Edition No.13

This edition was issued on 9 September 2021

Welcome

Welcome to the latest edition of Personal Injury Commission News. I trust that you are keeping safe and well in our current circumstances.

This edition focuses on the Personal Injury Commission Rules (2021) and work that is underway to identify and update Rules that have not been working well in practice since the Commission commenced on 1 March 2021.

As I have said in a number of fora this year, the Rule Committee will be undertaking a review of the inaugural PIC Rules (2021) towards the end of 2021. This process has already commenced with the detailed consultation which has been undertaken regarding service and late service of documents in proceedings before the PIC and in particular in the Motor Accidents Division. The Rule Committee has recently passed a resolution to address this process which is detailed below.

Consultation for the Initial Review of the remainder of the PIC Rules has also commenced this week, with multiple stakeholder organisations and groups contacted to provide submissions. Further information regarding the consultation is provided below.

I am committed to ensuring that the Rules that govern the Commission’s operations are fit for purpose and work well in practice to ensure an optimal service experience for the various parties to disputes and the injured people of NSW. I look forward to proactively evolving the Rules as needed via these review processes.

I will be in touch with another edition of Personal Injury Commission News soon.

Kind regards,

Judge Gerard Phillips

President

Major Rule Change Commencing at the Start of Law Term 2022

Detailed consultation has been undertaken in recent weeks regarding the operation of Personal Injury Commission Rule 67 Material to be lodged in applicable proceedings. The necessity to undertake this review was initiated in part by the late service of surveillance material in the Motor Accidents Division, which has been leading to delays and applications for adjournments. We were most appreciative of the considered views that were supplied to the Rule Committee on this particular issue.

The Rule Committee met on Thursday 2 September 2021 to consider the submissions and the response required. The Committee unanimously resolved:

  1. To repeal Rule 67(5) from the Personal Injury Commission Rules 2021; and
  2. To amend Rule 67(3) and (4) so that they read as follows:

(3) If a party to applicable proceedings wishes to rely on a document not lodged and served in compliance with subrule (1), the party must—

a) as soon as practicable after becoming aware of the document or obtaining possession of the document, serve a copy on all other parties, and

b) not later than 3 working days before a medical assessment or teleconference, on one occasion only and by the approved form, lodge all documents not previously lodged, and

c) not later than 3 working days before a hearing, on one occasion only and by the approved form, lodge all documents not previously lodged.

(4) The appropriate decision-maker for the applicable proceedings may, if it is satisfied that it is necessary to do so in the interests of justice, allow a party to introduce evidence that the party would be prevented from introducing because of the operation of subrule (2) if—

a) the party complies with subrule (3), or

b) the appropriate decision-maker gives the party leave to lodge additional documents; or

c) all parties to the proceedings consent to the lodgment, and the appropriate decision maker gives the party leave to lodge the additional documents.

The resolution is available to view on the Commission’s website here.

These changes to the Rule will be coupled with the following change to processes in the Motor Accidents Division.

The Rules provide that a party to proceedings must lodge and serve on all other parties, with an application and reply, all information and documents relevant to the real issues in proceedings. An applicant must serve the application and supporting documents within 7 days of registration. The respondent must, within 21 days of registration of the application, lodge a reply to the application and supporting documents, and serve a sealed copy on the other parties.

From commencement of law term 2022, any matter filed in the Motor Accidents Division will be allocated to a member for a conference within 28 days. The prior practice from the Dispute Resolution Service where the passage of the matter would be delayed pending the filing of a reply will no longer be a practice that is adopted.

Parties are required to file their reply within 21 days and if this requirement is not met and the matter is otherwise ready to proceed, it will proceed in the absence of that material.

Further, if the application that has been filed is incomplete or is not ready, the member, in the exercise of their discretion, may dismiss the matter. In terms of practice on the applicant’s side in the Motor Accidents Division, the message is clearly to prepare the case so it is ready to proceed when it is filed.

I am providing this information now to give all users and the legal profession as much notice as possible of the changes, which will commence at the start of law term 2022.

This is a very pleasing development and will better enable the Commission to meet its objects under s 3 of the Personal Injury Commission Act 2020.

Initial Review of the Personal Injury Commission Rules (2021)

The Commission’s Rule Committee will be undertaking an Initial Review of the remainder of the inaugural PIC Rules towards the end of 2021. Its scope is to identify the Rules that have not been operating well in practice since the Commission commenced on 1 March 2021.

Consultation for the Initial Review has commenced this week and submissions have been sought from the following organisations and groups:

  • The Personal Injury Commission Stakeholder Reference Group
  • The Personal Injury Commission CTP Stakeholder Reference Group
  • Unions New South Wales
  • SIRA
  • icare
  • IRO
  • The Law Society of NSW
  • The Bar Association of NSW
  • Ai Group, Australian Federation of Employers and Industries, NSW Business Chamber
  • Royal Australasian College of Physicians, The Royal Australian and New Zealand College of Psychiatrists and The Royal Australasian College of Surgeons

The Commission has provided a consultation pack and template for submissions to these organisations and groups in order to streamline the process for both stakeholders and the Rule Committee.

Individuals are welcome to submit their views via these organisations and groups.

Submissions will close on 7 October 2021 and the Rule Committee will vote on proposed changes around the end of October 2021. Drafting instructions will be provided to the Parliamentary Counsel’s Office around the end of November 2021.

The amended Rules will commence operation in the first half of 2022 and the Commission will give stakeholders several months’ notice of their commencement.

I encourage you to submit any suggestions you might have via your relevant stakeholder organisation or group. In undertaking any such considerations, you should bear in mind that the Commission’s Rules must be as flexible and informal as possible (s 19(2)(b) of the Personal Injury Commission Act 2020) and that they give effect to the objects and guiding principle of the Personal Injury Commission Act 2020. Any suggestion or submission which is made must have regard to giving effect to these statutory mandates.

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