MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; application for damages; claimant's application for exemption under section 7.34(1)(b); late claim pursuant to section 6.14; the Personal Injury Commission's (Commission) earlier decision determined that the claimant did not have a full and satisfactory explanation for the delay; Gudelj v Motor Accidents Authority of New South Wales considered; consideration and application of rule 99 of the Personal Injury Commission Rules 2021 and objects as set out in section 3 of the Personal Injury Commission Act 2020; Held - claim is not suitable for assessment by Commission based on preliminary assessment; recommendation that claim be exempt; recommendation subsequently approved by the Division Head, as the President's delegate.

1. Having made a preliminary assessment of the claim, I determine that this claim is not suitable for assessment under s 7.34(1)(b) of the Motor Accident Injuries Act 2017 and recommend to the President that it be exempt from assessment.

A statement setting out the Personal Injury Commission's reasons is annexed below.

RECOMMENDATION - CLAIM NOT SUITABLE FOR ASSESSMENT

1. On 29 November 2018, Ursula Botros (claimant) was involved in a motor vehicle accident (accident). On 24 August 2023, Ms Botros lodged an application for common law damages on Allianz Australia Insurance Limited (insurer). There is no dispute that this application was lodged outside the statutory timeframe provided by s 6.14 of the Motor Accident Injuries Act 2017 (MAI Act).
2. On 24 October 2023, the insurer issued a liability notice in respect of Ms Botros's damages application. The insurer admitted breach of duty of care but denied liability on the basis that Ms Botros's injuries resulting from the accident were assessed as "threshold" injuries, and that Ms Botros had not provided a full and satisfactory explanation for the delay.
3. The insurer's determination that Ms Botros had not provided a full and satisfactory explanation for the delay was subject to an application that was determined by the Personal Injury Commission (Commission) on 30 October 2025. In that decision, the Commission determined that Ms Botros had not provided a full and satisfactory explanation for the delay.
4. Ms Botros has now made an application under s 6.14(5)(c) of the MAI Act, seeking a certificate of exemption from assessment under s 7.34(1)(b) of the MAI Act, which will allow her to commence proceedings in the District Court of New South Wales.

1. Section 6.14 of the MAI Act provides for the time for the making of a claim for damages and states:

(2) A claim for damages must be made within 3 years after the date of the motor accident to which the claim relates. The regulations may amend this subsection to change the period within which the claim must be made.

(3) A claim for damages may be made after the time required by subsection (2) (a late claim) if the claimant provides a full and satisfactory explanation for the delay in making the claim. The explanation is to be provided in the first instance to the insurer.

(4) Evidence as to any delay in the onset of symptoms relating to the injury suffered by the injured person as a result of the motor accident may be given in any such explanation.

(5) If a late claim for damages is made, the claim cannot be referred for assessment under Division 7.6 unless -

(a) the insurer has lost the right to reject the claim on the ground of delay, or

(b) the Commission has determined that the claimant has a full and satisfactory explanation for the delay in making the claim, or

(c) the claim is referred only for a certificate of exemption from assessment under Division 7.6.

(6) The insurer loses the right to reject a late claim on the ground of delay if the insurer -

(a) does not, within 2 months after receiving the claim, reject the claim on the ground of delay or ask the claimant to provide a full and satisfactory explanation for the delay, or

(b) does not, within 2 months after receiving an explanation for the delay, reject the explanation.

(7) The insurer may apply to the court in which proceedings on a late claim for damages are commenced to have the proceedings dismissed on the ground of delay if -

(a) the application to have the proceedings dismissed is made not more than 2 months after the statement of claim is served on the defendant and received by the insurer, and

(b) the insurer has not lost the right to reject the claim on the ground of delay.

The court must dismiss the proceedings unless satisfied that the claimant has a full and satisfactory explanation for the delay in making the claim.

(8) In this section, insurer includes the person against whom a claim for damages is made."

1. Section 6.31 of the MAI Act sets out the pre-conditions of the commencement of court proceedings and provides:

"6.31 Claims assessment or exemption pre-condition for commencement of court proceedings (cf s 108 MACA)

(1) Subject to Division 3.2 of the Personal Injury Commission Act 2020, a claimant is not entitled to commence court proceedings against another person in respect of a claim unless -

(a) the Commission has issued a certificate in respect of the claim under section 7.34 (Claims exempt from assessment), or

(b) the Commission has issued a certificate in respect of the claim under section 7.36 (Assessment of claims).

(2) The provisions of this section are in addition to those of section 6.32 (Time limitations on commencement of court proceedings). Accordingly, both sections are capable of applying to a claim."

1. Section 7.34 provides for "claims exempt from assessment" and provides:

(1) A claim is exempt form assessment under this Division if -

(a) the claim is of a kind specified in the regulations as a claim that is exempt from assessment under this Division, or

(b) the Commission has made a preliminary assessment of the claim and has determined (with the approval of the President) that the claim is not suitable for assessment under this Division.

(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) provides:

"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. Section 52(3) of the Personal Injury Commission Act 2020 (NSW) (PIC Act) provides:

"(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing."

