Speech delivered by the President, 21 March 2024 at the Frederick Jordan Chambers

Speech delivered to Frederick Jordan Chambers

An introduction to the Personal Injury Commission

By Judge Gerard Phillips

President, Personal Injury Commission of New South Wales

21 March 2024

Frederick Jordan Chambers

Firstly, thank you for the kind invitation to address you tonight. I will speak to my prepared paper and then I would be very happy to field any questions you might have. The paper will appear on the Commission’s website next week if there is anything that you wish to revisit.

To start with, I want to say a few things about the Commission I head. It is still a relatively new institution and not widely known outside the usual suspects who regularly appear before us.

The Commission was established by the Personal Injury Commission Act 2020 (the 2020 Act) and commenced on 1 March 2021, so right in the middle of COVID-19. It is a merger of the venerable Workers Compensation Commission (which has been around in various forms, including the Compensation Court, since 1926) and the former Dispute Resolution Service, which sat within a Government Department for over 20 years when motor accident matters were, in the main, removed from the court system. The function of the DRS was dealing with personal injury disputes arising from car accidents.

As I said, these two legacy bodies have now been combined in one tribunal, which as you would expect has statutory rules and practice directions which govern how cases are filed and heard. We have two Divisions and an internal appellate body, naturally one division hears workers compensation matters, the other motor accidents disputes. The Commission’s structure is modelled on how NCAT was put together – that is specialist divisions.

In the last reporting year, we finalised over 17,000 disputes of all types and our 60 members wrote over 1,300 decisions. Between 80–90% of applications are resolved before hearing by virtue of the dispute models we conduct. We have on the workers compensation side, an internal appeal to a Presidential Member and from there the appeal is to the Court of Appeal. Currently, we have only two or three active appeals before the Court of Appeal. In motor accidents, the Members write an assessment, which is basically their opinion of the damages that a claimant would likely receive in the District Court. If the assessment is not accepted, and there are rules around this, the case can be filed in the District Court and pursued in the normal way.

The rules of evidence do not apply, procedural fairness rules are observed and the disputes are conducted in way which is broadly consistent with adversarial litigation, although we do try to make it as user friendly as we can, consistent with how tribunals operate.

We also conduct mediations of Work Injury Damages matters. We have 30 mediators who last year resolved 70% of the over 1,600 mediations they conducted. The mediators basically achieve this level of resolution of cases every year. The balance are then filed and heard in the District Court.

We also have over 160 medical specialists across all areas, they are decision-makers under the 2020 Act. Last year this group conducted slightly under 8,500 medical assessments. And we run our own medical suites and hearing loss assessments at our state of the art medical rooms at 1 Oxford Street.

Things have now settled down post-COVID which is terrific.

The Commission is fully digital – we have a portal through which everything is filed, we do not accept paper filings. We conduct a combination of in-person, on-line or hybrid hearings. At 1 Oxford Street where we sit, there are 15 in-person hearing rooms including one quite large modern court room, and on any given day we can list more than 15 hearings at a time by using the combination of in-person and virtual venues. Each of the Members’ chambers has been set up as a virtual hearing room. We do sit though in regional areas, and we have developed a virtual venue in the Service NSW Office in Dubbo. So, parties or witnesses in that region can participate in our various hearing events from a secure location - which for us has the benefit of ensuring the integrity of what happens in that room, especially if a witness is giving evidence. And the technology is ours which enhances the quality of the process.

Later this year we will be implementing a new rule which will limit parties to filing 500 pages in applications or replies. If more evidence than 500 pages is needed, application can be made and the simple test is to show how the additional material relates to the real issues in the dispute. Our experience has been that many hundreds or thousands of pages are filed and very little of it is ever referred to. As you can see there will be no limit on material that parties need, but there will be an absolute prohibition on material which should not be before the tribunal.

So, we hope to increase efficiency and put more focus on the real issues in the contest.^[1] It is also an aspect of how we approach cyber security. The best thing one can do is to hold only that information you need and no more. I would commend a methodical approach to cyber security. Last year as we all know a very large law firm was hacked as were the Victorian Courts and Tribunals. If you are not concerned about this, you should be. If there is one thing that keeps me awake at night, other than the possum in our roof, it is cyber.

