Speech by the President to the NSW Bar Association Conference

An Introduction to the Personal Injury Commission of New South Wales

Paper delivered by the President to the NSW Bar Association Conference

Newcastle Novotel Beach Hotel

Saturday 20 February 2021

The Personal Injury Commission Act 2020 (the Act) was assented to on 11 August 2020. The Act abolishes the Workers Compensation Commission after 95 years of operation and the Dispute Resolution Service after 20 years of operation.

Each legacy body will be reconstituted as a Division in Australia’s newest tribunal when it commences its work on 1 March 2021, just a week from Monday.

The legislation itself was subject to wide consultation with various stakeholders.

The new Commission, I am very pleased to say, has widespread support amongst these stakeholder groups, but more importantly for all of you here today it has the backing of both the Bar Association and the Law Society. This is something that I am very pleased about and I can say I have been working very closely with the Presidents of both organisations over the past 12 months regarding the new tribunal.

If you followed the Act’s passage through the Parliament, it was variously described as a “lift and shift” of the two organisations, or a “minimalist” reform.

These statements are self-evidently true. There is no change to any of the underlying benefits under either of the workers compensation or motor accidents schemes.

Pausing here, what this means is that there is no need for anyone in this room to be concerned that any cases that you are currently working on need to be filed either before or after 1 March. There is no cliff approaching which would dictate when you file your case. It is really a case of business as usual simply because the benefits available to your clients remain the same after 1 March as they are today.

But that is not to say that there will be no change at all. Because there will be change which I hope that you will all in time see is change for the better as the new tribunal finds its legs and begins to operate.

Most of the change it is true will be on the motor accidents side. This is simply because the motor accidents work is transitioning into a tribunal environment. Twenty years ago, the policy choice was to remove these matters from the courts and put them into the relatively informal process conducted by the Dispute Resolution Service within the office of the regulator, SIRA.

Now it moves into a tribunal, which of necessity means there will be the usual type of formality that is associated with tribunal practice. I am sure nothing in that will catch anyone in this room by surprise.

I do think that what it will mean for you all as practitioners is this. Each matter will have a fairly predictable life as it winds its way through the Commission’s processes.

But what I can promise you all is this. If you, particularly if you are on the applicant’s side, prepare your cases well before you file them, we will deal with them quickly. This leads me to some provisions of the Act that I think are well worth your attention.

Section 3 of the Act is the objects provision. Unsurprisingly for a new tribunal, we are mandated to resolve the real issues in the proceedings justly, quickly and cost-effectively, with as little formality as possible. We are also to ensure that the decisions are timely, fair, consistent and of high quality and we are to promote public confidence in the decision making of the Commission and the conduct of its members. Importantly we are to be open and transparent about the Commission’s processes, and I will have something more to say about this when it comes to the publication of decisions.

Importantly in motor accidents though, the objects require the Commission to encourage early dispute resolution.

Now you might all be aware of the provision in the workers compensation legislation which requires the Commission member, currently an arbitrator, to conciliate the dispute first and that the mere fact they have done this is not a ground for that arbitrator to be excluded from hearing the case.

I don’t suggest that this provision in s 3 is as strong or forceful as that, but it is a change in the motor accidents side. It will mean that the Personal Injury Commission members hearing motor accidents matters will be obligated to encourage early dispute resolution before proceeding into a formal hearing.

The second provision I want to draw your attention to is s 42. This is the guiding principle. In broad terms, it says that the guiding principle of the Act and the Commission Rules is to facilitate the just, quick and cost-effective resolution of the real issues in the proceedings. It places a positive duty to cooperate with the Commission in giving effect to this guiding principle on all parties to the proceedings and any Australian legal practitioners appearing. Further, when it comes to applications for costs on the motor accidents side, s 42(4) says that the practice and procedure of the Commission should be implemented to facilitate the resolution of issues so that it is proportionate to the importance and complexity of the subject-matter of the proceedings. You should make sure therefore that anyone appearing in a Commission matter after 1 March is very familiar with s 42.

Section 43 unsurprisingly is the usual type of provision that you see in tribunal practice which says that the matter should proceed with as little formality and technicality as the proper consideration of the case permits and that the Commission is not bound by the rules of evidence but may inform itself in the way that it thinks is appropriate and proper. Finally, the Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicality or legal form. None of that will surprise anyone here, that is certainly the way the Commission has been conducted in the workers compensation area and is pretty typical of tribunal practice.

