Procedural Direction MA5 – Matters unsuitable for assessment and mandatory exemptions

Introduction

1.    This Procedural Direction applies to proceedings commenced under sections 91(2)(a) and 91(2)(b) of the Motor Accidents Compensation Act 1999 (the 1999 Act) and section 7.34 of the Motor Accident Injuries Act 2017 (the 2017 Act). Rules 98 and 99 of the Personal Injury Commission Rules 2021 (the PIC Rules) apply to the commencement and resolution of these proceedings.

2.    This Procedural Direction provides procedural information in respect of applications to exempt claims for damages from assessment at the Commission in the Motor Accidents division.

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.

Preliminary

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)   1999 Scheme

1. Sections 91(2)(a) and 91(2)(b) of the 1999 Act;
2. Division 4, Clause 12A of the Motor Accidents Compensation Regulation 2020 (the 2020 Regulation), and
3. Rules 98 and 99 of the PIC Rules.

(b)   2017 Scheme

1. Section 7.34 of the 2017 Act;
2. Part 5, Division 4, Clause 14 of the Motor Accident Injuries Regulation 2017 (the 2017 Regulation), and
3. Rules 98 and 99 of the PIC Rules.

Exemptions under the Motor Accidents Compensation Act 1999

Mandatory exemptions

9.    Section 92(1)(a) of the 1999 Act provides that a claim is exempt from assessment if it is of the kind set out in the 2020 Regulation. Clause 12A of the 2020 Regulation sets out a number of circumstances in which a claim must be exempted from assessment by the Commission.

Matters unsuitable for assessment

10.  Section 92(1)(b) of the 1999 Act provides that a claim is exempt from assessment if a member has made a preliminary determination of the claim and has determined, with the approval of the President, that the claim is not suitable for assessment. Rule 99(3) sets out circumstances in which a claim may be found unsuitable for assessment.

Exemptions under the Motor Accidents Injuries Act 2017

Mandatory exemptions

11.  Section 7.34(1)(a) of the 2017 Act provides that a claim is exempt from assessment if it is of the kind specified in the 2017 Regulation as exempt. Clause 14 of the 2017 Regulation sets out a number of circumstances in which a claim must be exempted from assessment by the Commission.

Matters unsuitable for assessment

12.  Section 7.34(1)(b) of the 2017 Act provides that a claim is exempt from assessment if a member has made a preliminary determination of the claim and has determined, with the approval of the President, that the claim is not suitable for assessment. Rule 99(3) sets out circumstances in which a claim may be found unsuitable for assessment.

Commencement and Reply

13.  Proceedings may be commenced by a claimant by lodging an application in the form approved by the President. An application made under the 1999 Act may be made at any time after a claim is made. An application under the 2017 Act must be made within the timeframe set out in the 2017 Act and the PIC Rules.

14.  Either the claimant or the insurer may make an application for exemption.

15.  An application for exemption must include details of:

(a)  the information required by the form, and

(b)  the reason for the exemption of the claim and any supporting documents such as submissions.

16.  A separate application is required for each claim that a party seeks to have exempted.

17.  An application for exemption may be made before a member in the course of the general assessment of the claim. In that case the parties must comply with any directions made by the member who can dispense with the requirements of this Procedural Direction.

18.  An application for exemption may only be amended in accordance with Division 4.2 of the PIC rules.

19.  The respondent may lodge submissions in reply to the application within 14 days of being served with an application for mandatory exemption, or within 21 days of being served with an application for exemption on the basis that the claim is unsuitable for assessment, or, in the case of the latter, otherwise as directed by the member.

20.  The reply must include:

(a)   the information required by the form, and

(b)   the response of the respondent to the reasons the applicant believes the claim should be exempt and any supporting documents.

21.  In some circumstances the President may dispense with the requirement for a formal reply and expedite the determination of the application for exemption.

Allocation and deferral

22.  The matter will be reviewed by the Commission for allocation to the President, or a member in the case of an application for exemption on the basis that the claim is unsuitable for assessment.

23.  The allocation of an application may be deferred for a period of time that the Commission considers appropriate in the following circumstances:

(a)   further information or documentation has been requested;

(b)   there are other claims or issues in dispute or likely to be in dispute which would more conveniently be determined at the same time;

(c)   if the Commission is satisfied that the matter may be resolved by the parties and to allow the parties an opportunity to settle the claim;

(d)  the issues in dispute involve medical disputes which require a medical assessment, and that medical assessment has not occurred;

(e)  the claimant’s injury has not sufficiently recovered to enable the claim to be quantified having regard to any medical evidence attached to the application or reply, or

(f)   if there are other good reasons to defer the allocation of the application.

Conduct of claims proceedings when an application for exemption is made

24.  In accordance with section 43(2) of the PIC Act, the Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.

25.  The assessment of the application must be dealt with in the way that best supports the objects of the enabling legislation, given the facts and circumstances of the particular claim and the particular application for exemption, which may include undertaking the assessment on the papers, using online conferences (via audio or audio-visual link)  or face-to-face meetings as appropriate.

26.  The President or member must act with as little formality as the circumstances of the claim permit and according to equity, good conscience and the substantial merits of the matter, without regard to technicalities and legal forms.

27.  The President or member must ensure that relevant material is available so as to enable all of the relevant facts in issue to be determined.

28.  Any further procedures and requirements in respect to the conduct of parties are set out in Procedural Direction PIC1.

Determinations

29.  The President, or the member to whom the application for exemption has been allocated, is to issue the parties with a certificate as to their determination including a brief statement of reasons for the determination. Where an application for exemption has been made on the basis that the claim is unsuitable for assessment, the member is to provide reasons for their decision and if of the view that the claim is unsuitable for assessment, those reasons are to be provided to the President. The President is to give consideration to the reasons, the application and reply and all supporting documents, and if of the view that the claim is unsuitable for assessment will issue a Certificate of Exemption. Where the President does not agree that the claim is unsuitable for assessment the application will be allocated to a different member for assessment.