(2) If a claim is exempt from assessment under this Division, the President must, as soon as practicable, arrange for the issue to the insurer and the claimant of a certificate to that effect (enabling court proceedings to be commenced in respect of the claim concerned)."

1. Rule 99 of the Personal Injury Commission Rules 2021 (PIC Rules) applies to the application.
2. The rule states:

"99 Consideration of discretionary exemption from claims assessment

(1) A claimant or insurer may apply for an exemption from assessment under section 92(1)(b) of the MAC Act or section 7.34(1)(b) of the MAI Act by lodging an application.

(2) In determining whether a claim is not suitable for assessment for the purposes of section 92(1)(b) of the MAC Act or section 7.34(1)(b) of the MAI Act, the Commission must consider the objects of the PIC Act and the circumstances of the claim.

(3) Without limiting the matters that may be considered, the Commission may consider the following -

(a) whether the claim involves complex legal or factual issues, or complex issues in the assessment of the amount of the claim,

(b) whether the claim involves issues of liability, including contributory negligence, fault or causation,

(c) whether a claimant or witness, considered by the Commission to be a material witness, resides outside the State,

(d) whether a claimant or insurer seeks to proceed against one or more non-CTP parties,

(e) whether the insurer alleges that a person has made a false or misleading statement in a material particular in relation to the injuries, loss or damage sustained by the claimant in the accident giving rise to the claim."

1. Procedural Direction MA5 (PD5) applies to the application for exemption. PD5 indicates that an application for exemption may be made before a Member in the course of the general assessment of a claim.

1. In _IAG Limited t/as NRMA Insurance v Khal_ed [2019] NSWSC 320 Bellew J at [27], when considering the meaning of "suitable" in the context of s 92(1)(b) of the Motor Accidents Compensation Act 1999 (the MAC Act), found that the word is to be given its natural and ordinary meaning. His Honour relied on the Macquarie Dictionary definition of "suitable", namely "[s]uch as to suit; appropriate, fitting, becoming". This is the meaning that I have applied to "suitable".
2. I note s 92(1)(b) of the MAC Act is expressed in the same terms as s 7.34 (1)(b) of the MAI Act, identified above.

1. The task I am mandated to make in respect of the application as identified in Khaled is to make a preliminary assessment of the claim and determine whether the claim is not suitable for assessment pursuant to s 7.34(1)(b) of the MAI Act.

Complex issues in the assessment of the claim - Rule 99(3)(a)

1. In my assessment, the issue of the claimant's earnings and her economic loss claim does not at first glance appear to be complex, except for the fact the claimant does not appear to be forthcoming with reasonable requests for what should be readily available/ accessible information from her employer/s, Centrelink and herself and which she should be able to facilitate. The failed attempts by her solicitors to provide this further information and their subsequent action in ceasing to act, lead me to consider the insurer's request for an exemption falls within the meaning of "suitable" as identified in paragraph [24] above.

Compellability of witnesses at the Commission

1. The Commission simply cannot compel non-parties to appear or produce documentation, the parties identified by the insurer are non-parties, the documentary evidence and their verbal evidence is critical to supporting the claimant's claim, where there are many unexplained inconsistencies which have not been sufficiently addressed/answered by the claimant and where she has been afforded a number of opportunities to do so.
2. In my assessment, a court hearing has the distinct advantage of affording the parties a better opportunity for proper and fair cross examination of witnesses, the ability to compel the attendance of witnesses to attend a hearing by way of subpoena, and the ability to issue subpoena for production.

False and misleading allegations - Rule 99(3)(e)

1. Further, in my assessment the insurer has identified that the paucity of what appears to be reliable and accurate pay slip records and the conflicting information about periods of employment with the claimant's employers and the conflicting Centrelink receipts, which support the insurer's submission that the claimant has made a false or misleading statement in a material particular in relation to the her alleged loss or damage in the accident giving rise to the claim.

Other relevant considerations - just, quick and cost effective - Rule 99(3) - "without limiting the matters that may be considered"

1. I consider a court hearing is more likely to result in the just, quick and cost-effective resolution of the real issues in dispute between the parties when compared to an assessment by the Commission under Division 7.6 of the MAI Act, given the nature of the matters in dispute and the limitations on the process and procedure applied in Commission proceedings. No such limitations would arise in court proceedings.

1. Having regard to the matters identified in paragraphs [27- 31], I consider a court with powers of compulsion and contempt will resolve the matters in dispute more efficiently and effectively as identified in Khaled, bearing in mind the comparative limitations and advantages of an assessment by the Commission on the one hand and a court hearing on the other, particularly where there are allegations of false and misleading statements by the claimant.
2. Accordingly, in my assessment, it is not appropriate for the claim to be assessed by the Commission.

1. Having made a preliminary assessment of the claim, I determine for the reasons set out above that this claim is not suitable for assessment under s 7.34(1)(b) of the MAI Act and I recommend to the President that it be exempt from assessment.