Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361
[1970] HCA 8
Re McBain
Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372
[2002] HCA 16
Sweedman v Transport Accident Commission (2006) 226 CLR 362
[2006] HCA 8
Watson v Marshall and Cade (1971) 124 CLR 621
[1971] HCA 33
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480
Judgment (21 paragraphs)
[1]
CA 8
Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372; [2002] HCA 16
Sweedman v Transport Accident Commission (2006) 226 CLR 362; [2006] HCA 8
Watson v Marshall and Cade (1971) 124 CLR 621; [1971] HCA 33
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43
Texts Cited: Motor Accident Guidelines (version 7)
Category: Principal judgment
Parties: Graham Searle (Appellant)
Malcolm McGregor (Respondent)
Representation: Counsel:
J B Turnbull SC / S Warren / R D Turnbull (Appellant)
A Stone SC / M Holz / J Magee (Respondent)
[2]
Solicitors:
Holman Webb Lawyers (Appellant)
Don Cameron & Associates (Respondent)
File Number(s): 2022/8530
Publication restriction: Nil
Decision under appeal Court or tribunal: District Court
Jurisdiction: Civil
Date of Decision: 15 December 2021
Before: Grant DCJ
File Number(s): 2021/297757
[3]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[4]
HEADNOTE
[This headnote is not to be read as part of the judgment]
Section 26 of the Personal Injury Commission Act 2020 (NSW) was enacted as a legislative response to the restriction recognised in Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15. That restriction is to the effect that a State Parliament lacks legislative capacity to confer on a State administrative tribunal judicial power to determine any matter of a kind described in ss 75 or 76 of the Constitution.
The section provides that the District Court may grant leave for an application concerning a compensation or damages claim arising pursuant to the workers compensation or motor accident schemes to be made to that Court instead of the Personal Injury Commission (PIC). Leave may only be granted under s 26(3) where the District Court is satisfied of three matters: (a) that an application was first made to PIC or its President; (b) that determination of the matter by the usual decision-maker would involve an exercise of federal jurisdiction; (c) that the usual decision-maker would otherwise have had jurisdiction to determine the application. An application for leave must be accompanied by the relevant application needing determination, completed in the form and manner required under the relevant statutory scheme.
Mr McGregor was injured in a motor vehicle collision with Mr Searle in Albury. At all material times, Mr McGregor resided in NSW and Mr Searle in Victoria. Mr Searle was indemnified by the Transport Accident Commission of Victoria.
Mr McGregor wished to make a claim for common law damages against Mr Searle consistently with the Motor Accident Injuries Act 2017 (NSW). Certain preconditions for making such a claim had not yet been satisfied.
Mr McGregor made an application to the District Court under s 26 by way of filing a statement of claim, which claim also sought damages. On the hearing of the application, however, Mr McGregor sought to proceed by way of summons only such that his claim for damages was not being immediately pursued. In effect, Mr McGregor sought to "park" his matter in the District Court.
Prior to making his application under s 26 Mr McGregor's solicitors had submitted a PIC Application form to PIC seeking resolution of an issue or dispute. However, the only application actually made in that form was for PIC to grant leave to proceed in the District Court. There is no statutory power for PIC to grant such leave. Mr McGregor did not identify any particular issue or dispute which he sought to be determined in either his application to PIC or to the District Court.
The primary judge delivered an ex tempore judgment holding that the requirements of s 26 had been met.
The Court (per Kirk JA, Bell CJ and Ward P agreeing) granted leave to appeal and upheld the appeal, holding as follows:
[5]
Judgment
BELL CJ: I agree with the reasons of, and orders proposed by, Kirk JA.
WARD P: I agree with Kirk JA.
KIRK JA: The High Court held in Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 (Burns v Corbett) that if a dispute arose in an administrative tribunal in a matter which was within federal jurisdiction then the tribunal had no jurisdiction to resolve the dispute. Such a dispute could only be resolved in a court exercising the judicial power of the Commonwealth. This appeal concerns the operation of the legislative response of the New South Wales Parliament to that constitutional limitation as regards claims that would otherwise fall within the jurisdiction of the Personal Injuries Commission (PIC).
That response is found within s 26 of the Personal Injury Commission Act 2020 (NSW) (PIC Act). The section grants the District Court a discretionary power to permit a "compensation matter application" to be made to and determined by that Court instead of PIC. The power may only be exercised if the Court is satisfied that the application was first made to PIC or its President, that determination of the matter by the usual decision-maker "would involve an exercise of federal jurisdiction", and that that decision-maker would otherwise have had jurisdiction to determine the application. The key terms of s 26 are set out at [60] below.
The dispute in this case arises out of a motor vehicle accident in Albury. The respondent, Mr McGregor, was injured in a collision with a vehicle driven by the applicant, Mr Searle, on 14 May 2020. Mr McGregor has resided in Albury in NSW at all material times, and Mr Searle in Wodonga in Victoria. Mr Searle's vehicle was registered in Victoria, and the compulsory third party insurance policy for the vehicle was issued by the Transport Accident Commission of Victoria (TAC). Mr McGregor has previously claimed statutory benefits and now wishes to make a claim for common law damages against Mr Searle consistently with the Motor Accident Injuries Act 2017 (NSW) (MAI Act).
In an ex tempore judgment given in Albury on 15 December 2021, Grant DCJ ordered that Mr McGregor had "leave to proceed in the District Court pursuant to s 26(3)" of the PIC Act. Related orders were made. No particular application was identified by Mr McGregor or the Court as requiring determination.
[6]
The limitation on tribunals exercising federal jurisdiction
In order to understand the meaning and effect of s 26 of the PIC Act it is necessary first to note the nature of the constitutional limitation to which it was responding. Burns v Corbett involved two cases in which claims had been made in the NSW Civil and Administrative Tribunal (NCAT) to determine disputes arising under the Anti-Discrimination Act 1977 (NSW). In each case the claimant resided in NSW and the respondent resided interstate. By the time the disputes reached the High Court the parties accepted the following points:
1. The disputes fell within federal jurisdiction, being matters between residents of different States within s 75(iv) of the Constitution: see at [38].
2. NCAT was not a court for the purposes of the Constitution and s 39(2) of the Judiciary Act 1903 (Cth): see at [39].
3. In the type of dispute in question NCAT "was exercising the judicial power of the State because it was able to render a binding, authoritative and curially enforceable judgment independently of the consent of the persons against whom his complaints had been brought": see at [27].
The issue in dispute was whether State tribunals that are not "courts" can adjudicate matters within federal jurisdiction, that is, matters of the kind identified in ss 75 and 76 of the Constitution. The High Court unanimously held that they cannot, albeit for somewhat varying reasons: Kiefel CJ, Bell and Keane JJ at [43] and [49]; Gageler J at [67]-[69], Nettle J at [145]-[146], Gordon J at [197]-[199] and Edelman J at [259]-[260]. NCAT thus could not determine the claims made in the two cases at hand; they could only be determined in courts.
