Procedural Direction PIC16 – Self-represented litigants

Introduction

1.  This Procedural Direction applies to a person or party to proceedings in the Personal Injury Commission (Commission) who is not represented by a lawyer (a self-represented litigant). That is, the person or party is representing themselves.

2.  This Procedural Direction does not constitute legal advice.

Preliminary

3.  A Procedural Direction is made by the President of the Commission and is binding upon all parties to proceedings. See section 21(4) of the Personal Injury Commission Act 2020 (PIC Act).

4. Self-represented litigants must, by law, comply with the Personal Injury Commission Rules 2021 (Rules) and the Procedural Directions, including this one, unless you are excused from complying by the Commission. The Rules and Procedural Directions tell you what you must do to prepare and conduct your case in the Commission.

5. The Commission is committed to either resolving or deciding cases quickly and efficiently as is required by the PIC Act. Some cases are more complex and take more time. Section 42 of the PIC Act is the “Guiding Principle” which says that the Commission must facilitate the just, quick, and cost effective resolution of the real issues in each case. Every person appearing in the Commission, whether a lawyer or a person representing themselves, must co-operate with the Commission to give effect to the Guiding Principle. You can do this by preparing your case, identifying what the real issues are in the dispute, and complying with all Commission orders, directions, Rules and Procedural Directions.

6. Most importantly, you must treat the Commission’s Members, staff and your opponent with courtesy. If you behave in a threatening or aggressive manner towards anyone at the Commission, this will impede the finalisation of your dispute, and your case may be dismissed under section 54 of the PIC Act. For requirements for people appearing at the Commission, see Procedural Direction PIC1 - Conduct of parties during proceedings.

7. If you do not comply with the Commission’s requirements, including the Rules, Procedural Directions, or any other directions by the Commission, you may be directed to comply, or your case may be dismissed under section 54 of the PIC Act, unless there is a valid reason why you cannot comply.

Getting legal help first

8. You are a self-represented litigant if you have a legal case (i.e. proceedings as a worker or claimant) in the Commission and you do not have a lawyer to represent you.

9. It is up to you whether you represent yourself in your legal case with the Commission or have a lawyer represent you. You are entitled to be represented by a lawyer or an agent such as a union representative.

10. It is a good idea to speak to a lawyer before starting a legal case on your own. It is especially wise to seek legal advice before lodging a dispute with the Commission because your lawyer can advise you on your entitlements, how to lodge an application in the Commission and what to expect.

11. You must think carefully about what you need to win your case, before you decide to represent yourself. To win your case, you need to:

(a) bring to the Commission the evidence that will prove that the facts are as you say they are;

(b) find and understand the law which applies to your case; and

(c) demonstrate to the Commission how the law applies to the facts in your case and that the Commission should decide the case in your favour.

12. You might decide that it is better to find a lawyer to advise or represent you. Lawyers are legally trained, so they know how to bring evidence to the Commission. They also know how to find and understand the law which applies to your case.

13. Our Fact Sheet “Obtaining legal representation for your personal injury dispute” provides information on the different types of legal help available. You may be able to get help from:

• The Independent Review Office (IRO)
• Approved legal assistance services (e.g. the CTP Legal Advisory Service)
• The resources available on the Commission’s website which outline the Commission’s processes (see our Fact Sheets and Videos). However, these resources are not legal advice.

Using Generative AI, social media and online resources

14.  In preparing and conducting your case, you must be aware of the Commission’s requirements relating to the use of Artificial Intelligence (AI). These can be found at rules 33A and 33B of the Commission’s Rules and Procedural Direction PIC13 - Use of Generative Artificial Intelligence.

15.  You must not use Generative Artificial Intelligence tools to draft, embellish or produce any witness statements you wish to supply to the Commission as evidence. This is forbidden and any breach of this requirement would, once discovered, mean that the statement may not be considered by the Commission in deciding your case.

