Motor Accident Injuries (Lawyer Information Collection) Regulation 2021

ACAT application is defined narrowly in section 5(6) of the regulation as an application for external review of an ACAT reviewable decision. This refers to a review under Division 2.10.3 of the parent Act, where a claimant may challenge a decision of the MAI commission or an insurer regarding defined benefits. The regulation explicitly notes that an applicant may make more than one ACAT application in relation to the same motor accident, so the reporting obligation could arise multiple times for the same client if separate reviews are sought. A motor accident claim is defined by reference to the parent Act’s dictionary (section 228 of the Motor Accident Injuries Act 2019) and generally means a claim for damages in respect of personal injury or death arising from a motor accident, pursued in court rather than through the ACAT review process. The relevant period differs depending on the proceeding type. For an ACAT application, it runs from when the application was made until the ACAT made an order deciding or dismissing it. For a motor accident claim, it runs from when the notice of claim was given to the insurer until payment of an award or settlement, or in any other case, until the court gave judgment. If the lawyer stops representing the client before the end of the relevant period, the period truncates at the date the lawyer ceased representation. The reportable information is the core of the regulation, defined in section 5(6) as a list of financial items. It includes (a) an estimate of total costs and disbursements at the start, including party and party costs; (b) the amount of costs and disbursements for making the application or lodging the claim; (c) the amount billed to the client and payable by the client, subdivided into eleven specific categories such as repayment to the client’s private health insurer, advance payments, deductions from amounts ordered or awarded, client-to-solicitor fees, party and party costs, fees to previous lawyers, barrister fees, fees for medical or health professional appointments, fees for medical reports, fees to other experts, and any other fees (with examples including interpreter fees and travel costs); (d) the amount of costs for medical or health professional reports included or likely to be included in an application for costs; and (e) the distribution of funds ordered or awarded to the client. The term MAI commission refers to the statutory body established under the parent Act to oversee the scheme and collect data. Lawyer is defined by reference to the Legislation Act 2001 dictionary, which includes a person admitted to the legal profession in the ACT and holding a practising certificate. The regulation also references law practice as defined in the Legal Profession Act 2006 dictionary. The dictionary at the end of the regulation forms part of it and provides additional definitions. The regulation uses notes extensively, but section 4 states that notes are explanatory and not part of the regulation. The Criminal Code is mentioned in the note to the dictionary but has no operative role in the regulation’s obligations; it is simply a term defined in the Legislation Act.

The primary affectees are lawyers practising in the ACT who represent clients in motor accident matters falling within the scope of the regulation. This includes both solicitors and barristers, as the dictionary defines “lawyer” broadly, and the regulation itself refers to barrister fees as a category of reportable information, implying that barristers may be engaged by the principal lawyer and their fees must be reported. However, the obligation to report lies with the lawyer who represented the client; that lawyer must collect data about fees paid to other lawyers (including previous lawyers and barristers) and report them. Law practices are also affected indirectly because the lawyer is likely an employee or partner of a practice, and the practice may need to develop internal systems to capture the required data. The MAI commission is the recipient of the information and must maintain the portal or other mechanism for lodgment and likely analyse the data. Insurers are not directly named in the regulation, but the data on costs and disbursements may be relevant to the commission’s oversight of insurer behaviour and scheme costs. Clients (claimants) are indirectly affected because their lawyers must obtain details about the distribution of funds and deductions, which may require the client to provide information or consent. The regulation may also affect the ACAT and courts, because the relevant period ends with an ACAT order or court judgment, so the timing of reporting depends on those bodies’ processes. The regulation does not impose obligations on unrepresented litigants; it only applies to lawyers. The class of lawyers affected is potentially large, encompassing any lawyer who takes on a motor accident claim or ACAT review in the ACT, whether in a plaintiff firm, a defendant firm (if representing an insurer or third party in a claim? Wait: the regulation says “a lawyer who represented a client in an ACAT application or a motor accident claim”. The term “client” is not defined but likely includes both claimants and other parties such as respondents, because the definition of “motor accident claim” in the parent Act may include claims by an injured person and also possibly compulsory third party claims; however, the context of “motor accident claim” in s 228 of the parent Act is a claim for damages in respect of personal injury or death, so it is likely only the plaintiff’s lawyer who has a client in that sense. But the regulation does not exclude defence lawyers explicitly. The dictionary defines “claimant” in the parent Act, but here “client” could be broader. In practice, defence lawyers rarely have a “client” who is the injured person; they represent insurers. The regulation may be interpreted as applying only to lawyers who represent the person making the claim (the claimant). The safer reading: the regulation applies to any lawyer who represents a client, but the nature of the proceedings suggests it is the claimant’s lawyer. The MAI commission would likely only be interested in costs incurred by claimants. The regulation also affects professional disciplinary bodies (the ACT Law Society and the ACT Civil and Administrative Tribunal’s professional discipline list) because non-compliance can lead to disciplinary proceedings. The regulation does not affect clients directly as duty bearers, but clients may need to be informed that their lawyer must report certain information, and clients’ privacy interests in the distribution of funds may be disclosed to the commission.

