Condon v Bartley; Hayes v RACQ Insurance Limited; Smith v Allianz Australia Insurance Ltd; Ward v QBE Insurance (Australia) Ltd; Hackett v Allianz Australia Insurance Ltd

[2022] NSWDC 282

District Court

New South Wales

Medium Neutral Citation:

Condon v Bartley; Hayes v RACQ Insurance Limited; Smith v Allianz Australia Insurance Ltd; Ward v QBE Insurance (Australia) Ltd; Hackett v Allianz Australia Insurance Ltd [2022] NSWDC 282

Hearing dates:

23 June 2022

Date of orders:

22 July 2022

Decision date:

22 July 2022

Jurisdiction:

Civil

Before:

Wilson SC DCJ

Decision:

Condon see [82]

Hayes see [83]

Smith see [84]

Ward see [85]

Hackett see [86]

Catchwords:

CIVIL – Constitutional Law - Personal Injury Commission (PIC) – Whether an insurer based in NSW and a NSW licensed CTP Insurer is “the State” for the purposes of s75 of the Constitution Act – whether such an insurer is a “resident” of a State of Australia for the purposes of s75 – Do decisions in either of those cases require the exercise of federal jurisdiction - Who are the parties to a dispute to be determined by the PIC?

Legislation Cited:

Commonwealth of Australia Constitution Act 1900 (Section 75(iv))

Motor Accidents Compensation Act 1999 (NSW)

Motor Accident Injuries Act 2017 (NSW)

Cases Cited:

Crouch v Commissioner for Railways (Qld) (1985) 62 ALR 1

Ritchie v Nominal Defendant (District Court 5 November 2021)

Stanton v Winning [2022] NSWDC 104

Sweedman v Transport Accident Commission [2006] HCA 8

Category:

Principal judgment

Parties:

Ms Kayla Condon
Bartley

Mr Brian Hayes
RACQ Insurance Limited

Mr Matthew Smith
Allianz Australia Insurance Ltd

Ms Gail Ward
QBE Insurance (Australia) Ltd

Mr Peter Hackett
Allianz Australia Insurance Ltd

Representation:

Counsel:
Mr A Stone SC and Ms J Magee for the Plaintiff’s in the matters of Condon, Hayes, Smith, Ward and Hackett.
Dr K Rewell SC for the Defendants in the matters of Condon, Smith, Ward and Hackett.
Mr B Wilson for the Defendant in the matter of Hayes.

Solicitors:
Mr A Macri for the Plaintiff in the matter of Condon.
Ms F Allen for the defendant in the matters of Condon and Hackett.
Ms E Bussoletti for the Plaintiff in the matter of Hackett.
Mr A Attard for the Plaintiff in the matter of Smith.
Mr J Cooper for the defendant in the matter of Smith.
Mr T Mithieux for the Plaintiff in the matters of Ward and Hayes.
Mr T Ceballos for the defendant in the matter of Ward.
Ms A Jury for the defendant in the matter of Hayes.

File Number(s):

2021/00051977
2022/00099823
2022/00098861
2022/00136876
2022/00152240

Publication restriction:

None

Judgment

1. These are the reasons for the findings and orders made in these matters on 23 June 2022. I acknowledge the considerable assistance provided by counsel in the Joint Submissions in respect of these matters. Those submissions are the foundation of these reasons.

2. Each of these proceedings raises the following questions which I answered in my earlier findings, as follows:

(a)

Question: Is a New South Wales licensed CTP insurer or an interstate non-government owned CTP insurer against which a claim is made for damages under the Motor Accidents Compensation Act 1999 (NSW) or for statutory benefits or damages under the Motor Accident Injuries Act 2017 (NSW) “the State” for the purposes of s.75 of the Constitution?

Answer: No.

(b)

Question: Can a third-party insurer be a “resident” of a State of Australia for the purposes of s.75 of the Constitution?

Answer: No.

(c)

Question: Who are the parties to a dispute to be determined by the PIC?

Answer: The claimant and the CTP Insurer.

3. The proceedings before the Court directly concern all but three third party insurers licensed under the Motor Accidents Compensation Act 1999 and the Motor Accident Injuries Act 2017. The exceptions are NRMA, Youi Pty Ltd (Youi) and CIC Allianz Insurance Ltd (CIC Allianz). The issues set out above were determined in relation to NRMA by Priestley SC DCJ in Stanton v Winning [2022] NSWDC 104. There are no decisions by the PIC involving Youi to date that involve these issues.

4. The proceedings also directly concern one Queensland-based and licensed CTP insurer (RACQ Insurance Limited (RACQ)) and indirectly address another (AAI Ltd t/as Suncorp (Suncorp)).