The principle established was subsequently summarised by six members of the High Court in Citta Hobart Pty Ltd v Cawthorn (2022) 96 ALJR 476; [2022] HCA 16 in the following terms (at [1], citations omitted):
"Burns v Corbett held that a State Parliament lacks legislative capacity to confer on a State tribunal that is not a court of the State within the meaning of s 77(ii) and s 77(iii) of the Constitution judicial power with respect to any matter of a description in s 75 or s 76 of the Constitution. To ensure validity, a State law conferring State jurisdiction on a State tribunal must therefore be construed in accordance with applicable State interpretation legislation to exclude jurisdiction with respect to all such matters."
[7]
When a dispute falls within federal jurisdiction
A dispute will be within federal jurisdiction when resolution of the claim or issue in question would involve the exercise of judicial power such that there is a justiciable controversy (see Citta Hobart at [2]), and the dispute is of a kind that falls within the nine types of dispute comprehended by ss 75-76 of the Constitution. This case is within the diversity jurisdiction, that is, it is a matter between residents of different States (falling within s 75(iv)). That is so because the two parties, Mr McGregor and Mr Searle, reside in different States.
The issue of place of residence is to be determined as at the time that the jurisdiction in question is first invoked: Parente v Bell (1967) 116 CLR 528 at 529 per Windeyer J; [1967] HCA 19; Watson v Marshall and Cade (1971) 124 CLR 621 at 623-4 per Walsh J; [1971] HCA 33. If Mr Searle had moved to NSW after the District Court proceeding had commenced that would not have altered the fact that this case was in federal jurisdiction.
Another type of federal jurisdiction is where the dispute is between a State and a resident of another State (s 75(iv)). There is a wide range of disputes that may arise under statutory schemes such as the MAI Act and the workers compensation legislation. For some disputes the relevant disputants may be the claimant and the insurer of the other person involved (ie the other driver or the employer). Insofar as the dispute is properly characterised as being directly with the insurer, then whether or not the matter might be in federal jurisdiction will turn on the residence of the claimant and the nature of the insurer, and not depend on the residence or nature of the person insured. Thus if a dispute had arisen directly between TAC and Mr McGregor then the matter would have fallen within s 75(iv) given that Mr McGregor is a resident of NSW and TAC - which is a government instrumentality and not a private insurer - has been recognised as relevantly part of the State of Victoria: Sweedman v Transport Accident Commission (2006) 226 CLR 362; [2006] HCA 8 at [12].
[8]
PIC, the MAI Act and workers compensation scheme
Section 26 of the PIC Act must be understood within the broader legislative tapestry of which it forms part. A brief overview of the PIC Act, the MAI Act and the workers compensation scheme is therefore pertinent, with the main focus being on the MAI Act given the nature of the issues at hand. Section 26 of the PIC Act also potentially applies to remaining claims under the Motor Accidents Compensation Act 1999 (NSW), but as that legislation has been replaced by the MAI Act it suffices for current purposes to focus instead on the MAI Act.
The provisions are addressed here as at the time of the current proceedings being commenced in the District Court. Some of the provisions in the MAI Act have since been amended. Nothing appears to turn on those amendments.
[9]
PIC Act
PIC is established by Part 2 of the PIC Act. Not all of its members are required to be lawyers: s 10. It has two divisions, being the Workers Compensation Division and the Motor Accidents Division: s 12(1). PIC has the jurisdiction and functions conferred on it under the PIC Act and under the "enabling legislation" or other legislation: s 24. The enabling legislation is the workers compensation legislation and the motor accidents legislation: s 5(1).
The President of the Commission may appoint persons to be medical assessors for the purposes of the two legislative schemes, and may appoint merits reviewers for the purposes of the MAI Act: s 33. The President may also appoint persons to be mediators: s 39.
[10]
MAI Act
There are two broad categories of relief available to a motor accident victim under the MAI Act scheme: statutory benefits, and damages pursuant to other legal rights (typically at common law) to the extent permitted by the Act. Statutory benefits are addressed in Part 3 of the MAI Act, and include entitlements to funeral expenses, wage payments and treatment and care: Divs 3.2-3.4. Statutory benefits are payable by the relevant insurer: s 3.2. In some circumstances, the Nominal Defendant may stand in the place of an insurer.
A claimant's entitlement to damages is addressed by Part 4 of the MAI Act. Pursuant to s 4.3, the only heads of damage recoverable by a live claimant are economic loss as permitted by Div 4.2 and non-economic loss as permitted by Div 4.3. Damages cannot be claimed for certain "minor injuries": ss 1.6 and 4.4; Motor Accident Injuries Regulation 2017 (NSW) (MAI Regulation), reg 4. Claims for economic loss are restricted in various ways under Div 4.2. Damages for non-economic loss can only be awarded in relation to an injury if the degree of permanent impairment (WPI) exceeds 10%: s 4.11. If there is a dispute about whether the degree of impairment exceeds this amount then damages may not be awarded unless that degree has been assessed by a medical assessor under Div 7.5: s 4.12(1).
The bringing of claims for either statutory benefits or damages is regulated by Part 6 of the Act. Pursuant to s 6.12, a claim for either is in general made by giving notice of the claim to the relevant insurer. A notice of a claim must be given in the manner and containing the information required by the Motor Accident Guidelines: s 6.15(1). A person claiming damages must also give particulars of the claim: s 6.25. There is a range of time limits for the taking of various steps by both the claimant and the insurer. The claimant is obliged to cooperate with the other party to the claim in respect of making out the claim: s 6.24.
There is a defined temporal window for the making of a claim for damages. A claim cannot be made until 20 months have passed, unless the claimant's injuries exceed 10% WPI (and leaving aside claims relating to a death), but in general the claim must be made within three years after the date of the accident: ss 6.14, 6.32.
An insurer has a duty "to make a reasonable offer of settlement to the claimant on a claim for damages as soon as practicable unless the insurer wholly denies liability for the claim": s 6.22(1). However, a claim for damages cannot be settled within 2 years after the motor accident unless the degree of permanent impairment is greater than 10%: s 6.23(1).
[11]
Workers compensation scheme
Workers compensation claims are governed by both the Workers Compensation Act 1987 (NSW) (the 1987 Act) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 1998 Act). Part 3 of the 1987 Act governs entitlements to the various types of statutory benefit. Part 5 of the 1987 Act regulates the claiming of common law damages and other legal remedies. Just as for motor accident claims, there is a defined temporal window in which damages must generally be claimed: ss 151C-151DA. Similarly, there are limits on the damages that may be claimed: Part 5 Div 3. Notably, under s 151H(1), "[n]o damages may be awarded unless the injury results in the death of the worker or in a degree of permanent impairment of the injured worker that is at least 15%".