Next I want to draw your attention to s 58 and where this is dealt with in the Rules. Section 58 mandates that the Commission must cause details of its decisions to be published. Section 58(1) sets out the types of decisions that this mandatory provision applies to. Now those of you familiar with the operation of the Dispute Resolution Service over the years would recall that unlike the courts and tribunals, the DRS did not have any exemptions from privacy laws. So they have had some difficulty over time publishing their decisions, although in the recent past that has been ameliorated somewhat by de-identifying a number of matters. This however now all changes because of the statutory mandate to publish in s 58. Now we all know that injured persons can be concerned about the publication of details in decisions involving them. The Rules deal with this in rr 131 and 132. I would commend a close reading of those two provisions to you all here, but basically there is a power under the Rules to de-identify or redact aspects of decisions for example if the safety, health or well-being of a person could be adversely affected and where there is a public interest in so doing and that outweighs the public interest in open justice or there is a need to prevent prejudice to the proper administration of justice. So if you need to make that application, please be aware that you will have 7 days to do so after you are notified of the decision. But you also need to be aware of this. Section 3 which I referred to before talks about the Commission being open and transparent in its processes. The publication of decisions is an aspect of compliance with the objects of the Act as well as the mandatory obligation to publish which appears in s 58.

I think on the motor accidents side the development with regards to the publication of decisions is a welcome and long overdue development. It means that no matter where you are in New South Wales you have access to all the up-to-date precedent decisions on all areas of the Commission’s practice and that can only be a good thing. It puts everyone and their lawyers on a very even playing field when it comes to the preparation and conduct of cases.

I will say that this aspect of the new Commission’s operations has not been without controversy. However as we all in this room know, justice not only must be done it must be seen to be done and an aspect of this involves the publication of decisions. I also think that the publication of decisions encourages honesty and candour, but it also more importantly for the Commission’s members, both legal and medical, is a very public statement of their accountability for their decisions.

The next provision of the Act that I would commend to your reading is Schedule 6. Schedule 6 contains all of the consequential amendments to the workers compensation and motor accidents legislation which underpins the Personal Injury Commission Act and also contains some transitional provisions. I am expecting that there will be some argument about these matters which occurs every time there is a statutory amendment which carries with it transitional provisions. I would commend them to your attention.

The next matter that I would refer you to is really all of the powers which exist under both the workers compensation and motor accidents legislation. You are probably all well familiar with how it has worked historically in workers compensation - the Registrar of the Workers Compensation Commission was really the repository of virtually all of the powers under the Workers Compensation Act and there were various delegations flowing from the Registrar to various officers. Importantly, the Registrar was also a member of the Commission.

Likewise in motor accidents, the Principal Claims Assessor, which is a statutory office, was also the repository of virtually all of the powers under the legislation and this would be delegated to various proper officers, merit reviewers or assessors, but ultimately all of the power resided in the office of the Principal Claims Assessor.

This is no longer the case under the Act. All of the powers under both schemes have been placed with the President of the Personal Injury Commission. I have recently published a table of the delegations, and they will principally be going to three roles, that is the Principal Registrar of the Personal Injury Commission, the Division Head of the Workers Compensation Division and the Division Head of the Motor Accidents Division. Those roles in turn have been granted a capacity in some circumstances to sub-delegate functions. Currently on the Workers Compensation Commission website, and certainly this will be on the Personal Injury Commission website which opens in about a week, there will be present a table of all of the delegations that will be made. I will sign them all on the 1st of March and I think that’s important because I understand that from time to time questions are asked about which decision maker is entrusted with the power to decide particular matters.

I will say this and this is going to be a bit of a change in motor accidents, in the scheme as it has existed over the past 20 years, there have been various different decision makers, for example the Principal Claims Assessor, proper officers, assessors and merit reviewers. With regards to the assessors some of them would only deal with 1999 Act matters, others only 2017 Act and a few were across both schemes. As far as I am concerned, these old distinctions are now gone and each member assigned to the Motor Accidents Division will be empowered to deal with virtually any matter which comes up and which is proper and appropriate to be dealt with by that member.

Another aspect of change under the Act pertains to the composition of medical panels in third party matters. Medical appeal panels as conducted by the Dispute Resolution Service were comprised of three medical specialists. The Act has changed this, the composition of the appeal panel going forward will be two medical specialists and one of the legally qualified members.

I think this is a long overdue reform. In this regard, there was a recent case where Justice Campbell said this of the medical appeal panel in third party matters:

“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of those powers.”[1]

This is of course a very succinct statement of what I consider to be uncontroversial principle. The substitution of one of the medical specialists for one of our legally qualified members will mean that the medical panels are now better placed to meet this statement of principle as set out by Justice Campbell. This will be completely consistent with the obligation contained in s 3 of the Act to ensure that the decisions are fair, consistent and of a high quality. I should say this though, there are a number of existing medical appeal panels constituted by three medical specialists which will need to be conducted under the current regime. We will be providing some decision making or judicial support to those panels to ensure that their decisions are consistent with the object of ensuring the accuracy of those decisions, but of course ultimately the decisions remain those of the medical panel and the medical panel alone.

