Procedural Direction MA7 – Claims disputes

Introduction

1.    This Procedural Direction provides information about applying for, and the assessment of, the following claims assessment matters:

(a)   the assessment of claims referred for assessment made under Part 4.4 of the Motor Accidents Compensation Act 1999 (the 1999 Act), including those referred for assessment of damages, or assessment under s 96 of the 1999 Act, but excluding those claims referred for exemption which are covered by Procedural Direction MA5;

(b)   the assessment of claims referred for special assessment made under s 96 of the 1999 Act;

(c)   the assessment of claims referred for assessment made under Part 7, Divisions 7.6, Subdivision 2 of the Motor Accident Injuries Act 2017 (the 2017 Act), and

(d)   the assessment of claims referred for miscellaneous assessment made under Part 7, Division 7.6, Subdivision 3 of the 2017 Act.

2.    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 Personal Injury Commission Rules 2021 (the PIC Rules).

Preliminary

3.    This Procedural Direction is made by the President under section 21 of 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)   Pt 4.4 of the 1999 Act;

(b)   Pt 7, Divs 7.6 and 7.7 of the 2017 Act;

(c)   the PIC Act;

(d)   Pt 2, Div 4 of the Motor Accidents Compensation Regulation 2020; and

(e)   Sch 1, cl 3 of the Motor Accident Injuries Regulation 2017.

Application for claims assessment

8.    Proceedings may be commenced by either party by lodging an application in the form approved by the President and within the timeframes set out in the enabling legislation and the PIC Rules.

9.    The Application must comply with:

(a)   all requirements specified in any approved application form;

(b)   all requirements specified in any approved online application process through the Commission’s electronic case management system, and

(c)   all requirements specified in the PIC rules.

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

11.   Documents attached to an application must be relevant to the real issues in the proceedings.12.  The reply must include:

(a)   the information required by the form;;

(b)   the response of the respondent to the issues in dispute between the parties identified in the claims assessment application, and

(c)   any requirements set out in the PIC rules

13.    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.

14.   An application and reply may only be amended in accordance with Division 4.2 of the PIC Rules.

15.   If the rules in relation to the commencement or conduct of claims assessment proceedings are not complied with, the Commission may set aside the proceedings, steps taken in the proceedings, or a decision in the proceedings, in accordance with rule 8 of the PIC rules

When an application can be made

Applications made under the 1999 Act

16.  An application for general assessment of a claim under the 1999 Act may be brought at any time. Rules 92(1) and (2) of the PIC Rules set out the pre-lodgment requirements that must be complied with in order for an application to be made.

17.  An application for special assessment of a claim under the 1999 Act may be brought at any time.

Applications made under the 2017 Act

18.  A claim for damages may be referred for assessment to the Commission at any time.

19.  Section 7.42 of the 2017 Act provides that a dispute about a decision of an insurer being a miscellaneous claims assessment matter as set out in the 2017 Act, Schedule 2, Part 3, can be referred at any time.

Allocation and deferral of claims disputes

20.  On receipt of submissions in reply, or in the absence of a reply, the matter will be reviewed by the Commission as soon as practicable for allocation to a member.

21.  In circumstances where a party considers the application is not ready for assessment and has made an application for the matter to be referred to the Stood Over list, the application will be reviewed in accordance with Procedural Direction MA1 – Stood over proceedings.

22.  The allocation of an application may otherwise 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, or

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

23.   In circumstances where a claim for damages is made under the 2017 Act and an application is made to the Commission outside the 3 year period prescribed by the 2017 Act, the claimant must provide to the Commission, with the application, a full and satisfactory explanation for the delay in lodging the application. The explanation will be considered by the Commission and a determination will be made as to whether the explanation is full and satisfactory, and therefore whether the late application can be made. In the event that the explanation is considered by the Commission to be full and satisfactory, and the application can therefore be made, the application will be allocated to a member for assessment.

Request for reallocation to a different member

24.  Either party may apply to the Commission in writing to have the application reallocated to a different member on the grounds that the member has a conflict of interest.

25.  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 member should not determine the dispute. A copy of the request must be provided to all parties to the matter.

26.  The request for reallocation will be considered by the member. If the member is of the opinion that it is not appropriate that they determine the application or dispute, the matter will be reallocated and the parties will be notified.

27.  A matter may also be reallocated a different member if the original member becomes unwell, retires, is otherwise unable to complete the assessment or is no longer appropriate to conduct the assessment.

Assessment arrangements

28.  The Commission will advise parties of the member to whom the application has been allocated for assessment and the date that an online conference (via audio or audio-visual link) will take place, or alternatively, a date on which a decision will be issued following an assessment on the papers.