The central duty is imposed by section 5(3): a lawyer who falls within the provision must give the MAI commission reportable information about the ACAT application or claim. This is a mandatory obligation: there is no discretion to withhold the information. The duty arises when the lawyer represented the client for all or part of the relevant period. If the lawyer represented the client only for a portion, the duty still applies for that portion. The reportable information must include estimates made at the start of the application or claim, even if the lawyer took over the matter mid-stream; the start refers to the commencement of the application or claim, not when the lawyer began representing the client. That is a subtle point: the estimate is to be “an estimate of the total amount of costs and disbursements at the start of the application or claim”. If a lawyer takes over after the start, they may not have been involved in making that estimate, but they must still report it. The lawyer must obtain that estimate from the client or prior lawyer. The duty to report is time bound: within 28 days after the end of the relevant period, or if the lawyer stopped representing the client before the end, 28 days after stopping. The method of giving the information is “in the way stated on the MAI commission’s website”. This gives the commission flexibility to adopt electronic lodgment. The regulation does not specify whether the information must be verified by statutory declaration, but the absence of such requirement suggests no formal verification is needed, though accuracy would be expected given professional obligations. The lawyer also has a duty to ensure completeness: the list of reportable information is exhaustive and includes “any other fees paid” as a catch-all, so the lawyer must consider all fees paid by or on behalf of the client. The regulation does not confer any right on the lawyer to withhold information based on legal professional privilege or confidentiality. The source does not mention privilege, so we cannot assume it applies. However, the distribution of funds may include amounts paid to third parties, which may be subject to privacy obligations. The regulation likely overrides such obligations for the purpose of reporting, but that is not explicit. The lawyer’s main right is to know the method of compliance from the commission’s website. The lawyer also has a right to be aware that failure to comply can be professional misconduct or unsatisfactory professional conduct, which carries procedural protections under the Legal Profession Act 2006. The client does not appear to have any right under this regulation to object to the lawyer reporting information; the duty is on the lawyer and is presumably considered a matter of public interest. The MAI commission has the right to receive the information and likely the right to use it for scheme management and policy development, though the regulation does not specify permissible uses. There is no right to a fee or reimbursement for providing the information; the lawyer bears the compliance cost.

Section 5(5) states that failure to comply with the reporting duty by a lawyer can be professional misconduct or unsatisfactory professional conduct under the Legal Profession Act 2006, chapter 4 (Complaints and discipline). This is a notable enforcement mechanism: instead of a criminal penalty or civil pecuniary penalty (which would be a number of penalty units, currently $160 per unit for individuals and $810 for corporations), the regulation relies on the existing professional discipline framework. This means that a complaint about non-compliance would be handled by the ACT Law Society or the Legal Services Commissioner, and ultimately by the ACT Civil and Administrative Tribunal (ACAT) in its professional discipline jurisdiction. The consequences of a finding of professional misconduct could include:

• Reprimand
• Fine (up to the maximum that applies under the Legal Profession Act, which is currently $25,000 for an individual and $50,000 for a law practice for misconduct, though these figures are from the Legal Profession Act and not specified in the regulation)
• Orders for compensation
• Suspension of practising certificate
• Cancellation of practising certificate