In conclusion though, I will say this about the new Commission. The opening of a new tribunal in the justice sector is an historic occurrence. This doesn’t happen very often. Indeed the closing of the Workers Compensation Commission after 95 years is also a very rare event in the justice sector. But I think this is a splendid development. The idea of a Personal Injury Commission has been around, to my knowledge, for at least the past 30 or 40 years. Those of you in the room here who are old enough to remember the Compensation Court, the predecessor organisation of the Workers Compensation Commission, would understand this. When the Compensation Court was opened, and during the course of its life, it only dealt with workers compensation matters. But the word ‘workers’ was deliberately not placed in the title of the Court because it had been hoped that over time its jurisdiction could expand into other areas of personal injury law. Unfortunately the requisite cosmic alignment of the planets never occurred until last year with the passage of the Act. The members of the profession I have been speaking to have high hopes for this new tribunal. If you followed the proceedings in Parliament, it was thought that the motor accidents scheme would benefit by being transferred into a tribunal setting and having the same approach brought to bear that the Workers Compensation Commission had long implemented. This we will do. If this works as intended, it would be my expectation that this approach could be built on.

In creating this new tribunal though, I must say we have been much concerned to ensure that we can build trust and confidence in the new tribunal in the minds of its users and the legal profession. Indeed I was much taken by the speech that Chief Justice Bathurst gave at the Law Society Commencement dinner a few weeks back where he spoke about the necessity for there to be public trust and confidence in the judiciary and to my mind these comments apply equally to tribunals as they do to the courts. He said this:

“As a public institution comprised of men and women holding a public position, we must hold ourselves to higher standards to ensure that not only is the public confident in our abilities, but also trusts in us, as an institution and as individual decision makers.”

This is something that we will be working hard to gain and maintain. Each of the decision makers in the new Commission, be they legal or medical, will have enormous power over the lives of their fellow citizens and to my mind it is important that they treat the people who entrust their cases to the new Commission in a way which is fair, decent and transparent. To this end, I have been developing Codes of Conduct for all of the decision makers, both legal and medical, which are aimed at maximising public trust and confidence in the new Commission. All have been finished with the exception of one and I expect to be finalising the Code of Conduct for medical assessors in March this year.

Given I am here speaking to you all in a regional venue, I would assume that you may have a passing interest in how the new Commission intends on dealing with its regional or rural lists.

Firstly, we will always sit in the bigger centres such as Newcastle, Wagga Wagga and such places. Indeed I have a number of members in both Divisions resident here in Newcastle. So rest assured the Personal Injury Commission will have a presence here in Newcastle.

However you might have noticed that there is a worldwide pandemic which is current and that in the past 12 months much of the work of the courts and tribunals has gone online. We have been no different.

In terms of the WCC over the past 12 months, I am very pleased to be able to say that we have dealt with our usual caseload. This has been done by a combination of audio-visual hearing and telephone conferencing. In the future I see that in terms of the Commission’s list, we will run a portfolio of approaches to hearings. My aspiration is that about 25% of our hearing work will be able to be conducted online. This will give us even greater geographical coverage of New South Wales. It also means if we can get the listing right that we should be able to conduct matters in rural or regional areas just as swiftly as they are conducted in the city. But with the combined jurisdiction of workers compensation and motor accidents, there will now be some country centres which will have sufficient cases to justify sending a member there to hear cases from both divisions. I am pleased to say we have a number of general members and two principal members who have appointments to both divisions. But I can assure you all here that audio-visual hearings, mediations or indeed directions are all perfect for our audio-visual platforms. I have heard a number of appeal proceedings on the audio-visual platform during the pandemic and it was a very effective way of proceeding.

I think another question you might be asking is when will we be recommencing in-person hearings. Given that I am putting together two organisations, we are going to shortly start a renovation of our premises at 1 Oxford Street. That will probably start towards the end of April or in early May and the demolition and build will probably take about three months. I think there will be some limited in-person hearings between now and the commencement of demolition but I do not envisage opening up 1 Oxford Street until the new premises have been completed, probably around July or August. So between now and then whilst there will be some limited in-person hearings, I think I hope to have everyone back to work in 1 Oxford Street at the end of the renovation.

Finally, we are having a ceremonial sitting to mark the abolition of the Workers Compensation Commission and the inaugural sitting of the Personal Injury Commission. This will take place in the Ceremonial Court of the District Court Sydney on 1 March. It is invitation only because of the pandemic and the various restrictions associated with the pandemic which still exist in Sydney. However we will be livestreaming the event so if you want to log on and watch it from 9.30 am on 1 March you are quite welcome to do so. There will be speeches from the Attorney General, the Minister for Customer Service, the Presidents of the Bar Association and Law Society as well as myself in what I think is quite an historic occasion. The transcript and tape will be on the Personal Injury Commission website for you to review or watch at your leisure. It is however for the staff and members which we have been putting together over the past 6 months, a very exciting event. This is a significant reform, it represents a change of approach to resolving and hearing disputes in motor accidents and I think it has quite some potential. I do look forward to seeing many of you in this room appearing in the Personal Injury Commission in the months and years ahead.

Now that concludes the formal speech that I have come to deliver here today, I would now be pleased to take any of your questions.

[1] Raina v CIC Allianz Insurance Limited [2021] NSWSC 13.