irrelevant evidence also results in sensitive personal and health information being shared between parties and stored on databases, which could potentially be unlawfully accessed during a cyber security breach. Whilst we have safeguards in this respect, the best way to ensure security of your client’s data is that any irrelevant personal or health information is not filed in the first place, and that is what this rule aims to achieve.

The issue of filing irrelevant and excessive material has been considered by the Supreme Court, in the case of Bevan v Bingham & Ors [2023] NSWSC 19, a decision of Justice Bellew of 7 February 2023. In that case, referring to the large volume of documents provided to the court, his Honour said:

“To begin with, when preparing any proceedings for hearing, there is a fundamental obligation upon all legal practitioners to give careful consideration to, and to identify the evidence which is necessary to put before the Court to allow the issue to be determined … In SDW v Church of Jesus Christ of Latter-Day Saints [7] Simpson J (as her Honour then was) made a number of observations which are particularly apt:

‘[35] To my observation, it has become too common practice for legal practitioners to produce to the court copies of every document that has come into existence associated with the facts the subject matter of the litigation. It denotes, at best, the exercise of no clinical legal judgement and the abdication of the responsibility that lies upon legal practitioners to apply thought and judgement in the selection of material to be presented to the court. A common example is the photocopying and presentation of hospital files …”

The Rule Committee is working hard and has consulted with stakeholders in respect of the proposed change, which aims to eradicate such behaviour, as well as allow the Commission’s proceedings to be conducted as quickly, and efficiently as possible, in accordance with our guiding principles. Any such rule will not be implemented until well after Pathway has rolled out. Please also rest assured that there is no proposal that intends to stop you from filing what you need to conduct a case before the Commission – you will be able to ensure that what you need to have your case fairly heard is lodged.

Conclusion

In conclusion, the new Commission is continuing to build out its operations. Hopefully the worst of COVID is behind us and we can get a clear run at our work and reduce our medical assessment backlogs and waiting times. We will continue to improve our technology and make the tribunal even more user friendly for claimants no matter where they reside. We will continue to publish high quality decisions for the benefit of all users and the profession.

[1] Rule 132(1).

[2] Rule 132(3).

[3] Rule 132(3)(c).

[4] Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212; [2016] HCA 44 at [27] (per French CJ, Kiefel, Keane and Nettle JJ; Tomlinson v Ramsey Food Processing (2015) 256 CLR 507; [2015] HCA 28.

[5] Miller No 10, [134].

[6] Spalla v St George Finance Ltd (No 6) [2004] FCA 1699 (at [64]–[65]), referring to Bryant v Commonwealth Bank of Australia [1995] FCA 1299; (1995) 57 FCR 287 (at 295) (Full Federal Court).

[7] Ling v Commonwealth [1996] FCA 1646; (1996) 68 FCR 180 (at 182) per Wilcox J, approved in Bazos (at [45]) per Stein JA (Priestley and Beazley JJA agreeing); see also Brisbane City Council v Attorney-General (Qld) [1979] AC 411 (at 425) per Lord Wilberforce.

[8] Huddart, Parker & Co Limited v Moorehead [1909] HCA 36.

[9] Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [2001] HCA 16, [31].

[10] Tasmanian Breweries Pty Ltd [1970] HCA 8.

[11] TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533 per French CJ and Gageler J, [27]; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at [82].

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