Our new IT platform has been developed with an eye to enhancing our cyber security, but this is a never-ending task as the threat level constantly changes. The final part of our digital transformation project will be deployed probably in June, all going well.

I must say to digress briefly, when I took the appointment I would never have dreamed that being concerned with both cyber security and the emergence of sovereign citizens, would be issues on my desk as President. It just shows you that in the law there is never a dull moment and one has to be prepared to get across issues which are way outside the law.

Now moving on from what we do, I want to discuss a few legal issues which I hope you might find of interest. In the Workers Compensation Division, appeals against a member’s decision may be heard by a Presidential member, pursuant to s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Presidential members’ decisions may be appealed to the Court of Appeal (s 353 of the 1998 Act).

In a recent case the Court of Appeal had this to say. In Fisher v Noncomformist Pty Ltd,^[2] Kirk JA said about appeals from the Commission in workers compensation matters:

“There is no doubt that s 353(1) of the [1998] Act, and equivalent provisions, are intended to provide for a limited form of appellate review.”

Pausing here, the appeal rights from a Presidential member are confined to an error in a point of law.

His Honour continued:

“As has been said of s 32(1) of the DDT Act, the limited form of the appeal from the Dust Diseases Tribunal right manifests that Parliament ‘created the Tribunal as a specialist tribunal and, by confining appeal to error in point of law, gave primacy to the Tribunal’s position as fact-finder’: Patrick Operations Pty Limited v Comcare [2006] NSWCA 142; (2006) NSWLR 131 at [55]”.^[3]

In practical terms, this means that if there is a factual finding available on the evidence before one of our Members, you may find yourself stuck with it. While an appeal to a Presidential member can challenge a factual finding (s 352(5) of the 1998 Act), the finding must be shown to be wrong.

Next, I turn to estoppels. A member’s decision in workers compensation is, subject to the 2020 Act or the enabling legislation, “final and binding”.^[4] In Miller v Secretary, Department of Communities and Justice,^[5] Ward P held that findings of fact can create estoppels inter partes in workers compensation matters.^[6]Miller was an Anshun estoppel case where the claimants were shut out due to offending that principle. I would remark that Miller in the Court of Appeal was the tenth decision in that single piece of litigation so unsurprisingly Anshun got a run.

When I consider these two Court of Appeal decisions, I think that the message is this – notwithstanding the informality associated with tribunal practice and procedure, there are real legal principles which are in play which have real teeth. So one can get into trouble. If I was still in practice, the whole issue of first instance fact finding would cause me to be even more careful in putting the evidence together.

Fisher is also worth a read for Kirk JA’s discussion about the commonsense approach to causation.^[7] He notes that two members of the High Court have recently “gone so far as to say that ‘the concept of common sense should be eschewed when applying the principles of causation’: Young v Chief Executive Officer (Housing) [2023] HCA 31; (2023) 97 ALJR 840 at [60] per Gordon and Edelman JJ.” It is not there yet so the established position remains, but there is a certain amount of reading the tea leaves in these remarks which I would commend for your consideration.

Next I want to turn to matters affected by federal diversity jurisdiction.

The issue of whether the Commission may be exercising federal jurisdiction arose from the majority decision of the High Court in Burns v Corbett^[8] which determined that a State may not confer “State adjudicative authority” on a body that is not categorised as a court of a State.^[9] This was a case dealing with NCAT.

There are three requirements in determining whether a claim is potentially federally impacted under s 75(iv) of the Constitution. They are:

(1) jurisdiction can only be exercised by a court of a State;

(2) the matter is between residents of different States, or between a State and a resident of another State, and

(3)    the determination of the matter involves the exercise of judicial power.

The potential ramifications of the High Court decision in Burns resulted in the legislature enacting Division 3.2 of the 2020 Act which provides for matters to be heard in the District Court if the determination by the Commission “would involve an exercise of federal jurisdiction”.

If the Commission does not exercise judicial power as defined in the constitutional sense, then it cannot be exercising federal jurisdiction. The issue has been discussed by the Court of Appeal in Searle v McGregor^[10] where Kirk JA found that the Commission does not determine damages claims under the motor accidents legislation and accordingly the issue of federal jurisdiction did not arise.