16. Do not rely on AI programs (such as Chat GPT, Claude, or Google Gemini) for legal help about whether you have a case you can win. Such programs are not reliable and may give you responses that are based on American law, or law in other countries or states, which is different from Australian law or NSW law.

17. Also, do not rely on social media or pseudo law sites for legal help of any kind. They may give incorrect information that the Commission will not accept because it is not based on real law. Making legal arguments to the Commission that are not based on real law can get you into serious trouble, and hinder the chance of you winning your case.

18.  AI programs can give false and wrong answers to legal questions. AI-generated material may include citations, case law and legislative references that do not actually exist, are not accurate, or are not relevant to your case before the Commission.

19.  If you wish to use AI programs to generate submissions (legal arguments), you must check that they are correct and in accordance with law. You have an obligation to check that any legislative references and case law actually exist, and are relevant to your case. If they are wrong, and you rely on them to argue your case, it will undermine the integrity of your case, any decision made, and the confidence that the public has in determining disputes fairly. It may even result in the Commission determining that you are not able to continue with your case.

20.  There are many other free legal research databases you can use to check the law. Examples of free legal research databases include AustLII and NSW Caselaw.

Your role as a self-represented litigant in the Commission

21.  Being a self-represented litigant in the Commission comes with serious responsibilities.

22.  If you decide to represent yourself, you will have the same responsibilities as a lawyer. This means that you will need to properly prepare documents, gather evidence, and strictly follow the Rules and Procedural Directions of the Commission.

23.  You must only bring a case (that is, an application, claim, or an appeal) if you can support it with facts and law. This means you must have evidence to prove your case, and law that supports your case. A case that is not supported with relevant facts and law will not be allowed to continue, because it doesn’t have a proper basis for being decided by the Commission.

24.  You must only use the Commission to solve legal disputes, not as a way of getting back at someone.

What we do

25.  The Commission’s main work is to decide cases. It needs to decide three important things in each case:

(a) what are the facts (that is, what happened)?

(b) what is the law (that is, what law or rules apply to a case of this kind)?

(c) how does the law say that the Commission should decide the case?

26.  The Commission might not be able to decide all the legal issues that you have. It can only decide certain legal issues, that is, those that are within what we call the Commission’s jurisdiction.

27.  Our mission is to facilitate the fair, timely, and cost-effective resolution of disputes between injured people, employers, and insurers – helping them settle claims without the need for lengthy, expensive legal proceedings.

Accessibility

28.  The Commission is committed to making sure that everyone has equal access to our services. If you would like the help of an interpreter, we can arrange it at no cost to assist you in your dispute.

29.  If reading is hard for you, or your English is poor, you will need to get help because, as a self-represented litigant, you must be able to clearly explain yourself.

30.  You should tell the Commission as soon as you can if you do not speak English and you need an interpreter. Make sure you tell the Commission what language you speak. Remember, interpreters are not lawyers. They cannot give you legal advice.

31.  If you are deaf, hard of hearing, speech impaired or need accessibility assistance to attend proceedings or a medical assessment, we can assist you. All Commission offices, including regional locations, cater for people with disabilities. We will make arrangements to make sure you have the necessary support.

32.  The Commission’s dispute resolution services are free, including medical assessments. However if you don’t attend a medical appointment without telling us beforehand, or without good excuse, your matter may be delayed, or if this happens on multiple occasions, your matter may be dismissed.

33.  You will need access to a computer because all applications must be submitted digitally through the Commission’s Pathway Portal. This means all applications (i.e. starting and lodging a dispute form) are filed online. The Pathway Portal is the Commission’s secure digital case management platform which serves as a central hub where injured individuals, legal representatives and insurers can lodge applications, track the status of their case, submit documents and communicate with the Commission. Resources regarding Pathway are available on the Commission’s website.

How we do our work

34.  The Commission uses decision-makers to decide disputes. They are Members, Merit Reviewers, Medical Assessors, and certain Commission staff who have power to decide disputes. These decision-makers are independent and impartial. This means that they decide only on the facts, evidence, submissions and the law. They are not under any pressure or influence from the government or others.