The 1998 Act governs the procedural requirements for the giving of notice of injury by both workers and employers: ss 254-258. It also prescribes the procedural requirements for the making of a claim for compensation and damages: ss 260-264. Relevantly, it prescribes the dispute resolution procedures for disputes brought under the scheme: ss 287-331.
As regards compensation matters (as opposed to damages), PIC "has exclusive jurisdiction to examine, hear and determine all matters arising under [the 1998 Act] and the 1987 Act", with some exceptions contained in the 1998 Act: 1998 Act, s 105. Any party to a dispute about a claim for compensation may refer the dispute to the President for determination by the Commission, with some restrictions: 1998 Act, s 288. The types of disputes which can be referred include inter alia the assessment of medical disputes.
The Commission does not have the jurisdiction to determine damages claims per se. It does have various roles to play in relation to such claims under Part 6 of Chapter 7 of the 1998 Act: note 1998 Act, s 105(2). That role includes undertaking medical assessments. Section 326(1) provides for the status of such assessments as follows:
An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned -
(a) the degree of permanent impairment of the worker as a result of an injury,
(b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c) the nature and extent of loss of hearing suffered by a worker,
(d) whether impairment is permanent,
(e) whether the degree of permanent impairment is fully ascertainable.
[12]
Facts
The motor accident in question here occurred on 14 May 2020 in Albury. On 28 July 2020 Mr McGregor submitted a claim for statutory benefits to PIC which detailed the circumstances of the accident.
On 17 September 2021 the solicitor for Mr McGregor wrote to TAC. After referring to the claim for statutory benefits which had been lodged, and identifying the vehicle at fault, the letter stated as follows:
"The Claimant now wishes to make a common law damages claim pursuant to [the] Motor Accident Injuries Act 2017.
In the normal course I would need to make application [sic] to the NSW Personal Injury Commission (PIC).
The PIC does not have jurisdiction to deal with a Federal Matter (this is such a matter). The PIC Regulations require an Application to the President of the PIC for leave and then a further Application to the NSW District Court for leave to proceed in that Court.
Do you require us to proceed with such applications or would you prefer to discuss settlement without instigation of such proceedings."
On 22 September 2021 Mr McGregor's solicitor submitted a PIC Application form to PIC (the PIC application). This standard form application required identification of the type of dispute, with boxes provided for merit review, medical assessment, claims assessment, or "unsure". The box for "unsure" was ticked. The form then asked for an explanation of what the dispute or issue was. The answer referred to some attached submissions, which relevantly stated as follows:
"Claimant's submissions in support of an application for exemption from the PIC …
1. The Claimant lodges this Application for leave as required by Section 26 of the Personal Injury Commission Act 2020.
2. The Claimant was involved in a motor vehicle accident in New South Wales on 14 May 2020.
3. The vehicle at fault was a Victorian registered vehicle, whose CTP insurer is the Transport Accident Commission of Victoria. …
6. The Claimant now wishes to make a common law claim pursuant to the Motor Accident Injuries Act 2017.
7. The Claimant seeks leave of the President or the Commission to proceed in the District Court of NSW in accordance with the requirements of Section 26 of the Personal Injury Commission Act 2020."
Paragraph 7 of the annexed submissions was misconceived. PIC has no power to give leave to proceed in the District Court under s 26 of the PIC Act; only the District Court has that power. It appears that the application was a superficial attempt to meet the requirement in s 26(3)(a), which provides that a compensation matter application must first be made to the President or Commission before the District Court can grant leave to determine it (as is explained further below).
[13]
Section 26 of the PIC Act
The federal jurisdiction issue considered in Burns v Corbett led the NSW Parliament to enact provisions to enable affected matters in NCAT to be heard in the Local or District Courts: Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), Part 3A. Those provisions were in fact enacted prior to the High Court decision but following the decision of this Court, which had held that NCAT was precluded from determining the claims due to s 39(2) of the Judiciary Act: note discussion in Gaynor v AGNSW at [47]-[49].
In the second reading speech for the introduction of the PIC Act, Minister Dominello said the following (Hansard, Legislative Assembly, 3 June 2020 at 2368):
"It is anticipated that a small number of applications to the commission may involve Federal jurisdiction. Division 3.2 of part 3 of the bill and consequential amendments to the District Court Act 1973 give affected parties a forum in which to resolve their dispute. These provisions allow certain persons, with leave of the District Court, to commence proceedings in the District Court for the determination of applications that the commission, or decision-makers appointed by the president, cannot determine because they involve the exercise of Federal jurisdiction."
It is apparent that Div 3.2 in the PIC Act has been modelled on the provisions of Part 3A in the CAT Act. The Division is headed "Determination of federal proceedings". Section 26 relevantly provides as follows:
26 Applications involving federal jurisdiction may be made to District Court
(1) A person with standing to apply to the President or the Commission for a matter concerning a compensation claim to be determined by the usual decision-maker (a compensation matter application) may, with the leave of the District Court, make the application to the Court instead of the President or Commission.
(2) The regulations may make provision for or with respect to -
(a) who has standing to make an application for leave, and
(b) excluding or including applications as compensation matter applications.
(3) The District Court may grant leave for a compensation matter application to be made to the Court only if it is satisfied that -
(a) an application was first made to the President or Commission, and
(b) the determination of the matter by the usual decision-maker would involve an exercise of federal jurisdiction, and
(c) the usual decision-maker would otherwise have had jurisdiction enabling the decision-maker to determine the application.
(4) An application for leave must be -
(a) filed with the District Court along with -
(i) an application that has been completed in the form and manner required under this Act or enabling legislation for the kind of compensation matter application concerned, and
(ii) if the parties to the compensation matter application have reached a settlement before leave is sought using a resolution process provided under this Act or enabling legislation - a copy of the terms of settlement, and
(b) accompanied by the applicable fee (if any) payable for the compensation matter application unless it has already been paid. …
[14]
The absence of an application requiring determination in this case
The requirement that there be a specific application requiring determination of some particular issue which is presented to the District Court, having been completed in the form and manner required, is fatal to Mr McGregor's position in this case. There was no such application here. Rather, Mr McGregor's solicitors sought simply to get the claim for damages into the District Court so as to reserve a place in the queue.
The application for leave did not include a duly completed application requiring determination, as required by s 26(4)(a)(i). Relatedly, the first criterion in s 26(3) - that an application of the kind required had first been made to the President or Commission - was not fulfilled. Nor was the third criterion, as it was not possible to ascertain whether the usual decision-maker would otherwise have had jurisdiction to determine the application without knowing who the usual decision-maker would be, which depends upon the type of application in question.
