Commins v President, Personal Injury Commission of NSW

[2021] NSWCATAD 138

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Commins v President, Personal Injury Commission of NSW [2021] NSWCATAD 138

Hearing dates:

On the papers

Date of orders:

26 May 2021

Decision date:

26 May 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Pearson, Principal Member

Decision:

(1) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013, a hearing is dispensed with;

(2) Pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 the application for review of a claim assessment made on 26 June 2008 is dismissed.

Catchwords:

PRACTICE AND PROCEDURE – application for review of assessment of motor accident claim – whether Tribunal has jurisdiction – summary dismissal

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Motor Accidents Compensation Act 1999

Personal Injury Commission Act 2020

Cases Cited:

None cited

Category:

Procedural rulings

Parties:

Scott Commins (Applicant)
President, Personal Injury Commission of NSW (Respondent)

Representation:

Applicant (Self Represented)
S Flores-Walsh (Respondent)

File Number(s):

2021/00033322

Publication restriction:

No

REASONS FOR DECISION

1. On 29 January 2021 Scott Commins applied to the Tribunal for review of an assessment made on 26 June 2008 in relation to a claim for compensation for injuries sustained in a motor vehicle accident on 25 January 2004.

2. Mr Commins provided a copy of the assessment made by the Claims Assessment and Resolution Service, Motor Accidents Authority, of damages payable in respect of his claim, and the reasons for that decision, together with a detailed statement as to the grounds on which he disputed the assessment.

3. Mr Commins stated that he is seeking a review because the assessment did not cover damage to spine discs in his neck and lower spine, which would have taken it over the whole person impairment threshold, or wages that he had earned at times or sponsorship packages, both of which he had provided information on.

4. Mr Commins explained that his application to the Tribunal was late because he had attempted to have the claim revisited. He had contacted his local member, the Department of Fair Trading, the NSW Ombudsman’s office, the Supreme Court, and the Police Commissioner, and had been told either they had no power to act or that the matter was without errors. Eventually Fair Trading advised of the Tribunal, and in November 2020 he got through to the Tribunal and forms were sent.

5. In his application to the Tribunal Mr Commins named as the respondent agency the Motor Accidents Authority of NSW. At a directions hearing on 16 March 2021, the Director Legal and Policy Directorate of the Personal Injury Commission advised the Tribunal that the State Insurance Regulatory Authority (SIRA) had taken over from the Motor Accidents Authority (MAA) on 1 September 2015, and that on 1 March 2021 some of the former MAA functions were transferred from SIRA to the Personal Injury Commission by operation of the Personal Injury Commission Act 2020. The Personal Injury Commission is the current successor organisation of the MAA.

6. On 26 March 2021 the respondent lodged an application for an order under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) to dismiss the proceeding, on the ground that the Tribunal does not have power to review the assessment made in 2008 under the Motor Accidents Compensation Act 1999 (the MAC Act), providing submissions in support of that position.

7. The applicant provided submissions in response on 6 April 2021, in which he disputes that there is power to dismiss his application for administrative review.

8. The issue is whether the Tribunal has power to review the MAA’s assessment of 26 June 2008.

Whether a hearing should be dispensed with

9. Section 50 of the NCAT Act relevantly provides:

50 When hearings are required

1. A hearing is required for proceedings in the Tribunal except—

…

(c)   if the Tribunal makes an order under this section dispensing with a hearing, or

…

1. The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

2. The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first—

   (a)   afforded the parties an opportunity to make submissions about the proposed order, and

   (b)   taken any such submissions into account.

3. The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.

4. This section does not prevent the Tribunal from holding a hearing even if it is not required.

   10. In this case, the directions made on 16 March 2021 provided both parties with an opportunity to address in their written submissions whether the jurisdictional issue should be determined on the papers. The respondent did not consider it necessary to have a hearing. No submission was made on that question by the applicant. Having reviewed all the materials, I am satisfied that this is matter than can be adequately determined in the absence of the parties by considering the materials lodged by the parties. An order dispensing with a hearing has been made.

