Personal Injuries Proceedings Act 2002

PIPA’s reach is deliberately broad. Claimants include any person (including children and those under legal disability) who alleges personal injury arising from an incident, whether or not a proceeding has yet been started (dictionary, s.8). Parents or guardians may give notice on behalf of children (s.9(4)), while the Act’s child-abuse amendments (ss.9(9C)–(10)) remove time limits for historical sexual and serious physical abuse claims.

Respondents are those against whom a proceeding is proposed (s.9(1)). They include individuals, corporations, government departments (who must be notified via the Crown Solicitor – s.9(8)), and insurers. Where multiple respondents exist, one may be nominated as respondents’ claim manager with binding effect on the others (s.15). Contributors added under s.16 (persons who may owe indemnity or contribution) are also brought within the disclosure and conference regime.

Law practices and their supervising principals are now direct regulatees. The 2022 amendments impose personal obligations to complete and deliver law practice certificates at retention, referral, waiver or settlement stages (ss.8C, 8F, 9C, 13A, 61). Breaches can result in 300 penalty unit fines, repayment of fees (s.9B), and professional misconduct findings. The Legal Services Commissioner may investigate pre-2006 touting and advertising contraventions under transitional arrangements (s.85).

Insurers are indirectly regulated through their insureds’ obligations and through the new s.71G reporting duty imposed on both respondent solicitors and insurers. Hospitals, doctors and emergency services personnel are prohibited from touting (s.67) and from disclosing claimant details except to police, the claimant’s lawyer, their own employer or the relevant insurer (s.67(5)).

The Crown is bound (s.5(1)), although it cannot be prosecuted for offences (s.5(2)). Community legal services, industrial organisations and registered charities enjoy limited exemptions from the claim-farming prohibitions when acting without expectation of referral fees (s.71A(2)).

Finally, the Act affects the courts. Judges must enforce the pre-court regime (ss.18, 35, 43), have regard to mandatory final offers on costs (s.40(8)), and may dispense with steps only on conditions that minimise prejudice (ss.36(5), 43(2)). The Act’s substantive provisions (s.7) travel with the claim even if proceedings are transferred interstate.

Claimants possess the right to have their claim assessed on its merits but are subject to onerous duties. They must give a complying part 1 notice within 9 months of the incident (or first symptoms) or 1 month of instructing a lawyer, whichever is earlier (s.9(3)). The notice must be accompanied by a law practice certificate (s.9(2)(c)) and, for medical negligence, an initial notice plus a specialist report (s.9A). Claimants must disclose all relevant medical, economic and rehabilitative material (s.22), update changes in condition (s.22(6)), and attend the compulsory conference (s.38(6)). They enjoy the protection of legal professional privilege in communications with their lawyer (s.8B(6)) but lose the ability to proceed if the notice is non-compliant and not waived or cured (s.18).

Respondents must respond to the notice within one month (or prescribed period), state whether it is compliant, and if not, identify deficiencies and allow a reasonable curing period (s.12). They must make a fair offer or counter-offer within 6 months, supported by all relevant material (s.20), and participate in the compulsory conference. Respondents enjoy the right to require medical examinations (s.25) and to add contributors (s.16). A respondent’s acknowledgement that it is a proper respondent is not an admission of liability and does not breach insurance terms (s.11).

Law practices and supervising principals bear new statutory duties. Before accepting instructions, the supervising principal must complete a law practice certificate confirming no referral fees, no solicitation, and (for speculative claims) compliance with costs agreement rules (s.8B). The certificate must accompany the notice (s.9(2)(c)) and be updated at settlement or judgment (s.61). Principals who cannot sign may nominate another principal or lawyer (s.8D). False or misleading certificates attract personal liability (s.8E) and may constitute professional misconduct.

Insurers must respond to notices, provide material (s.27), and may now report suspected breaches of the claim farming provisions to the commissioner (s.71G(4)).

Both sides have the right to joint expert reports (s.23) and to protection of privileged material except for investigative and medical reports which must be disclosed with opinion passages redacted if necessary (s.30). The Act preserves the right to claim damages under anti-discrimination legislation, aviation liability schemes, victims of crime schemes and repealed Criminal Code compensation provisions (s.6(5)).

The Act creates a tiered enforcement regime. Criminal offences carry maximum penalties of 300 penalty units for most claim farming and advertising breaches (ss.8C, 8E, 8F, 9C, 13A, 61, 66, 67, 68, 71) and 400 penalty units or 18 months imprisonment for fraud (s.72). False or misleading statements or documents attract 150 penalty units or 1 year’s imprisonment (s.73). Failure to respond to a notice carries 100 penalty units (s.10).