35.  The Commission is a tribunal, not a court, but most of our decisions are legally binding.

36.  Cases before the Commission move through varying dispute pathways, including preliminary conferences, conciliation/arbitration hearings, or medical assessments by independent doctors to determine the level of impairment (how injured you are).

37.  While our processes are generally less formal than court proceedings, we follow structured legal procedures, evidence and statutory interpretation.

Our Registry

38.  If you decide to go ahead with your case without a lawyer, but are unsure about the next steps, please visit our website for information, or contact the Commission’s Registry.

39.  If you have questions about your case, you should ask Registry staff. Registry staff can tell you, in a general way, about the way the Commission works and about hearings and interpreters. They can help you navigate the Commission’s Pathway Portal.

40.  Our Registry can be contacted either by emailing help@pi.nsw.gov.au, or by phoning 1800 742 679 (1800 PIC NSW) within Australia between 8.30 am – 5.00 pm (Monday to Friday (except public holidays)).

41.  Registry staff cannot give you, or any other party to the dispute, legal advice. They cannot give you an advantage over any other party in your case.

42.  Registry staff cannot help you decide, for example, whether you should start a claim or an appeal in the Commission, or tell you how to draft legal documents, or how to present your evidence or your case in the best way. They also cannot tell you what you, or any witness, should say in any statement or hearing.

43.  Registry staff cannot let you speak directly with a Member. You can only speak directly with a Member when invited to do so during a preliminary conference or hearing of your matter.

How the Commission reaches a decision

44.  The Commission relies on specially appointed decision-makers, Members (independent, highly experienced decision-makers) and Medical Assessors to resolve disputes between parties. They evaluate evidence, such as medical records, statements, investigation reports, and submissions to make legally binding decisions.

Members

45.  The main work of a Member is to assist the parties to resolve the dispute. If settlement is not possible, the Member will decide your case by considering the facts and the law. A Member will hold a preliminary conference or conferences to control the way your case is prepared. The Member will make directions at those preliminary conferences about the steps to be taken by all parties in your case. Those directions may include times for filing documents in the Commission.

46.  Each case is allocated to one Member to manage, up to and including the final hearing. You cannot choose the Member who will manage or decide your case.

47.  A Member might decide that they cannot hear your case because of bias. This is rare. It might happen if the Member finds that they have a close relationship with one of the parties, or one of the witnesses, in your case.

48.  A Member is not biased just because they say they agree with what a party argues. If the Member decides they cannot hear your case, the Commission will arrange for another Member to take over the case.

49.  A Member might raise legal issues and ask the parties what they say about those issues. They might give early views about some issues, or about problems with a party’s evidence or arguments. This does not mean that the Member has decided the case. It also does not mean the Member is biased. It is part of the role of the Member to find out what the case is about and to ask questions to work out the law that might apply. The Member does this to understand the legal issues to be decided in the case.

Medical Assessors

50.   Medical Assessors are independent, highly experienced medical decision-makers appointed by the Commission. They are not appointed by you or your opponent. Because their determinations can directly impact payouts and entitlements, they must follow strict ethical and procedural guidelines.

51.  Medical Assessors do not provide clinical advice or treatment to you. Their primary role is to independently examine claimants or workers before the Commission, review medical evidence, and issue legally binding decisions and certificates on medical disputes regarding injuries.

52.  They handle specific and highly technical parts of personal injury claims. Their duties include:

• Evaluating Permanent Impairment: Assessing the degree of Whole Person Impairment (WPI) resulting from a workplace or motor accident injury.
• Reviewing Clinical Evidence: Analysing medical reports, imaging (e.g., X-rays, MRI scans), and investigations.
• Physical and Psychiatric/Psychological Examinations: Performing clinical examinations and evaluations of an injured person.
• Issuing Certificates: Issuing a binding Medical Assessment Certificate (MAC) that outlines their findings, reasons, and impairment percentage.
• Serving on Panels: Sitting on medical review or appeal panels to re-examine disputed decisions.