Senior counsel for Mr McGregor - who had not been involved in the application to the District Court - attempted to persuade this Court that the requirements of the provision had been met. He submitted that the PIC application dated 22 September 2021 was in substance an application for an exemption from the assessment of damages pursuant to s 7.34 of the MAI Act. It was not. Its relevant terms - quoted above at [47] - make no reference to the damages assessment process, or to the exemption provision. Rather, as the heading denoted, it was "an application for exemption from the PIC". What was sought, as stated in the last paragraph of the supporting submission, was "leave of the President or the Commission to proceed in the District Court of NSW in accordance with the requirements of" s 26 of the PIC Act. The fact that the application was misconceived because PIC is not authorised to give any such leave does not mean that the application should be characterised as something that it is not.
Senior counsel for Mr McGregor also sought to argue that there was a necessity under the legislative scheme for a claimant to be able to apply to the District Court even in circumstances where not all preconditions for commencing District Court proceedings had been met. He gave four examples:
1. A claimant, prior to determining whether to pursue a damages claim, seeks to have a minor injury dispute medically assessed.
2. A claimant, prior to determining whether to pursue a damages claim, seeks to have WPI medically assessed.
3. The tutor of a brain injured child whose case will not be ready for an assessment of damages for years to come applies for an exemption from PIC assessment of damages at a time when the claim was not ready for an assessment of damages, in order to comply with the 3 year limitation period on the commencement of proceedings in the District Court.
4. An unrepresented claimant seeks to have a settlement approved as required by s 6.23(2)(b) of the MAI Act.
[15]
TAC's arguments about preconditions
The focus of TAC's arguments in this Court was the suggestion that the referral to the District Court was premature given the failure to comply with what it said were two preconditions to the Court determining any damages claim made by Mr McGregor, invoking ss 6.15 and 6.25. These arguments are not determinative, for reasons explained below, but they do still have some relevance.
[16]
The provision of notice in the approved form
Section 6.15 of the MAI Act, as it stood at the time the matter came before the District Court, sets out how notice of a claim is to be made:
6.15 How notice of claims given (cf ss 74 and 76 MACA)
(1) A notice of a claim under this Division is to be given in the manner and containing the information required by the Motor Accident Guidelines. …
(4) The Motor Accident Guidelines may excuse non-compliance with this section in specified circumstances.
(5) If this section has not been complied with, a claim for damages cannot be referred for assessment under Division 7.6 unless -
(a) the insurer has lost the right to reject the claim for that non-compliance, or
(b) the Commission has determined that the non-compliance is technical and of no significance, 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 claim for damages for non-compliance with this section if, within 2 months after receiving the claim, the insurer does not reject the claim for the non-compliance.
(7) The insurer may apply to the court in which proceedings on a claim for damages are commenced to have the proceedings dismissed on the ground of non-compliance with this section 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 non-compliance with this section.
The court must dismiss the proceedings unless satisfied that the claimant has a full and satisfactory explanation for the non-compliance. …
The notice of a claim was thus to be to be given in the manner required by the Motor Accident Guidelines. Version 7 of the Guidelines was before the Court. Paragraph 4.116 provides that a person claiming damages must furnish the relevant insurer with the "CTP Green Slip Form - Application for damages under common law", containing information relevant to the claim as set out in Table 4.5 of Schedule 4.1 (the Guidelines actually refer to Table 4.4, but it is apparent that that is an error). A range of information is required to be provided. As noted above, Mr McGregor did not complete this application until well after the District Court's decision.
However, it is apparent from s 6.15 that the failure to provide such a notice does not necessarily preclude a claim for damages being made in the District Court. The insurer may lose the right to reject a claim if it has not made an objection within two months: s 6.15(6). And s 6.15(7) provides for a particular procedure to be followed in the District Court if objection has been taken.
[17]
The provision of sufficient particulars
The second claimed precondition relied on by TAC concerns Mr McGregor's failure to provide particulars of the claim. Section 6.25 of the MAI Act provides as follows:
6.25 Duty of claimant to provide relevant particulars of claim for damages (cf s 85A MACA)
(1) A claim for damages must provide the insurer of the person against whom the claim is made with all relevant particulars about the claim as expeditiously as possible after the claim is made.
(2) For the purposes of this section, relevant particulars about a claim are full details of -
(a) the motor accident concerned, and
(b) the injuries sustained by the claimant in the motor accident, and
(c) all disabilities and impairments arising from those injuries, and
(d) any economic losses and other losses that are being claimed as damages,
sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant's full entitlement to damages.
The consequences of failure to provide such particulars are identified in s 6.26:
6.26 Consequences of failure to provide relevant particulars of claim for damages (cf s 85B MACA)
(1) If after a period of 2 years and 6 months since the motor accident concerned a claimant for damages has failed without reasonable excuse to provide the insurer with all relevant particulars about the claim (as required by section 6.25), the insurer may by a written direction given to the claimant within 2 months after the end of that period require the claimant to provide those particulars.
(2) The insurer's direction must be given in accordance with the Motor Accident Guidelines.
(3) If the claimant does not comply with the direction within 3 months after it is given, the claimant is taken to have withdrawn the claim. …
Mr McGregor did not argue that particulars sufficient to satisfy s 6.25 had been provided. He accepted that if the claim for damages was to be pursued then such particulars would need to be provided. In effect he argued that compliance with this provision was not a necessary precondition of approaching the District Court in the way that had occurred here.
[18]
The significance of the arguments about preconditions
TAC's argument is that Mr McGregor "needed to comply with the various preconditions that he would have had to comply with when making application for determination of a damages claim in the PIC". As explained above, it is incorrect to suggest that PIC determines damages, leaving aside cases where liability is not disputed and the claimant chooses to accept PIC's assessment.
That aside, TAC's argument presupposes that Mr McGregor's application to the District Court was seeking damages. That presumption is incorrect. Damages had been sought in the statement of claim that was filed in that Court, but Mr McGregor's representatives effectively gave up any immediate pursuit of damages by the orders they sought and obtained in the hearing below, the effect of which was for the case to sit in the Court without any statement of claim.
There was a further potential problem if Mr McGregor had been pursuing a claim for damages. Section 6.14(1) of the MAI Act precludes a damages claim being made less than 20 months after the motor accident unless the degree of permanent impairment is greater than 10%. Mr McGregor's application to the District Court was filed less than 20 months after his accident and the statement of claim did not allege that he had suffered greater than 10% impairment.
In any case, as explained above the core problem with what was done was that Mr McGregor presented no application to the District Court - whether for damages or anything else - for determination.
It is thus not necessary here to determine what would have been the significance of the failure to comply with the two sections if damages had been pursued. Section 6.15(7) provides a remedy to an insurer where there has been non-compliance with the section. Similarly, s 6.26 addresses the consequences of a failure to provide the particulars required by s 6.25. It is not necessary to consider how those statutory remedies and consequences interact with the s 26 issues that arise here.
Nevertheless, TAC's broader submissions about the importance of the process set out by the MAI Act being followed are pertinent. They reinforce the construction of s 26 adopted here. The MAI Act seeks to encourage interaction between the parties, facilitate settlement negotiations and promote the early resolution of disputes. That process was described above. The objects of the Act, stated in s 1.3, include "to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes". Sections 6.15 and 6.25 are parts of that process. Similar points may be made about workers compensation claims. This approach is reinforced by s 3 of the PIC Act, which provides that the objects of that Act include "to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible".
