(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 (Rules) applies to the application, and is in the following terms:

"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 applies to the application. As recorded earlier, I have dispensed with the requirement for an application for exemption and reply to be filed.
2. In determining whether the claim is not suitable for assessment the objects of the PIC Act must be considered. Those objects include, relevantly, to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible.
3. The guiding principle for the PIC Act and the Rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings. The Commission must seek to give effect to the guiding principle when it exercises any power given to it by the PIC Act or the Rules or interprets any provision of the MAI Act or the Rules: s 42(2) PIC Act.

1. The parties have lodged joint written submissions dated 26 May 2025 in support of their application for exemption. The submissions record that:

(a) the parties submit the matter is not suitable for assessment as it involves an issue of jurisdiction which should be determined by the District Court, and

(b) in the alternative, the parties seek a discretionary exemption from claims assessment, pursuant to r 99(3)(a) and (b) of the Commission Rules 2021 as the claim involves complex legal and factual issues and issues of liability.

1. The parties submit that in order to conduct an assessment of damages, the Commission must first conduct an exercise of statutory interpretation to determine the applicable Act.
2. The insurer submits that, following the judgment in Chang, the claimant has no entitlement to damages and accordingly, the Commission proceedings ought to be withdrawn and/or dismissed. As the bus involved in the accident was owned by Ingleburn Bus Services Pty Ltd, a private company, the insurer argues that in light of Griffiths AJA's comments at [73] in Chang, the claimant was not involved in a public transport accident in accordance with s 121 of the Transport Administration Act 1988.
3. Against this, the claimant submits the claim is governed by the MAC Act.
4. The parties refer to the reasons in Chang at [71] - [74], and submit the issues raised in the claim render it unsuitable for assessment in the Commission as it involves an issue of jurisdiction, complex legal and factual issues, and issues of statutory interpretation.
5. Further, the parties state that as any determination made by the Commission does not create binding precedent, the dispute "should be ventilated" in the District Court.

1. Whether the claim is governed by the MAI Act or the MAC Act will have a significant impact on the claimant's entitlements. If the former his potential entitlements will be limited to non-economic loss. As it stands, he would not be entitled to those damages, the permanent impairment as a result of his accident caused injuries having been certified as not being greater than 10%.[1] If, however, his claim is governed by the MAC Act the claimant may be entitled to heads of damages not available under the MAI Act.
2. Given the view I have formed with respect to whether the claim is not suitable for assessment, I do not propose to address the "issue of jurisdiction" raised by the parties.
3. The reasons given by each of Bell CJ, Basten AJA, and Griffiths AJA in Chang make it clear that the question of whether the claim is governed by the MAI Act or the MAC Act is complex. There is real doubt as to whether Chang has resolved the position with respect to a bus that is not operated by the STA: Chang at [73].
4. At [74] Griffiths AJA referred to "the tangled web of legislation which is potentially relevant in determining the rights and liabilities of injured persons and CTP insurers respectively concerning public transport accidents."
5. The legal complexity involved in determining which Act applies to this claim is such that I am satisfied the claim is not suitable for assessment under Div 7.6 of the MAI Act.
6. Further, requiring the parties to undertake the work and incur the cost associated with the claim being assessed by the Commission would not facilitate the just, quick and cost effective resolution of the real issues in the proceedings.
7. Having made a preliminary assessment of the claim I determine that the claim is not suitable for assessment by the Commission under Div 7.6 of the MAI Act. I recommend to the President that the claim be exempt from assessment.
8. 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 23 June 2025, approved Member Brett Williams' recommendation that the claim is not suitable for assessment.

[1] Medical Review Panel certificate dated 2 July 2024.