The question of whether the Commission exercises judicial power in the Workers Compensation Division was commented upon by the Court of Appeal in Kanajenahalli v State of New South Wales (Western New South Wales Local Health District),^[11] which limited its decision that the Commission was not exercising judicial power when determining a dispute under s 11A of the Workers Compensation Act 1987 (the 1987 Act).

That decision has been applied by the District Court to a general liability dispute under s 4 of the 1987 Act.^[12] The District Court is hearing a number of applications in the near future in relation to different dispute types that we hear. These are heard in the District Court because tribunals cannot decide these questions.

Depending on the outcome of those cases, questions of federal jurisdiction may or may not be an issue for the Commission determining applications filed before it in either Division. If the power being exercised is administrative, the issue of federal diversity jurisdiction does not arise.

Finally, a brief word on motor accidents.

In motor accident matters before the Commission, just like in workers compensation, it is important that matters are well prepared prior to lodgement to ensure disputes can be determined in a timely manner in accordance with both the objects of the Act – to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible^[13] – and the guiding principle – to facilitate the just, quick and cost effective resolution of the real issues in the proceeding.^[14]

For the past few years however, we have seen a large proportion of Applications for Damages Assessment being referred to the Stood Over List (SOL)^[15] upon lodgement. This is mainly due to the number of outstanding medical assessments in respect of threshold injury and/or Whole Person Impairment, which has resulted from delays caused by the pandemic. The delays in medical assessments have reduced considerably over the last 12 months.

Once the Commission’s medical assessments are completed and the review period has expired, matters will be restored and allocated to Members to progress.

At present, many of the matters coming out of the SOL require several adjournments as the matters are not ready to proceed to assessment. It is acknowledged that there are circumstances where updated reports and statements etc may be required due to the passage of time in the SOL. However, this can be addressed by parties, where possible, using this time in the SOL to further prepare their matters. This may include serving evidence they wish to rely upon in the assessment of damages, issuing Directions for Production, resolving any procedural disputes (e.g. Merit Review matters dealing with the sufficiency of particulars etc) and using their best endeavours to settle the matter, where appropriate. This will ensure that when the matter is ready to be restored from the SOL and allocated to a Member, a date for the Assessment Conference can be scheduled as soon as possible.

I should say that the matters in the Motor Accidents Division are heavily reliant on our expert medical assessors conducting assessments of claimants. I think 60–70% of all motor accidents claims require such an assessment. The Statutory Review of the Personal Injury Commission Act last year recommended that this model be reviewed – it is certainly not as efficient as the model we conduct in the Workers Compensation Division. This is currently being worked on by the policy people who look at such things.

The Commission was established as I said in the middle of COVID. The further we move on from all the lock downs and restrictions, the better. The delays we suffered due to COVID were fortunately limited to motor accidents matters mainly. We have almost dispensed with the backlog of assessments, but we do have a large number of reviews flowing from the thousands of assessments, but we are very much in business-as-usual mode.

Filings in workers compensation have increased markedly in the last 12 months and you will see the Commission is actively recruiting, indeed I will shortly be recruiting for two full-time members if anyone is interested!

That is very much a summary or snap shot of the Commission and where we are, very happy to take any questions you might have.

Judge G.M.Phillips - President

[1] See s 42(1) of the 2020 Act.

[2] [2024] NSWCA 32 (Fisher).

[3] Fisher, [37].

[4] Section 56(1) of the 2020 Act.

[5] [2022] NSWCA 190 (Miller).

[6] Miller, [125]–[128].

[7] Fisher, [103]–[115].

[8] [2018] HCA 15; 265 CLR 304 (Burns).

[9] Burns, [55] per Kiefel CJ, Bell and Keane JJ; [119] per Gageler J.

[10] [2022] NSWCA 213.

[11] [2023] NSWCA 202.

[12] Chetty v Queanbeyan-Palerang Regional Council [2024] NSWDC 12.

[13] Section 3(c) of the 2020 Act.

[14] Section 42(1) of the 2020 Act.

[15] Rule 101 of the Personal Injury Commission Rules 2021.