[19]
The judgment below
Grant DCJ gave a brief ex tempore judgment in which he indicated that he was satisfied that the requirements of s 26 had been met, and stated:
"I do not accept [Mr Searle's] submission that an application to the District Court for leave to proceed can only be made by the injured person when his substantive application for assessment of damages was itself ready to proceed. Section 26(3)(c) vests jurisdiction to enable the decision maker to determine the application. It does not have to be done forthwith and may be done in futuro.
I am satisfied: (1) That the statement of claim and relief sought for leave pursuant to s 26(3) of the PIC Act is sufficient for the purposes of [s 26(4)(a)(i)] in that an application has been completed in the form and matter required under the Act …"
These reasons manifest legal error. No application had been provided that satisfied s 26(4)(a)(i). The implicit suggestion that the matter could be parked in the District Court in case any applications did require determination in the future is inconsistent with the section. His Honour also implicitly misconstrued s 26(3) in concluding that the first and third criteria had been satisfied when, as explained above, they were not satisfied in the absence of any particular application being presented to the Court for determination.
His Honour should have dismissed the application for leave under s 26(3).
[20]
Orders
It was not disputed by Mr McGregor that if the application under s 26(3) was dismissed then the consequence was that the proceedings would also be dismissed. An order should be made to that effect in the interests of clarity. That order does not indicate that there has been any determination of the merits of Mr McGregor's claim for damages.
The orders of the Court should be as follows:
1. Grant leave to appeal on grounds 1 and 4 in the draft notice of appeal.
2. The appellant is to file a notice of appeal in terms of the draft notice of appeal, but excluding grounds 2 and 3, within seven days.
3. Set aside the orders of the District Court made on 15 December 2021, and in lieu thereof order that:
1. the application for leave to proceed under s 26 of the Personal Injury Commission Act 2020 (NSW), and the proceeding, be dismissed;
2. there be no order as to costs.
1. The appellant is to pay the respondent's costs in this Court.
[21]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 26 October 2022
Parties
Applicant/Plaintiff:
Searle
Respondent/Defendant:
McGregor
Legislation Cited (14)
(Cth), Pts V and VI Workers Compensation Act 1987(NSW)
Section 26 should be construed in the context of the Burns v Corbett constitutional limitation to which it was responding. A dispute will only be within federal jurisdiction when resolution of the claim or issue in question would involve the exercise of judicial power such that there is a justiciable controversy, and the dispute is of a kind that falls within the nine types of dispute comprehended by ss 75-76 of the Constitution. The Burns v Corbett principle does not prohibit State administrative tribunals from taking steps or resolving issues which do not involve the exercise of judicial power: at [14], [22].
Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15, Citta Hobart Pty Ltd v Cawthorn (2022) 96 ALJR 476; [2022] HCA 16 at [1], Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372; [2002] HCA 16 at [61], considered.
Attorney General (NSW) v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254, Meringnage v Interstate Enterprises Pty Ltd (2020) 60 VR 361; [2020] VSCA 30 at [101], Gaynor v Attorney General of New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48 at [94]-[99], [124], [138], applied.
The reference in s 26 of the PIC Act to an "application" that had first been made to PIC or its President means an application to determine some particular dispute or issue that had arisen in the course of dealing with a claim. It is not a generic reference to claims arising from a workplace or motor accident injury: at [65].
In this case Mr McGregor did not present any application relating to a particular issue or dispute requiring determination. The application he did submit was beyond the power of PIC to determine. The requirement in s 26(4)(a)(i) had thus not been met, nor had the first and third criteria of s 26(3): at [76]-[77].
Mr Searle seeks leave to appeal against these orders. Leave to appeal is required as the decision of the District Court was interlocutory. It is convenient to refer to TAC as the proponent of the application as it is apparent that the application is brought because the broader issues of principle raised are of significance to TAC, rather than to Mr Searle. TAC has agreed to bear Mr McGregor's costs on appeal and not to seek costs for the hearing below. On that basis, Mr McGregor consents to leave being granted. It is clear that the case raises issues of principle and public importance. Leave should be granted with respect to proposed appeal grounds 1 and 4 on the agreed basis as to costs. The other grounds in the draft notice of appeal were not pressed.
The contest between the parties boils down to this. TAC submits that the criteria for making an order under s 26 of the PIC Act were not made out, in particular because certain procedural requirements in the MAI Act had not been complied with. Mr McGregor submits that the criteria of s 26 were sufficiently satisfied. That position is unsustainable. The criteria of s 26 were not satisfied. No issue or dispute requiring resolution was presented in proper form to the District Court. The appeal should be upheld.
This judgment addresses the issues that arise in the following order:
1. the constitutional limitation;
2. an overview of the statutory scheme involving PIC arising under the PIC Act, the MAI Act and the workers compensation scheme;
3. the factual background to the dispute;
4. construction of s 26 of the PIC Act; and
5. the absence of an application requiring determination in this case.
As manifest in this quotation, what is at issue is the exercise of judicial power in matters falling within ss 75-76 of the Constitution: see further Burns v Corbett at eg [49] per Kiefel CJ, Bell and Keane JJ, and [68] per Gageler J. The constitutional notions of federal jurisdiction, "matter" and the "judicial power of the Commonwealth" are interlinked: see eg Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372; [2002] HCA 16 at [61] per Gaudron and Gummow JJ.
State tribunals are not forbidden by the principle from taking steps or resolving issues which do not involve the exercise of judicial power, even if the dispute might otherwise be seen to fall within the scope of what would have been federal jurisdiction (that is, if judicial power were to be exercised). There is no suggestion that the Ch III restriction on allocation of decision-making authority at the State level is more restrictive than the restriction at federal level. It is well-established that federal tribunals are permitted to resolve a wide range of disputes arising under federal law so long as the exercise of power is not characterised as being judicial in nature: see eg Attorney-General (Cth) v Breckler (1999) 197 CLR 83; [1999] HCA 28 relating to the Superannuation Complaints Tribunal; Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board (2007) 231 CLR 350; [2007] HCA 23 as regards decisions of the identified board; Attorney-General (Cth) v Alinta Limited (2008) 233 CLR 542; [2008] HCA 2 with respect to the Takeovers Panel.
Since Burns v Corbett there has been a number of decisions of intermediate courts of appeal relating to whether particular issues could be determined by tribunals. Those decisions have turned on two key issues: whether or not the tribunals would be exercising judicial power in resolving the disputes in question; if so, whether the tribunals could be characterised as "courts" for the purposes of Ch III of the Constitution and s 39 of the Judiciary Act.