5. The PIC has dismissed a number of applications for determination of disputes where, in the opinion of a Member, determination of that dispute may potentially require the exercise of federal jurisdiction. That has given rise to the parties approaching this Court either for determination of the application previously made to, and refused by, the Commission, or for remittal to the Commission. All five matters have been remitted.

6. The following facts relating to the five matters before the Court are drawn from the affidavit evidence and Summons and are not in dispute.

Condon v Bartley

7. The parties rely on affidavits of Frances Allen sworn 6 June 2022 and 21 June 2022, exhibits A and B, respectively, in proceedings 2021/00051977.

8. Ms. Kayla Condon is now a resident of Queensland, having resided in New South Wales at the time of her motor vehicle accident of 26 October 2017. Her claim for damages has been exempted from assessment and is before the District Court. Given the date of the accident, her claim is determined by the provisions of the Motor Accidents Compensation Act 1999.

9. I note that the Statement of Claim states that proceedings are brought pursuant to the Motor Accident Injuries Act 2017. That Act, however, applies only to motor vehicle accidents occurring after 1 December 2017. It is necessary for the Statement of Claim to be amended. I grant leave to the solicitor of the plaintiff to do so and to file an Amended Statement of Claim to this effect within 28 days.

10. The insurer for the defendant is AAI Limited trading as GIO (GIO), a corporation with its registered office in the State of New South Wales and a licensed CTP insurer in that State. As well as operating a licence through GIO, AAI Ltd also holds an NSW CTP licence through AAI Ltd t/as AAMI (AAMI). AAI Ltd also holds a CTP licence in Queensland through AAI Ltd t/as Suncorp (Suncorp).

11. Each of GIO and AAMI in NSW and Suncorp in Queensland are also corporations, not the State and not a resident of a State. The reasons and findings made in respect of GIO apply equally to those insurers. In order to avoid incurring further expense and delay, I respectfully request that the PIC accept the findings made in respect of GIO as applicable to the other insurers.

12. A dispute arose between the parties as to her impairment. An application for assessment of WPI was lodged with the then Dispute Resolution Service of the PIC on 8 July 2020.

13. Ms. Condon was assessed by Medical Assessor Shaikh on 13 October 2021. No certificate has ever been provided. There was a further assessment scheduled with Medical Assessor Tamba-Lebbie on 10 February 2022. The PIC cancelled that appointment raising issues of federal jurisdiction as between a Queensland resident and GIO, an NSW CTP insurer.

14. The parties submitted to the PIC that there was no federal jurisdiction. Nonetheless, on 22 May 2022 the PIC dismissed the application for medical assessment.

Hayes v RACQ Insurance Limited

15. The parties rely on affidavits of Tom Mithieux sworn 8 April 2022 and Alison Jury sworn 16 June 2022, marked exhibit 1 and A respectively in proceedings 2022/00099823.

16. Mr. Hayes is a resident of New South Wales. He was injured in a motor vehicle accident in New South Wales on 11 February 2019. The vehicle at fault was registered in Queensland and insured in Queensland by RACQ Insurance Ltd (RACQ).

17. RACQ is a corporation with its registered office in the State of Queensland. The company is a licensed CTP insurer in Queensland.

18. To protect the 3-year limitation period an application for assessment of damages was lodged with the PIC on 18 January 2021. The PIC responded by raising federal jurisdiction. The plaintiff submitted that no federal jurisdiction applied. On 31 March 2022, the PIC dismissed the application for the assessment of damages on the basis that it may involve the exercise of federal jurisdiction.

Smith v Allianz Australia Insurance Ltd

19. The parties rely on two affidavits of John Cooper sworn 21 June 2022, marked exhibit A and B respectively in proceedings 2022/00098861.

20. Mr. Smith has at all times been a resident of Victoria. He was injured in a motor vehicle accident in New South Wales on 5 June 2019. Allianz Australia Insurance Limited (Allianz) is the CTP insurer of the vehicle at fault. Allianz is a corporation with its registered office in New South Wales.

21. On 16 December 2021, the plaintiff lodged an application for medical assessment of impairment with the PIC. The PIC subsequently raised issues of federal jurisdiction. The parties maintain that no federal jurisdiction applies.

22. By letter dated 19 June 2022 (well after the date of filing of the Summons in this matter) Allianz conceded the 10% WPI threshold. Nonetheless, to avoid any issue in relation to the application for assessment of damages (which the plaintiff has subsequently lodged with the PIC) the parties have asked for a determination that federal jurisdiction does not apply.