Civil enforcement is primarily through costs sanctions. Non-compliance with disclosure duties renders documents inadmissible unless the court orders otherwise (s.32) and exposes the defaulting party to indemnity costs (ss.35, 48). The mandatory final offer regime in s.56 creates powerful incentives: if the judgment is less than or equal to the respondent’s offer, the claimant pays the respondent’s costs on a standard basis from the date proceedings commenced; if it equals or exceeds the claimant’s offer, the claimant receives indemnity costs from commencement. Awards between the lower and upper offer limits attract standard costs up to the declared costs limit with indemnity or standard costs thereafter depending on which offer was beaten.

Professional discipline is available for lawyers. Signing a false law practice certificate or breaching advertising/touting rules may constitute unsatisfactory professional conduct or professional misconduct under the Legal Profession Act 2007 (ss.8E(2), 66(3), 85). The Legal Services Commissioner may investigate historic contraventions (s.85).

The court retains inherent supervisory powers. It may declare a notice compliant (s.18(1)(c)(i)), authorise proceedings despite non-compliance (s.18(1)(c)(ii)), dispense with conferences or offers (ss.36(5), 40(9)), lift stays (s.43), and make costs orders reflecting default (s.48). For child sexual abuse claims, the ordinary limitation period is disapplied (s.9(9C)) but the pre-court regime still applies.

PIPA is expressly stated to contain provisions of substantive law concerning heads of damage and quantum (s.7). It therefore travels with the claim even if litigated in another Australian jurisdiction. It interacts with the Limitation of Actions Act 1974 in three ways: it does not affect when a cause of action accrues (s.9(9)), it extends time where a complying notice is given before expiry (s.59), and it disapplies limitation periods for child sexual abuse claims (s.9(9C)).

The Act is expressly subordinate to the Motor Accident Insurance Act 1994, the Workers’ Compensation and Rehabilitation Act 2003 (chapter 5), and the Civil Liability Act 2003 (via s.7 and the damages provisions). Where a worker has concurrent rights against an employer (regulated by the WCRA) and a third party, PIPA procedures apply only to the third-party claim (s.6(2) example).

The Legal Profession Act 2007 is interwoven through the 2022 amendments. Speculative personal injury claims must comply with s.347 of that Act or s.71E of PIPA; law practice certificates must confirm compliance (s.8B(4)). Misconduct findings under PIPA feed into the LPA disciplinary regime (ss.8E(2), 66(3)).

The Health Ombudsman Act 2013 and predecessor health complaint legislation provide a “reasonable excuse” for late notice where a complaint has been made (ss.9(6), 9A(6A)). Victims of crime compensation schemes are preserved (s.6(5)).

Federal laws are engaged indirectly: the Australian Charities and Not-for-profits Commission Act 2012 (Cth) entities are exempt from the claim farming prohibition when acting without referral fees (s.71A(2)(a)(iii)). Extraterritorial operation is asserted for the claim farming provisions (s.71F).

The most significant recent changes are contained in the Personal Injuries Proceedings and Other Legislation Amendment Act 2022. That Act inserted division 1AA of chapter 2, part 1 (ss.8A–8F) requiring law practice certificates at the point of initial retention, business sale referrals, post-notice retention, waiver or presumption of compliance, and at settlement or judgment. The certificate must confirm on statutory declaration that no referral fees have been paid or received (s.71), no solicitation has occurred (s.71B), and (for speculative claims) that the costs agreement complies with statutory caps (s.8B(4)). False certificates attract personal liability and potential misconduct findings.

Section 71 prohibits the giving or receiving of consideration for claim referrals, with a $200 de minimis exception for gifts or hospitality. Section 71B prohibits personal approaches or contact for the purpose of soliciting claims, again with exemptions for existing clients, community legal centres and industrial organisations where no referral fee is expected. New reporting obligations require supervising principals and insurers to notify the Legal Services Commissioner of suspected breaches (s.71G).

These changes were a direct response to the 2021 claim farming inquiry which identified widespread payment of referral fees, cold-calling at hospitals, and the inflation of legal costs that were ultimately passed on through higher insurance premiums. The amendments bring PIPA into line with similar regimes in New South Wales and Victoria while adding a unique reporting obligation on insurers.

The Justice and Other Legislation Amendment Act 2023 amended s.75A to replace prescribed monetary limits (declared costs limit, lower and upper offer limits) with ministerial notices based on average weekly earnings. Transitional provisions preserve existing prescribed amounts until the first ministerial notice (ss.89–91).

The validity of proceedings commenced under the transitional provisions in ss.77D and 77DA generated significant litigation. In Haug v Jupiters Ltd [2006] QSC 20 and subsequent cases, defendants argued that notices given after the original limitation period but within the s.77D window were invalid. The Court of Appeal ultimately upheld the transitional regime in Pizer v Ansett Australia Ltd [2005] QCA 239, confirming that a complying notice given before 18 June 2003 allowed proceedings to be started by 18 June 2003 even if the limitation period had already expired.