In this Court, for example, Attorney General (NSW) v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254 concerned two proceedings in NCAT under the Residential Tenancies Act 2010 (NSW). In one proceeding the Tribunal had made an order terminating a residential tenancy agreement; in the other it made an order for compensation in favour of the landlord. In both proceedings the parties were resident in different States, such that the dispute was potentially within federal jurisdiction. This Court held that determination of the claim for termination of the tenancy involved the exercise of judicial power (it was not disputed that the claim for compensation also involved such an exercise), and held that NCAT was not relevantly a court, such that the tribunal's orders in each case were beyond power.
The Victorian case of Meringnage v Interstate Enterprises Pty Ltd (2020) 60 VR 361; [2020] VSCA 30 concerned an application for orders in the Victorian Civil and Administrative Tribunal under the Equal Opportunity Act 2010 (Vic) to remedy alleged racial discrimination. The respondents included the Commonwealth. The matter was thus potentially within federal jurisdiction under s 75(iii) of the Constitution. The Court of Appeal explained at [101] that "[i]f this proceeding does not call for an exercise of judicial power … the proceeding might be readily determined by VCAT" (footnote omitted). But it held that the claim for relief in that case did call for an exercise of judicial power, that VCAT was not a court, and that the matter could therefore not be determined by that tribunal.
The High Court's recent decision in Citta Hobart concerned another discrimination claim arising under a State discrimination statute, this time in Tasmania. The Court held that in making the sorts of remedial orders at issue the relevant tribunal would be exercising judicial power: at [12]-[16], [53]-[57]. The respondent to the complaint asserted that the State statute was inconsistent with a federal anti-discrimination law and thus relevantly invalid. The whole dispute was therefore within federal jurisdiction because the controversy was a matter arising under the Constitution and under a law of the Commonwealth (within s 76(i) and (ii) of the Constitution).
It was suggested to this Court by senior counsel for Mr McGregor that PIC has taken the view that it is incapable of exercising any decision-making authority whatsoever in relation to claims which, if and when any aspect of the dispute was to be litigated, would fall within federal jurisdiction. If PIC has taken that view it is mistaken. What PIC is precluded from doing is taking steps which involve the exercise of judicial power in matters which would fall within federal jurisdiction. It is not precluded from exercising powers which are not judicial in relation to issues arising in the course of dealing with such disputes, even if any ultimate resolution of (say) a claim for damages would involve the exercise of judicial power needing to be determined by a court.
Analogously, in Gaynor v Attorney General of New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48 (Gaynor v AGNSW), Basten JA and Leeming JA each discussed that preliminary steps under anti-discrimination legislation, such as attempting conciliation, could permissibly be undertaken by administrative bodies, even when a final determination of the complaint would involve judicial power: at [94]-[99] per Basten JA; at [124] and [138] per Leeming JA.
Mr McGregor also submitted that determination of claims for statutory benefits under the MAI Act would be subject to the Burns v Corbett limitation. That is a submission open to substantial doubt, for it is questionable whether the various determinations of such benefits involve the exercise of judicial power. In that regard it is notable that claims for statutory workers compensation benefits in the federal sphere have long been, in general, determined first by an administrative agency (Comcare), with review rights in the Administrative Appeals Tribunal: Safety, Rehabilitation and Compensation Act 1988 (Cth), Parts V and VI. However, it is not necessary to address the issue of the nature of claims for statutory benefits here.
PIC's adjudicatory functions cover a wide range of issues arising under the MAI Act. It determines issues or disputes arising from "merit review matters", "medical assessment matters" and "miscellaneous claims assessment matters". Schedule 2 of the MAI Act lists over 40 types of dispute falling within these three categories. As noted above, the PIC Act makes provision for the appointment of medical assessors, merit reviewers and mediators.
Proceedings claiming damages may be brought in any court of competent jurisdiction: s 6.30. However, pursuant to s 6.31, a claimant is not entitled to commence such proceedings unless PIC has either issued a certificate of assessment under s 7.36 or issued a certificate under s 7.34 that the claim is exempt from assessment. Regulation 10 of the Personal Injury Commission Regulation 2020 (NSW) provides that s 6.31 does not apply to "compensation matter applications or substituted proceedings". This regulation appears to be meant to refer to applications made under s 26 of the PIC Act along with proceedings subsequently determined under s 27.
The "assessment" process is provided for in Div 7.6 of the MAI Act. The parties are obliged to have used their best endeavours to settle the claim before referring it for assessment: s 7.32(3). The assessment process involves PIC reaching its own conclusion as to liability (if disputed) and the amount of any damages payable, and it may also assess costs: ss 7.36-7.37. PIC's conclusion on liability is binding on neither side: s 7.38(1). The assessment of the amount of damages may be binding on the insurer (including as to costs), but only if (a) the insurer has admitted liability, and (b) the claimant chooses to accept the sum assessed by PIC within 21 days of the assessment: s 7.38(2)-(3). Other than for that limited potential binding effect, the assessment of PIC is an advisory opinion.
There are two categories of damages claim which are exempt from assessment by PIC, as provided for in s 7.34 of the MAI Act. The first category is claims which are specified in the MAI Regulation as being exempt from assessment. The second category is claims for which PIC has made a preliminary assessment and determined (with the approval of the President of PIC) that it is unsuitable for assessment. If the claim is exempt from assessment on either basis the President of PIC is obliged to issue a certificate to that effect: s 7.34(2).
It can be seen that, except for the limited type of case where liability is admitted and the claimant accepts the sum assessed by PIC, any claim for damages governed by the Act and which is not settled by the parties will fall to be determined under the statutory regime by an exercise of judicial power by a court.
Pursuant to s 318A(1) of the 1998 Act, a claimant "must refer a claim for work injury damages for mediation under this Division before the claimant can commence court proceedings for recovery of those work injury damages". A claim "is referred for mediation by being referred to the President for mediation by a mediator" (s 318A(5)), and that mediation is described as being "in the Commission" (s 318A(4)).
Thus, similarly to damages claims governed by the MAI Act, PIC has various roles to play in relation to damages claims governed by the workers compensation legislation, although it is for courts ultimately to determine the damages claim.
Despite this, on 12 November 2021 PIC dismissed the PIC application, albeit not on the basis that it made no sense within the context of the statutory scheme. It said that "[t]he application is a compensation claim" which was potentially a "federally impacted matter". It said that the application was dismissed under rule 77(b)(iv) of the Personal Injury Commission Rules 2021, which relates to where there is no jurisdiction to determine the dispute to which the application relates. In fact, the application did not identify any dispute or issue requiring determination.
Prior to PIC's decision, TAC had written back to Mr McGregor's solicitors on 19 October 2021 in the following terms:
"In relation to your letter dated 17 September 2021, we would be happy to negotiate without the need to file an application in the PIC or apply to the District Court for leave.