1. At the preliminary conference on 22 January 2026, I notified the parties that I considered it appropriate to determine this matter on the papers and made directions for the parties to inform the Commission by 5.00pm on 28 January 2026 if either party objected. The claimant confirmed that she was content for the matter to be determined on the papers, and no objection was received from the insurer.
2. Having considered s 52 of the PIC Act, Procedural Direction PIC2 and the documents before me, I am satisfied that I have sufficient information available to me to allow me to determine the issues in dispute 'on the papers' and without holding a formal hearing, and that this is the appropriate course in the circumstances.

1. There were two preliminary conferences in this matter, held on 15 January 2026 and 22 January 2026. The procedural history of this application and a summary of both conferences is set out in the preliminary conference report dated 22 January 2026.

1. Ms Botros relies on written submissions dated 2 December 2025.
2. She submits that she intends to have the late claim dispute determined by a Judge in the District Court of New South Wales, which will be a determination that is binding on the parties. Accordingly, she is referring the matter for a discretionary exemption noting the operation of s 6.14(5) of the MAI Act.
3. Ms Botros submits that the basis for the discretionary exemption application is:

(a) there are complex legal and factual issues;

(b) the decision dated 30 October 2025 in relation to the late claim is not binding on her, and

(c) the intention of the statutory scheme is to give a court the final say as to whether there is a full and satisfactory explanation for delay.

1. In respect of her submission (b), Ms Botros submits that, as the decision dated 30 October 2025 falls within the definition of a miscellaneous claims assessment matter, it is not binding on her as it relates to a claim for damages: s 7.42 of the MAI Act.
2. In respect of her submission (c), Ms Botros relies on the decision of Justice McDougall in Gudelj v Motor Accidents Authority of NSW [2010] NSWSC 436 (Gudelj No 1) and extracted his Honour's reasons at [101].

1. In advance of the preliminary conference on 15 January 2026, the insurer lodged written submissions dated 19 December 2025. The insurer submitted that the effect of the Commission's decision dated 30 October 2025 is that there is no claim and therefore no claim to be exempt.
2. However, following consideration of the matter of Gudelj v Motor Accidents Authority of New South Wales (2011) 81 NSWLR 245; [2011] NSWCA 158 (Gudelj No 2), the insurer confirmed at the preliminary conference on 22 January 2026 that it neither consented to nor opposed the claimant's application.

1. I note the operation of ss 6.14(5) and 6.31(1) of the MAI Act. Accordingly, as Ms Botros has made a late claim, and as neither of ss 6.14(5)(a) or (b) apply, the only way her application for damages may progress is if she obtains a certificate of exemption from assessment.
2. In Gudelj No 2, the Court of Appeal considered an appeal from two decisions made by the Claims Assessment and Resolution Service (CARS), established under the Motor Accidents Compensation Act 1999 (MAC Act). Relevantly, the first decision was that that Mr Gudelj was not entitled to make a late claim in respect of his injury, and the second was that his claim could not be referred for assessment nor exempted from assessment under the MAC Act. This prevented him from bringing court proceedings in respect of his claim.
3. Hodgson JA, with whom Giles JA and Handley AJA agreed, concluded in obiter:

"[77] All of these considerations suggest that the intention of the legislature was that claimants could, as a last resort, have recourse to the courts to determine their rights; that claimants should generally not be shut out of an arguable claim before the courts by reason of a s 96(1)(a) assessment; and accordingly that there could be a reasonable decision in this case to grant the certificate."[1]

1. I have been guided by the obiter comments of the Court of Appeal in Gudelj No 2 in determining whether it is appropriate to recommend that Ms Botros's claim be exempt from assessment pursuant to s 7.34(1)(b) of the MAI Act.
2. As required by r 99(2) of the PIC Rules, I have also considered the objects as set out in s 3 of the PIC Act and the circumstances of the claim. The objects of the PIC Act include ensuring that the Commission is responsive to the needs of all its users, to promote public confidence in the decision-making of the Commission, and to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible. Noting that the claimant submits the Commission's previous determination is not binding on her, and in circumstances where the claimant is currently unable to have her claim referred for assessment by the Commission by the operation of s 6.14(5) of the MAI Act, I consider that the claim should be exempt from assessment by the Commission.
3. While I do not consider that any of the matters listed in r 99(3) of the PIC Rules are relevant to the current claim, I note that this rule is specifically prefaced to not limit the matters that may be considered in determining whether a claim is not suitable for assessment.
4. I also note that the insurer neither consents to nor opposes the claimant's application for discretionary exemption.

1. Having made a preliminary assessment of the claim, taking into account the objects of the PIC Act, I determine 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.
2. In accordance with s 7.34(1)(b) of the Motor Accident Injuries Act 2017, the Division Head (Motor Accident Division) as Delegate of the President, on 2 March 2026, approved Member Bianca Montgomery-Hribar's recommendation that the claim is not suitable for assessment.

[1] Section 96(1)(a) of the MAC Act regarded a dispute between a claimant and an insurer as to whether a late claim may be made in accordance with section 73 of that Act.