Things you need to know coming to the Commission

53.  You are responsible for handling your case. Your rights and entitlements depend on your individual circumstances and the applicable law.

54.  Be aware that there are usually lawyers representing the other parties in a dispute. These legal representatives will be there to help their client and to act in their client’s best interests. They are not there to help you present your case or advise you on how good your case is. The other party’s lawyer cannot give you legal advice, and is not obliged to assist you in the handling (i.e. conduct) of your case.

55.  The lawyer for a party must pass on to their client anything you say to them. Think about whether you want the other side to know something before you let the lawyer for the other side know.

56.  Always act respectfully and honestly when dealing with the Commission’s decision-makers and staff, all legal representatives and other parties to the case, including any witness. Everyone, including you, is expected to always behave politely and fairly towards each other whether you are communicating in writing, in person, or on the phone. You must not shout, swear, threaten or be rude to anyone.

57.  Only contact the Commission when you have to, or when your contact relates directly to your case. When you write to the Commission (for example, by email or letter) make sure that you include the legal representatives of all other parties, so they know. Commission staff and Members cannot write to one party without the other parties knowing.

58.  If you need to email the Commission, do not send multiple similar emails or try to argue your case in emails or via the messaging function in Pathway. The time and place for putting forward your case is during Commission hearings or in documents that you have been directed by the Commission to provide.

59.  You must do what the Commission orders or directs you to do. For example, you must lodge any documents by the time the Commission has fixed in its orders/directions for lodgement of that document. If you do not comply with the Commission’s order/direction, the Commission might not allow you to continue with your case.

60.  You must attend all Commission hearings, preliminary conferences and other listings at the right place and the right time. You will be notified of your required attendance, and it is up to you to make sure you are aware of these things. If you do not attend a hearing at the right place and time, you might not be allowed to continue with your case.

61.  The Commission also expects the parties to co-operate in preparing for the final hearing of the case. You should make a polite request of the lawyer for the other parties if there is something that you think should happen in the case. You may be able to agree. This could save time and cost.

62.  If you have the opportunity to settle a case, negotiations must be entered into in good faith by all parties. This means with honesty, sincerity, and integrity. Each party, including you, must treat negotiations as a genuine opportunity to reach agreement on some or all issues.

63.  Negotiations are typically entered into on a ‘without prejudice’ basis. That is, the parties in the dispute will often mark their correspondence ‘without prejudice’ when negotiating a settlement. This means that neither party can tell the Commission about admissions or settlement offers made which were part of the negotiations but not agreed between the parties. This way, parties can speak freely about the matters in dispute without the risk of the other using that information against them later, if negotiations fail. ‘Without prejudice’ negotiations can encourage genuinely helpful discussion which allows parties to work towards a compromise.

64.  You must work with the other parties to end the dispute. You might not like the other parties or trust them, but you should still try your best to resolve the dispute. You should think about the risks of continuing with your case when you could end the dispute by agreeing with the other parties.

Key things to remember

Prepare thoroughly

65.  Gather and organise your evidence (e.g. medical reports, employer information and witness statements). This information will help you prove your case.

66.  Understand the Procedural Directions and Rules relevant to your dispute as well as any applicable case law and legislation.

67.  Think about what orders you want the Commission to make. Only ask for orders that the Commission can actually make.

Explain what happened

68.  Be clear and specific about how your injury occurred (what happened and when), and how it affects you, when describing it to the Commission.

69.  Be clear and concise in your explanation. Do not repeat yourself.

70.  Only include facts and law that will help to end the dispute. Do not include things that are not part of the dispute. Too much information will not help your case.

Meet deadlines

71.  Follow all timeframes and directions from the Commission. If you do not follow them, your case can be delayed, paused or even stopped from continuing.

72.  Provide complete and accurate information early – you may not be able to add documents later.