How to Name Parties in Appeals Against Presidential Decisions and Judicial Review Proceedings

Appeals Against Presidential Decisions

For appeals against determinations of Presidential Members of the Commission (pursuant to s 353 of the Workplace Injury Management and Workers Compensation Act 1998) (the 1998 Act) in the Court of Appeal, the “Personal Injury Commission” or “the President of the Personal Injury Commission” should not be named as a party. Rule 51.4(2) of the Uniform Civil Procedure Rules 2005 (the UCPR) provides that the “decision-maker is not required to be joined as a respondent in appeal proceedings”. The parties in the appeal proceedings are the same as the parties named in the proceedings before the Commission.

Judicial Review Proceedings

Rule 59.3(4) of the UCPR provides that in judicial review proceedings, “the body or person responsible for a decision to be reviewed must be joined as a defendant, but not as the first defendant unless there is no other defendant.” Rule 59.3(3) of the UCPR provides that “if the proceedings seek to prohibit, injunct or mandate a step that has not been taken, each body or person who may be directly affected by the relief sought must be joined as a defendant.”

Judicial review proceedings from a decision of the President in both divisions

For judicial review proceedings in the Common Law Division (commenced pursuant to s 69 of the Supreme Court Act 1970), where a party seeks judicial review of a decision made by the President, or a delegate of the President, the “President of the Personal Injury Commission of New South Wales” should be a joined as a defendant, in addition to the parties in the proceedings before the Commission.

Judicial review proceedings from the decision of an Appeal Panel in the Workers Compensation Division

For judicial review proceedings in the Common Law Division (commenced pursuant to s 69 of the Supreme Court Act 1970), where a party seeks judicial review of a decision of an Appeal Panel, both the Appeal Panel and the President should be joined as defendants in the proceedings before the Court. This is by virtue of Rule 59.3 of the UCPR as outlined above, and s 328(1) of the 1998 Act, which provides an appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 Medical Assessors and 1 Member assigned to the Workers Compensation Division, chosen by the President.

The correct identification of those two parties is as follows:

• “[Names of the members of the Appeal Panel] as an Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998”, and
• “President of the Personal Injury Commission of New South Wales”.

Judicial review proceedings from the decision of a Review Panel in the Motor Accidents Division

As outlined above, in accordance with Rule 59.3(4) of the UCPR, where a party seeks judicial review of a decision of a Review Panel, both the Panel and the President should be joined as defendants in the proceedings. This is by virtue of section 63(3) of the Motor Accidents Compensation Act 1999 and section 7.26(5A) of the Motor Accident Injuries Act 2017 which provide the panel is to be constituted by 2 Medical Assessors and 1 Member of the Commission assigned to the Motor Accidents Division, chosen by the President.

We note for Review Panels in matters where the initiating application was prior to 1 March 2021, the Review Panel would be made of ‘at least 3 Medical Assessors’ by virtue of section 63(3) of the 1999 Act and ‘of at least 2 Medical Assessors’ pursuant to the 2017 Act.

The correct identification of those two parties is as follows:

• “[names of the members of the Panel] as a Review Panel constituted under section 63 of the Motor Accidents Compensation Act 1999” or “[names of the members of the Panel] as a Review Panel constituted under s 7.26 of the Motor Accidents Injuries Act 2017”,and
• “President of the Personal Injury Commission of New South Wales”.

Judicial review proceedings from the decision of a non-Presidential Member or Medical Assessor in the Motor Accidents Division

Where a party seeks judicial review of a decision of a non-Presidential Member or Medical Assessor in the Motor Accidents Division, the individual Member or Medical Assessor shall be named, followed by the organisation that appointed them as at the date the relevant decision was determined, followed by the legislation under which they were appointed. The “President of the Personal Injury Commission” should be joined as a defendant in addition to the parties in the proceedings before the Commission.

The following examples show the correct identification of these parties:

Non-Presidential Member (Assessor) - where the decision being challenged was made prior to 1 March 2021

• “[name of Assessor] in their capacity as an Assessor appointed by the State Insurance Regulatory Authority under section 7.4 of the Motor Accidents Injuries Act 2017”, or
• “[name of Assessor] in their capacity as an Assessor appointed by the State Insurance Regulatory Authority under section 99 of the Motor Accidents Compensation Act 1999”.

Non-Presidential Member- where decision being challenged was made on or after 1 March 2021:

• “[name of non-Presidential Member] in their capacity as a Member appointed by the Minister under section 9 of the Personal Injury Commission Act 2020”.

Medical Assessor- where decision being challenged was made prior to 1 March 2021:

• “[name of Medical Assessor] in their capacity as a Medical Assessor appointed by the State Insurance Regulatory Authority under section 7.4 of the Motor Accidents Injuries Act 2017”, or
• “[name of Medical Assessor] in their capacity as a Medical Assessor appointed by the State Insurance Regulatory Authority under section 59 of the Motor Accidents Compensation Act 1999”.

Medical Assessor- where decision being challenged was made on or after 1 March 2021:

“[name of Medical Assessor] in their capacity as a Medical Assessor appointed by the President of the Personal Injury Commission under section 33 of the Personal Injury Commission Act 2020”.