This edition was issued on 30 August 2023
In this edition, we welcome the Report on the outcome of the two-year Statutory Review of the Personal Injury Commission Act 2020 and provide a summary of the recent Memorandum of Understanding the Commission entered into with the State Insurance Regulatory Authority.
There is also a substantial article on Presidential appeals compliance, and information concerning treatment improving the recovery of an injured person, both of which I urge you to read.
I’m also delighted to announce the re-appointment of Ms Marie Johns as Motor Accidents Division Head.
I will be in touch with another edition of the Personal Injury Commission News soon.
Report on the outcome of the two-year Statutory Review of the Personal Injury Commission Act 2020
The Commission has welcomed the Report on the outcome of the two-year Statutory Review of the Personal Injury Commission Act 2020 undertaken by the State Insurance Regulatory Authority (SIRA).
The review found that the objects and terms of the Act generally remain appropriate to achieve its policy objectives.
The review made two recommendations for the consideration of the NSW Government, with respect to the functions of the Independent Review Office, and for SIRA, in relation to the enabling legislation. We will await the outcome of these recommendations.
The review also made three suggestions relating to our publications policy, a data publication policy and our engagement and consultation with stakeholders. These are helpful suggestions, and our next step is developing a plan for implementation, with consultation where appropriate.
The Report on the outcome of the two-year Statutory Review of the Personal Injury Commission Act 2020 is available on the NSW Parliament website.
Memorandum of Understanding with SIRA
A new Memorandum of Understanding (MoU) between the Personal Injury Commission (Commission) and the State Insurance Regulatory Authority (SIRA) was signed on 27 July 2023.
Subject to the terms of the MoU, the Commission and SIRA agree to cooperate and collaborate to assist each other to carry out our respective statutory powers and functions and to promote the regulation, administration and efficiency of the NSW workers compensation and motor accidents schemes and the resolution of disputes under each of those schemes.
The Commission and SIRA also agree to exchange certain information (including shared data) for the purpose of carrying out our respective statutory powers and functions.
The MoU is a voluntary statement of the parties’ intentions and, whilst not legally binding, it sets out the clear intention of how the Commission intends to engage with an important stakeholder.
Updated privacy notice
An important piece of work undertaken in conjunction with the drafting of the SIRA MoU was the development of an updated privacy notice for the Commission’s workers compensation and motor accidents forms. Revisions to the privacy notice are designed to provide context for the data sharing arrangements between the Commission and SIRA.
The updated notice provides more detailed information to parties as to the legal basis on which the Commission may obtain and disclose personal and health information under workers compensation and motor accidents laws.
Presidential appeal compliance
Parties are reminded of the importance to comply with procedural directions and timetables set by the Commission in appeals before Presidential members in the Workers Compensation Division, following increasing non-compliance.
It is important to comply with these requirements to avoid rejection of documents which may disrupt the prompt handling of disputes.
Procedural Direction WC3 – Presidential appeals and questions of law
The procedural requirements for Applications to Appeal Against Decisions of Members (Form 9) and Notices of Opposition (Form 9A) in the Workers Compensation Division are set out in Procedural Direction WC3 – Presidential appeals and questions of law. It is important that all parties to appeal proceedings comply with this procedural direction, in particular:
1. Grounds of appeal must be clearly and succinctly stated. The grounds of appeal must be set out clearly, under separate headings, and the submissions in support of each ground must identify:
(a) the respects in which error of law, fact or discretion is alleged to have occurred;
(b) any material findings it is said the member should or should not have made, and
(c) any material facts it is said the member should or should not have found.
2. All Appeal Applications and Notices of Opposition must:
(a) set out whether the appeal has been lodged within the legislated 28-day timeframe and, if not, the appeal must be accompanied by an application for an extension of time addressing the requirements under r 133A of the Personal Injury Commission Rules 2021 and as set out at  of Procedural Direction WC3;
(b) indicate whether the appeal is against an interlocutory decision (and, if so, make submissions in support of the party’s position as to whether leave should be granted);
(c) indicate whether the monetary threshold has been met, and
(d) attach a list of authorities.
Appellants are also required to attach:
(a) a sealed copy of the Certificate of Determination that is being appealed, and
(b) a chronology that complies with the requirements of  and  of Procedural Direction WC3.
Appeal Applications and Notices of Opposition that are not compliant with Procedural Direction WC3 will be rejected by the Commission. If a rejected appeal or opposition is re-lodged out of time, parties must make an application for an extension of time in accordance with r 133A and provide submissions in support of why an extension of time should be given.