The regulation does not prescribe any monetary penalty directly. The use of professional misconduct is a serious measure because a finding of professional misconduct can have career ending consequences. However, the standard of proof is the civil standard on the balance of probabilities (as per general disciplinary law). The regulation does not specify a separate offence for non-compliance, so there is no strict liability offence. The disciplinary jurisdiction requires a finding that the conduct amounts to unsatisfactory professional conduct or professional misconduct. Unsatisfactory professional conduct is conduct that falls short of the standard expected of a competent lawyer, while professional misconduct is more serious and may include substantial or consistent failure to meet standards. The regulation does not clarify which category a breach of the reporting duty would fall into; it merely says that failure can be either, depending on the circumstances. A single failure might be considered unsatisfactory professional conduct, while a pattern of deliberate non-compliance could be professional misconduct. The burden of proof is on the complainant (usually the MAI commission or a party). The regulation does not create an automatic reporting obligation to the disciplinary body; rather, the commission must refer the matter, or a client might complain if the lawyer fails to report and that affects the client. There is no public register of reporting compliance. Enforcement is reactive. The lack of a direct financial penalty may reduce the deterrent effect for lawyers who believe the risk of discipline is low. However, most lawyers take professional conduct obligations seriously. The regulation does not provide for any defence of reasonable excuse, which means that if the lawyer fails to report for any reason, the conduct may still be considered unsatisfactory professional conduct, though the disciplinary body will consider the circumstances. The MAI commission could also potentially seek an order for specific performance through the ACAT? The regulation does not provide for that; it only mentions the disciplinary outcome.

The regulation is made under the Motor Accident Injuries Act 2019 (the parent Act), specifically section 469, which empowers the Minister to prescribe information to be given to the MAI commission. The parent Act establishes the MAI commission and the scheme for motor accident injuries, including defined benefits for injured persons and the right to claim damages. The regulation supplements the parent Act by detailing what lawyers must report. The regulation does not supersede or modify any provisions of the parent Act; it merely exercises a delegated power. The regulation also interacts with the Legal Profession Act 2006 (ACT). As noted, non-compliance is deemed to be professional misconduct or unsatisfactory professional conduct under that Act. This means that the procedures, rights of appeal, and penalties under Chapter 4 of the Legal Profession Act apply. That chapter sets out the complaints and discipline framework, including the role of the Legal Services Commissioner, the ACAT’s disciplinary jurisdiction, and the orders that can be made. The regulation effectively creates a new statutory obligation that is enforceable through that existing framework. The regulation does not contain a provision that overrides legal professional privilege. However, the reportable information includes items such as the distribution of funds and fees paid to experts, which may be subject to privilege in some circumstances. The regulation does not explicitly require the lawyer to waive privilege; rather, the information likely relates to the lawyer’s own records of costs and disbursements, which are not typically privileged. The Act may interact with the Legal Profession Regulation 2007 regarding cost disclosure rules, but that is not referenced. The regulation also interacts with the ACAT Act 2008 and the Court Procedures Rules 2006 regarding the timing of proceedings, because the relevant period ends with an ACAT order or court judgment. The regulation does not affect the substantive rights of claimants or insurers under the parent Act. It is purely a data collection measure. The regulation may also interact with the Privacy Act 1988 (Cth) or the ACT Information Privacy Act 2014, because the lawyer must disclose personal financial information about the client to the MAI commission. The regulation does not address privacy, but the MAI commission would have obligations under the parent Act and privacy laws to handle the information appropriately. The regulation does not provide an exemption from privacy obligations; however, the disclosure may be authorised by law. There is no interaction with the Commonwealth scheme because the ACT scheme is separate. The regulation does not mention the Australian Taxation Office, but the reportable information may include amounts that are subject to tax obligations (e.g., health insurer repayments). No direct interaction is stated.