Whether the Tribunal has review jurisdiction

11. The Tribunal only has jurisdiction in respect of those matters for which legislation, referred to in the NCAT Act as “enabling legislation”, has conferred that jurisdiction. The “administrative review jurisdiction” of the Tribunal is provided for in s 30 of the NCAT Act:

30 Administrative review jurisdiction

1. The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator.

Note. See section 9 of the Administrative Decisions Review Act 1997.

1. The Tribunal also has the following jurisdiction in proceedings for the exercise of its administrative review jurisdiction:

   (a)   the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings,

   (b)   the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act, the Administrative Decisions Review Act 1997 or enabling legislation in connection with the conduct or resolution of such proceedings.

2. An administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction.

Note. See section 7 of the Administrative Decisions Review Act 1997.

1. An administrator, in relation to an administratively reviewable decision, is the person or body that makes (or is taken to have made) the decision under enabling legislation.

Note. See section 8 of the Administrative Decisions Review Act 1997.

…

1. An administrative review application is an application made to the Tribunal for an administrative review decision.

Note. Chapter 3 (Process for administrative reviews under this Act) of the Administrative Decisions Review Act 1997 also makes provision for the role of administrators when making administratively reviewable decisions and the role of the Tribunal when conducting an administrative review of such decisions.

12. Section 9 of the Administrative Decisions Review Act 1997 (the ADR Act) provides the circumstances in which the Tribunal has administrative review jurisdiction:

1. The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator:

   (a)   in the exercise of functions conferred or imposed by or under the legislation, or

   (b)   in the exercise of any other functions of the administrator identified by the legislation.

…

1. Nothing in this section permits administrative review jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act.

   13. The Tribunal also has “general jurisdiction”, defined in s 29 of the NCAT Act:

2. The Tribunal has general jurisdiction over a matter if—

   (a)   legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and

   (b)   the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal.

   14. “Enabling legislation” is defined in s 4 of the NCAT Act:

enabling legislation means legislation (other than this Act or any statutory rules made under this Act) that:

(a)   provides for applications to be made to the Tribunal with respect to a specified matter or class of matters, or

(b)   otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters.

15. The central issue to be determined is whether there is any “enabling legislation” which provides for the applicant to seek review by the Tribunal of the assessment decision of 26 June 2008.

16. The assessment decision was made under s 94 of the MAC Act, which is the legislation which provides for determination of compensations claims in respect of injuries sustained in motor accidents. Section 94(1) of that Act required the claims assessor, who was as at the date of the assessment an officer of the then Motor Accidents Claims Assessment and Resolution Service, to make an assessment of the issue of liability for the claim, and the amount of damages for that liability. The function of assessment of claims is now undertaken by the Personal Injury Commission.

17. Part 4.5 of the MAC Act provides for court proceedings on claims. Proceedings in respect of a claim may be taken in any court of competent jurisdiction: s 107. Under s 108, a person can commence court proceedings in respect of a claim only after a certificate has been issued in respect of the claim under s 94. Any such claim has to be brought within three years after the date of the motor accident to which the claim relates: s 109.

18. Section 170 of the MAC Act provides for administrative review of some licensing decisions relating to insurers made under the MAC Act by the State Insurance Regulatory Authority. None of the reviewable decisions relate to assessment of motor accident claims. There is no other provision of the MAC Act which confers jurisdiction on the Tribunal.

19. The Tribunal is not a “court” of the State, and so s 107 of the MAC Act does not enable an application to be made to it by a person seeking to challenge or review an assessment of a claim made under s 94. The appropriate venue for Mr Commins’ application in response to the assessment of his claim would be a court; and that avenue would require him to obtain the leave of the court to bring any proceedings well beyond the three year limit specified in s 109 of the MAC Act.

20. In the absence of enabling legislation that confers power on the Tribunal to review or revisit the assessment of Mr Commins’ motor accident claim, the Tribunal does not have jurisdiction to review the assessment of 26 June 2008. There being no power to review the assessment, the proceeding should be dismissed.

Orders

21. The orders of the Tribunal are:

1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013, a hearing is dispensed with;

2. Pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 the application for review of a claim assessment made on 26 June 2008 is dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 26 May 2021