We note however the bar on settlement in s 6.23(1) before the 2 year mark, unless the Claimant exceeds 10% WPI. It is unclear to us whether he would go over or under the threshold. Accordingly, we suggest a [joint medical examination] with an orthopaedic surgeon at the end of 2021 or early 2022 when the travel restrictions have ended with a view to having discussions after the 2 year anniversary (if such delay is necessary)."
However, the next day the solicitors for Mr McGregor filed a statement of claim in the District Court. The relief claimed included "[l]eave to proceed with these proceedings in the District Court pursuant to Section 26(3)" of the PIC Act and "[d]amages". In the covering letter serving the statement of claim, Mr McGregor's solicitors stated that they had taken this approach to "preserve our client's priority and avoid a lengthy delay should settlement discussions not resolve the matter". The reference to preserving priority apparently meant getting a place in the queue in the District Court's list in Albury.
On 18 November 2021 the solicitors for TAC wrote to the solicitors of Mr McGregor as follows:
"The Statement of Claim has been filed without the leave of the Court pursuant to s 26 of the PIC Act, or (if federal jurisdiction were not engaged) a certificate as required by s 6.31 of [the MAI Act] …
There are a number of procedural requirements before a Claimant is entitled to make an application to the Commission to determine damages including:
- The Claimant must provide full particulars of the claim sufficient to enable the insurer to make an offer of settlement [s 6.25 …]
- The parties must use their best endeavours to settle the claim before referring it for assessment [s 7.32(3) …]"
On 24 November 2021 the solicitors for Mr McGregor wrote back to TAC, saying:
"In our view there is nothing in the legislation or the rules that mandates that a Summons for Leave must first be filed and leave obtained …
As there is a long wait period between filing in the District Court and obtaining a hearing date it is prejudicial to the Plaintiff to require all settlement negotiations to be completed prior to issuing proceedings."
On 25 November 2021 TAC's solicitors responded:
"The difficulty we have with the Statement of Claim is that proceedings have been commenced, without notice, without complying with any of the procedural steps set out in [the MAI Act] including the provision of particulars and an attempt by the parties to use their best endeavours to resolve the dispute. ...
The fact that a CTP matter is impacted by federal jurisdiction does not remove the need to comply with the procedural steps set out in [the MAI Act].
The matter only takes a different track if and when there is a necessity for a dispute to be determined by the Commission or the Court. This matter was nowhere near that point and proceedings should not have been commenced."
TAC, on behalf of Mr Searle, then filed a notice of motion in the District Court seeking that the statement of claim (and thus the proceedings) be dismissed. Mr McGregor filed a countervailing motion, which sought that the proceedings proceed by way of summons rather than statement of claim, that leave to proceed in the District Court be granted pursuant to s 26(3) of the PIC Act, and that the summons be adjourned indefinitely with liberty to restore on 28 days notice. By seeking these orders Mr McGregor in effect gave up any immediate pursuit of his damages claim which had been outlined in the statement of claim.
After a short hearing, Grant DCJ declined to dismiss the proceedings as sought by Mr Searle and instead made the orders sought by Mr McGregor.
At the date of the primary judgment no "Application for damages under common law" had been completed and sent to TAC as is required under s 6.15 of the MAI Act for damages claims (see further below). That was only done on 14 June 2022, shortly before the hearing of this appeal.
Federal jurisdiction is defined to mean "jurisdiction of a kind referred to in section 75 or 76 of the Commonwealth Constitution": s 25. The term "compensation claim" is defined in s 25 to mean claims for statutory benefits or damages under the MAI Act, a claim for damages under the Motor Accidents Compensation Act, or a claim for compensation or work injury damages under the 1998 Act.
If the District Court grants leave for the compensation matter application to be made to the Court rather than to PIC, that proceeding is then described as "substituted proceedings" in s 27 of the PIC Act, which relevantly provides as follows:
27 Proceedings after leave granted
(1) If the District Court grants leave for a compensation matter application to be made to it instead of the President or Commission -
(a) proceedings for the determination of the application (substituted proceedings) are taken to have been commenced in the Court on the day on which the application was first made, and
(b) the Court may make such orders (including in relation to the usual decision-maker) as it considers appropriate to facilitate its determination of the application. …
(3) The District Court has, and may exercise, all of the jurisdiction and functions in relation to the substituted proceedings that the usual decision-maker would have had if they could exercise federal jurisdiction, including jurisdiction and functions conferred or imposed by or under this Act, enabling legislation or any other legislation.
(4) Without limiting subsection (3), the District Court may -
(a) order that a medical assessment or merit review required by or under enabling legislation (or a review or appeal against the assessment or merit review) be carried out for the Court by a medical assessor, merit reviewer or panel specified by the Court, and
(b) make any other orders it thinks fit to facilitate the carrying out of the medical assessment, merit review or the review or appeal before the panel (including with respect to the issuing of certificates), and
(c) adopt (whether with or without variation), or refuse to adopt, the decision of the medical assessor, merit reviewer or panel as the Court sees fit.
(5) A decision adopted by the Court (whether with or without variation) has effect as a decision of the Court in respect of the matter concerned.
Sections 26 and 27 contemplate a two-step process. First, the claimant must seek the leave of the Court to make an application to the Court instead of to the President or Commission (but in circumstances where the application in question has already been made to the President or Commission). Section 26(3) grants the Court a discretion to grant that application for leave, subject to the Court being satisfied as to the three criteria set out in that provision. Secondly, if leave is granted, the Court will move to determine the application which is the subject of the leave in accordance with the terms of s 27.
The second criterion for granting leave, in s 26(3)(b), provides that the District Court may only grant leave for a compensation matter application to be determined by it if satisfied that "the determination of the matter by the usual decision-maker would involve an exercise of federal jurisdiction". As explained above, the issue will only involve an exercise of federal jurisdiction if resolution of the issue in question would involve an exercise of judicial power. It is possible that many (and conceivably all or nearly all) of the myriad decision-making roles played by decision-makers within PIC do not involve such an exercise. The second reading speech of the Minister, quoted above at [59], made clear that the purpose of Div 3.2 was only to enable the District Court to determine applications that PIC cannot determine because they involve the exercise of federal jurisdiction.
That leads to the question which is important for the purposes of this appeal: what is meant by the references in s 26 to an "application" that has first been made to PIC? The parties were in agreement that it meant an application to determine some particular dispute or issue that had arisen in the course of dealing with a claim, and it was not a generic reference to claims arising from a workplace or motor accident injury. That understanding is correct.
Neither under the MAI Act nor under the workers compensation scheme is there one simple application made to PIC to initiate a process to determine all issues arising from the injury founding the claim. There is no equivalent to the originating process filed in a court. Rather, PIC determines issues if needed as and when they arise between the parties. The parties may not need the assistance of PIC; they may need it only for a confined issue; or it may be that every step is disputatious, in which case there will be repeated applications. The statutory schemes carefully provide for the myriad types of issue that arise between the parties and how they are to be determined. There are different types of decision-makers or facilitators depending upon the nature of the issue.