According to the endnotes, the Motor Accident Injuries (Lawyer Information Collection) Regulation 2021 is SL2021-23. It was notified on the ACT legislation register on 19 October 2021. Sections 1 (Name of regulation) and 2 (Commencement) commenced on that date, being 19 October 2021, by operation of section 75(1) of the Legislation Act 2001. The remainder of the regulation (essentially all operative provisions, section 5 and the dictionary) commenced on 3 December 2021, as specified in section 2 of the regulation. The republication status indicates that this is Republication No 1, effective 3 December 2021, and the regulation has not been amended since its commencement. The amendment history endnote shows only one entry: section 2 (Commencement) was omitted by the Legislation Act 2001, section 89(4), which is a standard provision that omits the commencement section once a law has commenced. So the only formal change is the removal of the commencement section from the republished version. There are no substantive amendments. The regulation has remained in its original form since it came into force. The legislation history also notes that the regulation was not amended, consistent with the endnote “Regulation not amended” on the cover. The speed of republication suggests that the regulation was republished shortly after commencement (R1 dated 3 December 2021), meaning it was consolidated quickly. There are no uncommenced provisions or modifications. The law is stable and has not been the subject of any amending instruments. The absence of amendments may indicate either that the regulation is working adequately or that it is too new (only a few years old) to have been revisited. Given the limited scope, it may not require changes.

The source material (the regulation itself and its endnotes) does not mention any litigation history. There is no indication that the regulation has been challenged in court or interpreted in any reported decision. The regulation is a subordinate instrument that delegates reporting obligations; such instruments are less commonly the subject of direct judicial review than primary legislation. However, the absence of litigation may also be a function of the regulation’s narrow scope and clear language. The most likely context for litigation would be in professional disciplinary proceedings where a lawyer challenges a finding that their failure to report amounted to professional misconduct. Those proceedings would typically be before the ACT Civil and Administrative Tribunal, and appeals to the Supreme Court are possible. As of the republication date (December 2021), no such proceedings appear to have resulted in reported decisions. It is also possible that the MAI commission might seek judicial review of a refusal to provide information, but that has not occurred. Because the regulation creates no cause of action for clients, it is unlikely to be litigated by claimants. The only potential litigation would be between the lawyer and the disciplinary body. The regulation is yet to be tested in any appellate court. Legal practitioners are advised to treat the regulation as enforceable and to comply fully until any uncertainties are resolved by a tribunal. The commentary on the regulation in legal practice would note the lack of case law, meaning the exact scope of “any other fees” or the interpretation of “stop representing the client” remains to be authoritatively determined.

Several pragmatic traps exist for lawyers subject to this regulation. First, the 28-day deadline runs from the end of the relevant period, which is defined differently for ACAT applications and motor accident claims. For a claim that settles at mediation, the relevant period ends when payment is made. If there is a delay between settlement and payment, the deadline does not start until payment is actually made. Lawyers must track payment dates precisely. Second, if the lawyer stops representing the client mid-stream (e.g., the client changes lawyers), the reporting obligation arises within 28 days of ceasing representation, even if the matter is not finalised. This means the lawyer must gather and report information about costs incurred up to that point, including the estimate from the start. The lawyer may not have the final distribution of funds if the matter is ongoing, but the regulation requires reporting of the amount of costs billed during the period of representation and distribution of funds ordered or awarded to the client only if those have occurred. For a mid-stream cessation, there may not be an order or award yet, so the lawyer reports what they have. Third, the estimate at the start of the application or claim may be difficult to obtain if the lawyer took over after the start. The regulation does not excuse the lawyer from reporting that estimate. The lawyer must obtain it from the client or prior lawyer, which may involve requests and potential privacy concerns. Fourth, the requirement to report “any other fees paid” is a catch-all that could include administrative charges, courier fees, filing fees, etc. Overlooking small fees could constitute incomplete reporting. Fifth, the distribution of funds ordered to be paid or awarded to the client includes amounts disbursed to third parties (health insurers, medical providers). The lawyer must report the breakdown of how the settlement or judgment funds were distributed, including deductions. This may require the lawyer to track payments made from the trust account carefully. Sixth, the regulation does not specify whether the report must be signed or verified. However, providing false or misleading information could attract criminal liability under the Criminal Code (ACT) for providing false information to a public official. Seventh, the regulation applies even if the lawyer only represented the client for a single day. The definition of “represented” is not qualified by duration. A lawyer who appears at one hearing must still report. Eighth, the English of “reportable information” includes “an estimate of the total amount of costs and disbursements at the start of the application or claim”. The phrase “at the start” may create ambiguity about when the estimate was actually made. It likely means the estimate that was prepared at the outset, not a current estimate. But if no written estimate exists, the lawyer may need to reconstruct it. Ninth, the obligation to report is not dependent on the client’s request or consent. Lawyers must report even if the client objects, though the client may not be aware of the reporting. Tenth, the regulation does not provide for any fee or reimbursement for compliance. The compliance cost (time, systems, storage) falls entirely on the lawyer or law practice. Small firms may face disproportionate burden relative to large firms. Finally, the consequence of non-compliance is professional misconduct, which is a serious matter that can affect a lawyer’s career permanently.

