Procedural Direction MA4 – Appointed representatives
This Procedural Direction provides procedural information in respect of when an appointed representative is to be used and the process of making an application to the Commission to act as an appointed representative.
Procedural Direction MA4 – Appointed representatives
This Procedural Direction applies to: Motor Accidents Division
Date of commencement: 1 March 2021
1. This Procedural Direction applies to proceedings commenced under Division 7.7 of Part 7 of the Motor Accidents Injuries Act 2017 (the 2017 Act). Rule 97 of the Personal Injury Commission Rules 2021 (the PIC Rules) applies to the commencement and resolution of these proceedings.
2. This Procedural Direction provides procedural information in respect of when an appointed representative is to be used and the process of making an application to the Commission to act as an appointed representative.
3. Words in this Procedural Direction have the same meaning as in the Personal Injury Commission Act 2020 (the PIC Act), any enabling legislation, and the PIC Rules.
4. This Procedural Direction is made by the President under section 21 of the PIC Act.
5. The President or a member before whom a matter is listed may excuse a party from complying with any aspect of this Procedural Direction before or after the time for compliance with any action required.
6. Nothing in this Procedural Direction prevents the President or a member directing a party to take any appropriate step in proceedings.
7. This Procedural Direction is to be read with and subject to any provision of the PIC Act, the enabling legislation, and the PIC Rules.
Applicable legislation and rules
8. Parties should be familiar with the following provisions:
(a) Part 7, Division 7.7 of the 2017 Act, and
(b) Rule 97 of the PIC Rules.
9. Section 7.47(2) of the 2017 Act provides that a person under a legal incapacity includes:
(a) a child under the age of 18 years, and
(b) an involuntary patient or forensic patient within the meaning of the Mental Health Act 2007, and
(c) a person under guardianship within the meaning of the Guardianship Act 1987, and
(d) a protected person within the meaning of the NSW Trustee and Guardian Act 2009, and
(e) an incommunicate person, being a person who has such a physical or mental disability that he or she is unable to receive communications, or express his or her will, with respect to his or her property or affairs.
10. The 2017 Act provides, at section 7.47(1), that a claimant who is a person under a legal incapacity may not make an application or refer any matter to the Commission, or carry on proceedings, except by his or her appointed representative.
11. Section 7.47(2) provides that an appointed representative is a person appointed to represent the person under a legal incapacity, in accordance with the Rules. The appointed representative may make an application, refer any matter to the Commission, or carry on proceedings, in the same way the claimant could have done had they not been under a legal incapacity.
12. An appointed representative may be a relative, friend, or other suitable person who is willing and able to be appointed to represent the claimant.
13. If legal incapacity ends during the course of proceedings the appointed representative will no longer be appointed as the claimant’s representative.
14. A person may make an application to the Commission for appointment as an appointed representative for a claimant at any time.
15. If the claimant already has an appointed representative, the representative should notify the Commission and the other party of the terms of that existing appointment.
16. Any person may be appointed as a representative of a claimant except:
(a) a person under legal incapacity, and
(b) a person who has an interest in the proceedings that may be adverse to the interests of the person under legal incapacity.
17. An application for appointment as an appointed representative for a claimant under legal incapacity may be referred to a member for determination.
Making an application to become an appointed representative
18. A person seeking to become an appointed representative for a claimant must lodge an application in the form approved by the President The application must include:
(a) evidence that the claimant is a person under legal incapacity, and
(b) evidence that the proposed representative consents to being appointed and does not have any interest in the proceedings adverse to the interests of the person under legal incapacity.
19. The allocation or determination of an application may be deferred for a period of time that the Commission considers appropriate in circumstances where further information is required, such as evidence of legal incapacity.
20. The Commission will issue a decision on whether or not to appoint a person as an appointed representative for a claimant as soon as practicable, providing brief reasons for that decision.
21. An appointed representative of a claimant under legal incapacity may apply to the Commission to cease their appointment.
22. If an appointed representative for a claimant under legal incapacity ceases their appointment, the proceedings will be stayed pending the appointment of a new representative for the claimant under a legal incapacity.
23. The Commission may decide that a person is to be an appointed representative for a specified period of time, such as until a claimant turns 18 years of age within the meaning of section 7.47(2) of the 2017 Act.