29.  Upon allocation to a member the member will conduct a preliminary teleconference, or may otherwise determine the matter on the papers if the President or member considers this appropriate. If the member considers it necessary a hearing will be held.

30.  If a party indicates that an interpreter is required in relation to an application for assessment of a claims dispute, the Commission will arrange for an  interpreter to be available when required as part of the dispute resolution process, and the Commission will meet the costs of the interpreter

31.  For further information on interpreters, please see the Commission’s policy Interpreting Services.

Conduct of Claims proceedings

32.  Part 8 and Part 10 of the PIC Rules relate to the conduct of claims proceedings.

33.  The President and/or member may determine the procedure for claims proceedings. The member may inquire into any matter relevant to the issues in dispute.

34.  The claims assessment 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, which may include undertaking the review on the papers, using online conferences (via audio or audio-visual link) or face-to-face meetings as appropriate.

35.  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.

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

37.  Any further procedures and requirements of the parties in respect to conduct of proceedings are set out in Procedural Direction PIC1 – Conduct of proceedings.

Directions for production and further information

38. A member may issue a direction for production in accordance with Rule 47 of the PIC Rules.

39.  Further information in relation to directions for production and calling of witnesses by members can be found in the Procedural Direction PIC9 – Production of information and calling of witnesses.

Determinations/Certificates

40.  The member is to issue the parties with a certificate as to the claims assessment, attaching a brief statement of reasons for the assessment in accordance with Rule 78 of the PIC Rules.

41.  The insurer should apply and give effect to the decision as quickly as practicable.

Costs

42.  Part 2, Division 4 of the Motor Accidents Compensation Regulation 2020 makes provision for the assessment of costs under the 1999 Act. In making an assessment and specifying damages under s 94 of the 1999 Act a member may include in the assessment an assessment of the claimant’s costs in the matter.

43.  Schedule 1, clause 3 of the Motor Accident Injuries Regulation 2017 makes provision for the maximum costs payable for legal services provided to a claimant in connection with matters relating to the assessment of a miscellaneous assessment matter under the 2017 Act.

44.  Schedule 1 clause 2(5) and Table E of the 2017 Regulation make provision for the maximum costs for legal services to a claimant in connection with a claims assessment matter under the 2017 Act.

45.  Where costs for legal services are payable by the insurer, the insurer must pay the invoice within 20 days of its receipt.

How is an assessment of damages accepted or rejected?

46.  Both s 95 of the 1999 Act and s 7.38 of the 2017 Act provide that an assessment of the amount of damages for liability under a claim is binding on the insurer, and the insurer must pay to the claimant the amount of damages specified in the certificate as to the assessment if the insurer accepts that liability under the claim, and the claimant accepts that amount of damages in settlement of the claim within 21 days after the certificate of assessment is issued. An assessment of damages is not binding in a claim where the insurer has denied liability, and liability has been determined by the member.

47.  For claims made under the 1999 Act the insurer is required to advise the Commission in writing, no later than two months after the issue of the certificate of assessment, whether or not that certificate of assessment has as yet been accepted or rejected by either party.

48.  For claims made under the 2017 Act the claimant is to give written notice to the insurer of their acceptance or rejection. The insurer is to give written notice to the claimant of any mutual acceptance or rejection of the assessment. The assessment acceptance day is prescribed by Part 5, Division 4, Clause 15(3) of the 2017 Regulation as the earlier of either the day on which the insurer receives notice of the claimant’s acceptance of damages, or the day that is 21 days after the certificate of assessment is issued to the insurer.

Obvious Errors

49.  If the President is satisfied that a certificate or a statement of reasons attached to the certificate contains an obvious error, the President may issue, or approve of the member issuing, a replacement certificate or statement of reasons to correct the error.

50.  An application to correct an obvious error should be made in writing to the President, and served on all parties to the proceedings, as soon as practicable. The application must set out the details of the obvious error and the terms of the suggested correction.

51.  An obvious error may be corrected at the request of a party, or as a result of the member’s, or President’s identification of an obvious error.

52.  A request by a party to have an obvious error corrected must be made within 21 calendar days.

Application for further claims assessment

53.  A party may refer a claim for damages made under the 1999 Act or the 2017 Act to the Commission for a further claims assessment where significant new evidence is produced in court proceedings after a claims assessor has previously assessed a claim.

54.  A claim for damages may be referred for further claims assessment by making an application to the Commission in accordance with the standard application requirements.

55.  The further claims assessment application will be dealt with under the same provisions that apply to claims assessments.