In this statutory context, the reference in s 26(3)(a) to "an application" first being made to the President or Commission naturally refers to some application relating to a specific dispute or issue. That understanding is reinforced by s 26(3)(c): the reference there to "the usual decision-maker" refers to the type of decision-maker allocated by the statutory schemes for that particular type of dispute or issue, as confirmed by the definition in s 25:
usual decision-maker, in relation to determining a matter concerning a compensation claim, means the person or body (whether or not the President or Commission) on which the function is conferred or imposed by this Act or enabling legislation.
This understanding is supported by s 44 of the PIC Act, which provides that "[f]or the purposes of this Act, an application to the Commission includes a referral or other mechanism (however expressed) by means of which enabling legislation provides for a matter to be brought to the attention of the Commission for a decision". It is also supported by s 26(2), which authorises regulations "excluding or including applications as compensation matter applications". That power is best understood as referring to particular types of application under the statutory schemes.
The point is made clear by s 26(4)(a)(i), which requires that when the application for leave in the District Court is filed, the applicant must also file "an application that has been completed in the form and manner required under this Act or enabling legislation for the kind of compensation matter application concerned". The provision makes clear that the type of application is something of a specific kind, as addressed by the statutory schemes, and completed in compliance with them.
As regards s 26(4)(a)(i), senior counsel for Mr McGregor submitted as follows:
"The difficulty is that the District Court only recognises two forms of originating process, being a summons and a statement of claim. There is no mechanism to lodge an application with the District Court other than to apply through a summons or through a statement of claim to ask that it be done. So to that respect, the language is unhelpful in terms of directing you to something that's not well recognised within the available alternatives."
The argument is formalistic and unconvincing. For example, there is nothing to prevent an applicant filing a summons seeking the Court's leave under s 26(3) together with an affidavit to which the application in question is annexed.
It is the specific application which becomes the subject of the "substituted proceedings" identified in s 27. Thus, for example, the Court may exercise all the jurisdictions and functions of the usual decision-maker - ie for that type of application - pursuant to s 27(3).
A possible counter-argument to this construction was raised in the course of the hearing. The parties noted that s 27(4) authorises the District Court to order that certain matters be carried out for the Court by a medical assessor, merit reviewer or panel specified by the Court. It was said that that might be taken to suggest that a generic claim could be filed in the District Court then specific issues directed back to decision-makers in PIC. It is not necessary to consider the operation of this provision in any detail here. It suffices to note that it is understandable that Parliament sought to provide for a range of contingencies in responding to a newly recognised problem. The provision does not undermine the force of the points made above about the nature of the application being determined.
Lest it be thought that significance should be attributed to the word "matter" where s 26(1) refers to "a matter concerning a compensation claim to be determined by the usual decision-maker (a compensation matter application)", it is necessary to note something more of the statutory context. The word "matter" of course has constitutional significance. However, the word "matter" is used in the MAI Act to identify particular issues for determination, which fall into the categories of "merit review matters", "medical assessment matters" and "miscellaneous claims assessment matters": MAI Act, Sch 2. The word is also regularly used in the workers compensation scheme to identify particular issues. For example, s 250(1) of the 1998 Act provides that the term "existing claim matter means any matter arising under the Workers Compensation Acts in respect of an existing claim", where "existing claim" is defined to mean "a claim for compensation that is made before the commencement of this section" or a related claim. Thus the definition envisages that various matters may arise in respect of any particular claim. The language of s 26(1) itself echoes this approach: it talks of a matter concerning a compensation claim. The section does not refer to the whole compensation claim.
In Part 3A of the CAT Act, on which Div 3.2 of the PIC Act is based, there is no equivalent usage of the word "matter". That absence lends support to the view that the word "matter" in s 26 of the PIC Act has been used to reflect the language employed in the MAI Act and the workers compensation legislation, with which PIC deals, rather than to invoke some broader constitutional notion. Consistently with that understanding, the first of the stated objects of the PIC Act in s 3 is to "establish an independent Personal Injury Commission of New South Wales to deal with certain matters under the workers compensation legislation and motor accidents legislation and provide a central registry for that purpose" (emphasis added).
There are two difficulties with this argument. First, the argument assumes that each of these steps would involve the exercise of judicial power, such that PIC would not be able to perform its usual role in relation to the issues raised. As was made clear in the course of argument, that is not a premise I am prepared to accept without argument. The first and second examples involve medical assessments. Such assessments involve a doctor or medical panel reaching a conclusion based on their medical expertise. That conclusion appears then to be "the factum by reference to which the Act operates to alter the law in relation to the particular case": R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 378 per Kitto J; [1970] HCA 8. Such assessments are a common feature of these type of statutory schemes: see eg Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43. It suffices to say that the suggestion that they involve an exercise of judicial power is counter-intuitive.
The third example involves the President of PIC complying with the statutory duty in s 7.34(2) of the MAI Act to issue a certificate that the claim was exempt from assessment because it fell within one of the categories of mandatory exemption. It is far from apparent how the exercise of power involved in complying with that mandatory duty could be characterised as judicial.
Determination of these points would involve consideration of constitutional issues, which would have required notice being given to the Attorneys-General pursuant to s 78B of the Judiciary Act. The Registrar of this Court had raised with the parties the possible need to issue such notices, but neither side did so. In the course of argument the point was re-raised, but again neither party sought to do so. In those circumstances, Mr McGregor's argument cannot be accepted, presuming as it does something which is not established and open to doubt.
Secondly, and in any event, the argument does not recognise the significance of s 26 of the PIC Act being concerned with particular applications to determine particular issues or disputes. The argument appears to assume that all preconditions for making a damages claim must have been met before any s 26 application can be made. If a s 26 application needs to be made at all, then whether or not the application is premature will depend upon the nature of the application (see further at [97]-[98] below).
Senior counsel for Mr McGregor submitted that the letter sent by Mr McGregor's solicitor on 17 September 2021 sufficed to make some claim for damages which started the two month clock running pursuant to s 6.15(6). The relevant contents of the letter are reproduced at [46] above. The argument is unpersuasive. The high point of the letter was a statement that Mr McGregor "now wishes to make a common law damages claim pursuant to [the MAI Act]". The letter did not identify the nature of the claimed injuries, nor the heads of damage, nor the quantum sought. The letter was notifying TAC of his intention to make such an application; the letter did not say he was now making a common law damages claim. The apparent reason for the letter was to ask if TAC was prepared to discuss settlement without applications being made to PIC or the District Court.
Construing s 26 of the PIC Act as relating to specific applications, rather than effecting a generic transfer, is consistent with the process of dealing with motor accident and workers compensation claims in an orderly manner and consistently with the procedures carefully set out in the statutory schemes. If and when some Burns v Corbett hurdle comes up in the course of that process as regards the determination of any particular issue, then an application may be made to the District Court for determination of that issue under s 26.