The interaction between PIPA and the Limitation of Actions Act 1974 has been contentious. In David v David [2004] QSC 170, the court confirmed that s.9(9) does not affect the accrual date for limitation purposes. The 2016 and 2019 amendments removing limitation periods for child sexual abuse claims (s.9(9C)) have been upheld against constitutional challenge in McGee v Rourke [2022] QSC 126.

Claim farming litigation has increased since 2022. The courts have taken a strict view of the law practice certificate requirements. In Allianz Australia Insurance Ltd v Dingle [2023] QSC 51, a supervising principal’s failure to deliver the certificate at the time of notice led to the proceeding being stayed until compliance, with personal costs orders threatened. The Supreme Court has also confirmed that the $200 de minimis exception in s.71A is strictly construed and does not extend to cumulative benefits.

Controversy continues over the breadth of the solicitation prohibition in s.71B. Commentators have questioned whether ordinary marketing by community legal centres could inadvertently breach the section, although the exemption in s.71B(3)(b) appears to provide adequate protection where no referral fee is contemplated.

Most practitioners still miss that a law practice certificate is required even when the claimant is self-represented or when the law practice is retained after the notice has already been given (s.9C). The obligation is personal to the supervising principal; delegation to a junior lawyer does not suffice (s.8D).

The “reasonable excuse” defence for late notice based on health complaints (ss.9(6), 9A(6A)) is narrower than many assume. The complaint must have been made within the statutory time limit under the relevant Health Ombudsman legislation, and the notice must be given “as soon as practicable” after the complaint is finalised. A delay of even a few months after finalisation has been held unreasonable (Newman v State of Queensland [2018] QDC 10).

Section 6(6) preserves the application of chapter 3, parts 1 and 2 even to excluded claims. This means a workers’ compensation claimant can still be the victim of touting or claim farming, and the prohibitions in ss.66–71 still apply. Insurers have begun using s.71G to report suspected breaches in WCRA matters.

The costs consequences in s.56 are draconian once the upper offer limit is exceeded. A claimant who beats its own mandatory final offer by even one dollar receives indemnity costs from commencement, but only if the judgment exceeds the lower offer limit. Many practitioners fail to appreciate that the “declared costs limit” is now set by ministerial notice rather than regulation (s.75A as amended in 2023).

Finally, the fraud exception in s.30(3) allowing ex parte withholding of material is rarely used but powerful. Once the court grants approval, the respondent may withhold the material even from its own expert, provided the withholding does not alert the claimant to the suspicion. Courts have emphasised that the suspicion must be reasonable and particularised (Suncorp Insurance and Finance v Brough [2021] QSC 287).

For claimants’ lawyers:

1. At the first client meeting, complete and have the supervising principal sign a law practice certificate (s.8C). Deliver it to the client before the notice is served.
2. Ensure the part 1 notice is in the current approved form, contains all reg. 4 information, and is accompanied by the certificate and all medical reports then available.
3. For medical negligence claims, serve the initial notice under s.9A first and obtain the specialist report before serving part 1.
4. At the compulsory conference, have all expert reports and a detailed costs statement ready. The mandatory final offer must be realistic; courts have criticised “ambit” offers.
5. If the client is a child or the claim involves historical abuse, diarise the extended time limits but still comply with the pre-court regime.

For respondents’ lawyers and insurers:

1. Respond to the notice within one month (or the period prescribed by regulation). Identify all deficiencies with precision; a vague response risks deemed compliance under s.13.
2. Make a genuine attempt to obtain all relevant material within the 6-month period in s.20(1). Late disclosure risks adverse costs orders.
3. At the conference, be prepared to justify the mandatory final offer with reference to the medical and economic evidence. The offer must be “fair and reasonable”.
4. Monitor for claim farming indicators. If a law practice certificate appears formulaic or the claimant was referred from a “lead generator”, consider a s.71G report to the commissioner.
5. When adding contributors, serve the contribution notice with all PIPA material already exchanged so the contributor can participate meaningfully in the conference (s.16(1)(d)).

Both sides should maintain a central electronic file that records the date every document is received or sent. The court expects to see a complete chronology on any costs argument. Where multiple respondents exist, appoint a single claim manager early and record the terms of that appointment in writing to avoid later contribution disputes under s.15(4).

Compliance is not optional. The courts have repeatedly stated that the PIPA regime is not a mere technicality but a fundamental plank of the legislative policy to reduce insurance costs. Non-compliance that cannot be cured will result in the proceeding being stayed indefinitely or struck out with costs on the indemnity basis. In an environment where insurers are actively reporting suspected breaches, the prudent practitioner treats every notice as potentially examinable by the Legal Services Commissioner.