Commission timetables, due dates and directions
Timetables are set to ensure the smooth flow of matters in the Commission, allowing parties the opportunity to lodge any relevant material and submissions as required. The Commission has noticed a growing number of practitioners in Presidential appeal proceedings missing timetable dates or dates within directions due to ‘administrative errors’, either through failure to record key dates or inaccurately recording them.
Practitioners are reminded to accurately diarise due dates, expiration dates and Commission timetables, including those within directions issued during the course of appeal proceedings. Failure to meet due dates affects Commission case management and processing, and will require an extension application with supporting submissions. The Commission will also require the position of the other side.
Unless adequate reasons are provided, extension applications may be denied.
Providing available dates for hearings and conferences
Where Appeal Applications proceed to conferences or hearings before Presidential members, practitioners are asked to provide accurate dates of availability, otherwise matters will be set down to ensure that appeal proceedings are heard justly, quickly and cost effectively, in accordance with the Commission’s objects and guiding principles at s 42 of the Personal Injury Commission Act 2020. There have been numerous matters that have required vacating and re-listing due to practitioners later realising they are unavailable. While the Commission will do its best to accommodate, this significantly affects the listing of other matters and occupies Commission resources.
Appeals against Presidential decisions to the NSW Court of Appeal
Any party who appeals against a decision of a Presidential member in the NSW Court of Appeal must notify the Commission by providing the Commission with a copy of the Notice of Intention to Appeal, or the Notice of Appeal at the time of filing in the NSW Court of Appeal. This is an obligation under r 51.42 of the Uniform Civil Procedure Rules 2005 (the UCPR). If Court of Appeal proceedings are discontinued or settled, the Commission must also be notified and provided with a copy of the discontinuance, settlement or consent order. Parties have not been complying with these requirements.
In accordance with r 51.44 of the UCPR, the filing of an appeal in the NSW Court of Appeal does not stay proceedings on foot in the Commission, unless a direction is issued. Unless the Commission is aware of the proceedings in the NSW Court of Appeal, a direction to stay the matter cannot be issued by the Commission and it may otherwise proceed. It is therefore of utmost importance that the Commission is notified of Presidential decisions appealed to the NSW Court of Appeal. Notifications can be sent to PresidentialUnit@pi.nsw.gov.au
The Commission thanks you in advance for your cooperation.
Treatment improving the recovery of an injured person
Section 3.28(3), which extended the 26-week period payable for, amongst other things, treatment that ‘will improve the recovery of the injured person’, was repealed by the Motor Accident Injuries Amendment Act 2022 on 1 April 2023.
The sub-section however is saved for motor accidents occurring before the date of the commencement of the amendment, being 1 April 2023 (transitional provision).
Clause 2(c) of Schedule 2 was also repealed by the MAI Amendment Act on 1 April 2023, and, unlike s 3.28(3), has not been saved as a transitional provision. This means that a medical assessment matter which deals with ‘whether the treatment or care provided to an injured person will improve the recovery of the injured person’ is no longer a medical assessment matter which is able to be determined by the Commission, due to the repeal of Schedule 2, clause 2(c).
In summary, there is no power for the medical assessor to determine this medical assessment matter as it no longer exists. This also applies to medical review panels dealing with a review of this type of medical assessment matter.
The recent decision by a Medical Review Panel (Panel) in Kotb v AAI Limited t/as GIO  NSWPICMP 310 addressed this issue.
The State Insurance Regulatory Authority has been advised and is currently working through options to rectify this as soon as possible.
The Commission has identified and is managing affected matters on a case-by-case basis. We are now reaching out to affected parties on how we will address this.
Re-appointment of Motor Accidents Division Head
The Commission provides its sincere congratulations to Ms Marie Johns on her re-appointment to the role of Motor Accidents Division Head by the Attorney-General for a period of five years from 26 August 2023.
Marie is the inaugural incumbent to this role from when the Commission was established in 2021. She has done an outstanding job of creating the Motor Accidents Division from scratch and has built a strong relationship with many stakeholders who engage with the Commission.
Sharing knowledge and experience with the legal profession
Judge Phillips recently had the pleasure of participating in two events hosted by members of the legal profession, including an expert panel on the changes in practice and procedure in Compulsory Third Party (CTP) claims at the Specialist Accreditation Conference hosted by the Law Society of NSW, and an address on life in the law to the Christian legal fellowship of the St Thomas More Society.
The full text of the Judge’s speech is available on the Commission’s website here.
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