To comply with this regulation, a lawyer or law practice should implement a systematic process covering every motor accident claim or ACAT application they handle. The following steps are recommended based on the regulation’s requirements:

1. Identify all relevant matters. For every new matter that involves an ACAT application (external review) or a motor accident claim (damages claim arising from a motor accident), determine if the lawyer will represent the client. If so, flag the matter for reporting compliance.

2. At the commencement of the application or claim, record the initial estimate of total costs and disbursements, including party and party costs. This estimate should be documented in the file, preferably in writing, and updated as necessary. If the lawyer takes over a matter after commencement, obtain from the client or the previous lawyer the initial estimate given to the client at the start of the matter. If that estimate is not obtainable, the lawyer must still attempt to reconstruct it based on available information.

3. Track all costs and disbursements throughout the matter. The regulation requires a breakdown of:

   • Costs and disbursements for making the application or lodging the claim.
   • Amounts billed to the client and payable by the client, including all specified subcategories (repayment to health insurer, advance payments, deductions from amounts ordered/awarded, client-to-solicitor fees, party and party costs, fees to previous lawyers, barrister fees, fees for medical appointments, fees for medical reports, fees to other experts, any other fees).
   • Fees for medical or health professional reports that are or will be included in an application for costs.
   • The distribution of funds ordered or awarded to the client.

   This requires rigorous time recording, cost ledger management, and coordination with any barristers or experts engaged. Use practice management software that can generate detailed cost summaries.

4. Monitor the relevant period. For ACAT applications, the period ends when ACAT makes an order deciding or dismissing the application. For motor accident claims, it ends when payment for an award or settlement is made, or if no payment, when the court gives judgment. If the lawyer ceases representation before the period ends, the relevant period ends at the date of cessation. Keep a diary of key dates to ensure the 28-day countdown is tracked.

5. Within 28 days after the relevant period ends (or after cessation of representation, if earlier), compile the required reportable information. The regulation does not prescribe a specific form, but the information must be given “in the way stated on the MAI commission’s website”. Therefore, regularly check the MAI commission website for electronic lodgment instructions. It may be a web portal with fields to enter the data.

6. Submit the report electronically via the portal. Retain a copy of the submission and any confirmation receipt as evidence of compliance. If the commission provides a PDF template or online form, complete it accurately.

7. If there are multiple ACAT applications or claims for the same client, each application or claim must be reported separately. The regulation note states that an applicant may make more than one ACAT application. Each will have its own relevant period and report.

8. Cease representation protocol. If the lawyer stops representing the client mid-way (e.g., withdrawal or client changing lawyer), promptly gather all cost information up to the date of cessation and report within 28 days. The regulation does not require waiting for the final distribution of funds because that may not yet have occurred. Report only the costs and disbursements billed to that point, and any distribution that has occurred (if any).

9. Review compliance with professional obligations. Ensure that the reporting process does not conflict with the lawyer’s duties to the client, such as confidentiality. However, the regulation likely authorises the disclosure. If the client objects, the lawyer should explain the legal obligation. In extreme cases, seek advice from the law society.

10. Risk management. Implement staff training on the regulation. Designate a responsible person (e.g., compliance officer) to monitor that all reports are filed on time. Use a centralised log with deadlines. Non-compliance can lead to professional discipline, so treat this as a non-optional task.

11. Monitor for changes. The regulation is currently unamended, but the MAI commission may update the lodgment portal or requirements. Check the website periodically.

12. Recordkeeping. The regulation does not specify a retention period for the underlying data, but for professional conduct purposes, keep the records for at least the limitation period for disciplinary action (up to 5 years or more). The MAI commission may also request verification.

By following these steps systematically, a lawyer can fulfil the reporting duty and avoid the serious consequence of a professional misconduct finding. The cost of compliance may be significant for high-volume practices, but it is an unavoidable cost of practice in the ACT motor accident space.