Procedural Direction MA6 – Review of a single merit review by a review panel

Introduction

1. This Procedural Direction applies to proceedings commenced under Division 7.4 of Pt 7 of the Motor Accident Injuries Act 2017 (the 2017 Act). Rule 129 of the Personal Injury Commission Rules 2021 (the PIC Rules) applies to the commencement and resolution of these proceedings.

2.     The purpose of this Procedural Direction is to provide procedural information in respect of seeking a review of a single merit review by a review panel.

Preliminary

3.     This Procedural Direction is made by the President under section 21 of the Personal Injury Commission Act 2020 (the PIC Act).

4.     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.

5.     Nothing in this Procedural Direction prevents the President or a member directing a party to take any appropriate step in proceedings.

6.     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

7.    Parties should be familiar with the following provisions:

(a)    Part 7, Division 7.4 of the 2017 Act, and

(b)    Part 13 and rule 133A of the PIC Rules.

Commencement and reply

8.     A claimant or insurer may apply to the President to refer a decision of a single merit reviewer to a review panel of merit reviewers for review by lodging an application in the form approved by the President within 28 days of the date that the parties to the merit review were issued with a certificate referred to in section 7.13(4) of the 2017 Act as to the merit reviewer’s determination.

9.     In exceptional circumstances, the President may extend the time for making an application for review (section 7.15(6) of the 2017 Act; r 129(2) and r 133A of the PIC Rules). If the application is lodged more than 28 days after the date of the certificate for which the review is sought, the lodging party must:

(a)     as soon as practicable give notice to the other parties of the intention to seek the extension;

(b)     make the extension application at the same time as the relevant application to which it relates;

(c)     provide the reasons why the application has been lodged out of time;

(d)     provide the full details of the arguments in favour of granting an extension of time for the making of the application, and

(e)     provide details of the demonstrable and substantial injustice that losing the right to make the application would allegedly cause.

10.     An application for review may only be made on the grounds that the decision was incorrect in a material respect under section 7.15(2) of the 2017 Act.

11.     The Application must comply with:

(a)     all requirements specified in any approved application form, and

(b)     all requirements specified in any approved online application process through the Commission’s Electronic Case Management system.

12.      All relevant supporting documentation must be attached to the application, and must be lodged as an indexed and paginated bundle.

13.     In addition to any requirements set out in the application form or PIC Rules, the application must include:

(a)     the decision of the single merit reviewer that is the subject of the application for review, and

(b)     the reasons why the decision is incorrect in a material respect.

14.     Documents attached to an application must be relevant to the real issues in the proceedings.

15.     A sealed copy of the application must be served on the other parties within 7 days of registration of the application. A certificate of service must be lodged within 7 days of service.

16.     An application for review of a single merit reviewer by a review panel may only be amended in accordance with Division 4.2 of the PIC rules.

17.     The respondent may lodge a reply to the application within 14 days of being served. The reply must include a response to the reasons given in the application.

18.     When a reply is lodged, all relevant supporting documentation must be attached to the reply, and must be lodged as an indexed and paginated bundle.

19.     If the rules in relation to the commencement or conduct of merit review proceedings are not complied with, the Commission may set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings, in accordance with rule 8 of the PIC Rules.

Allocation and deferral

20.     As soon as practicable on receipt of submissions in reply, or the expiration of the 14-day reply period, whichever occurs first, the matter will be reviewed by the Commission for allocation to the President to determine whether the matter should be referred to a review panel.

21.     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 PIC 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.

President determination

22.     The President will review the application, reply, documentation and materials relevant to the application to determine whether the President is satisfied that there is reasonable cause to suspect that the decision determining the merit review was incorrect in a material respect, as required by section 7.15(3) of the 2017 Act.

23.     If the President is satisfied that there is reasonable cause to suspect that the merit review decision was incorrect in a material respect, the application will be referred to a panel of at least two merit reviewers. The parties will be advised of the merit reviewers that have been allocated to the panel.

24.     Either party may apply to the Commission in writing to have the application reallocated to different review panel members on the grounds that a panel member has a conflict of interest. A request for reallocation must be made within 7 days of receiving the notification of allocation of the matter and include submissions and reasons as to why the party is of the view that the review panel member/s should not determine the dispute.

25.     The party seeking reallocation must provide a copy of the request for reallocation and the submissions in support to the other party to the dispute.

26.     The President will refer the application for reallocation to the review panel members to whom the application has been allocated. If the review panel members determine that it is not appropriate for them to determine the application or dispute, the review panel members will notify the parties and return the application to the Commission for reallocation to different review panel members.

Conduct of review panel proceedings

27.     In accordance with rule 128 of the PIC Rules, the review panel is to conduct and determine the proceedings in accordance with procedures determined by the panel. The panel is not bound by the rules of evidence and may inquire into matters that are relevant to the issues in dispute as the panel thinks fit.

28.     The review panel must be conducted in the way that best supports the objects of the enabling legislation and PIC Act, given the facts and circumstances of the particular claim and the particular merit review. This may include undertaking the review on the papers, using online conferences (via audio or audio-visual link) or face-to-face meetings as appropriate.

29.     The review panel may consider material that was not before the single merit reviewer.

Review panel determination

30.     The review panel may confirm the decision of the single merit reviewer or set aside the decision and make a decision in substitution for the decision set aside by the panel.

31.     The review panel will issue a certificate as to the panel’s determination, including a brief statement of reasons for the determination, in accordance with the enabling legislation. A copy of that certificate will be provided to the parties by the Commission.