Ward v QBE Insurance (Australia) Ltd

23. The parties rely on affidavits of Tom Mithieux sworn 8 June 2022 and Tim Ceballos sworn 17 June 2022, marked exhibit A and 1 respectively in proceedings 2022/00136876.

24. Ms. Ward is a resident of Victoria. She was injured in a motor vehicle accident in New South Wales on 3 January 2018. The vehicle at fault was insured with QBE Insurance (Australia) Ltd (QBE) a company with its registered office in New South Wales and licensed to issue CTP policies in that State.

25. Two applications have been lodged with the PIC, being an application for assessment of damages and an application for medical assessment of WPI. The PIC raised issues of federal jurisdiction. The plaintiff provided submissions to the effect that no federal jurisdiction applied.

26. On 6 May 2022, the PIC dismissed both applications, on the basis that to determine the matters may require the PIC to exercise federal jurisdiction.

Hackett v Allianz Australia Insurance Ltd

27. The parties rely on an affidavit of Frances Allen sworn 21 June 2022. Additionally, there is an affidavit of Peter Hunt sworn 16 June 2022 with regards to Youi Pty Ltd. Those affidavits are marked exhibit A and B respectively in proceedings 2022/00152240.

28. The plaintiff was a resident of New South Wales at the time of her motor accident on 1 April 2016. She has subsequently moved to Queensland. The insurer of the vehicle at fault was Allianz Australia Insurance Limited (Allianz). Allianz is a corporation with its registered office in New South Wales and licensed issuer of CTP policies in that State.

29. A subsidiary of Allianz is CIC Allianz Insurance Limited (CIC) (see exhibit B, annexure C). CIC is also licensed to issue CTP insurance policies in the State of New South Wales. Like the related company, it is not part of the State nor a resident of the State. Again, to avoid any further delay and expense, I would respectfully request the PIC to accept the reasons and findings made in respect of Allianz as applying to CIC.

30. I note the affidavit of Mr Hunt (exhibit A). He is a solicitor acting for Youi Pty Limited (Youi). The findings I make in respect of Allianz in the matter of Hackett apply equally to Youi. It is also a corporation limited by shares and not part of the State nor a resident of a State. I respectfully request the PIC to accept these findings as applicable to Youi so as to avoid any unnecessary expense or delay in making a further application on the questions raised in these proceedings.

31. Various medical disputes have been addressed by the Medical Assessment Service/Dispute Resolution Service/PIC.

32. On 11 January 2021, Medical Assessor Steadman certified on further assessment that the plaintiff’s injuries did not exceed the 10% WPI threshold. The certificate was not in fact issued until 25 May 2021. On 22 June 2021, the plaintiff lodged an application for review.

33. Ultimately, the PIC determined that the review should be allowed, and the matter referred to a medical review panel. The plaintiff was scheduled to attend a review panel assessment on 22 March 2022.

34. On 25 January 2022, the PIC wrote cancelling the March assessment and raising a concern that determining the matter may require the exercise of federal jurisdiction. The plaintiff provided submissions advising that no federal jurisdiction arose. On 16 May 2022 the PIC dismissed the medical review application.

BACKGROUND TO THE FEDERAL JURISDICTION ISSUES

35. The basis of the decisions of the PIC giving rise to these proceedings is partially explained in Annexure “E” to the affidavit of Frances Allen sworn 6 June 2022 (exhibit A) in the matter of Condon v Bartley:

The Commission has reviewed the application to resolve a medical dispute. The Commission’s preliminary opinion is that it may not be allowed to determine the dispute and instead, the District Court should determine it. This is because the parties to the dispute may potentially be the State of NSW and a resident of another State …

Importantly:

1) The Insurer, GIO, and the claimant are the parties to the medical dispute. The claimant resided in the State of QLD on the date the application was filed with the Commission.

2) A Judge has not decided if GIO is legally considered to be the State of NSW.

3) An immediate consequence of Judge Gibb’s reasoning in Ritchie v Nominal Defendant (District Court 5 November 2021) is that the Commission does not have jurisdiction to assess any medical dispute, merit review matter, miscellaneous assessment matter or damages dispute between a State and a resident of another State.

36. As Priestley SC DCJ found in Stanton, the position of the Nominal Defendant considered by Gibb DCJ in Ritchie is not analogous to the position of an NSW licensed CTP insurer under the motor accident legislation. Section 32(1) of the Motor Accident Injuries Act 2017 provides that for the purposes of that Act the State Insurance Regulatory Authority is the Nominal Defendant. There is no doubt that the State Insurance Regulatory Authority is “the State of New South Wales” for the reasons explained by Priestley SC DCJ in Stanton at [12]. No such factors apply to the licensed insurers.

37. Annexure “E” to Ms Allen’s affidavit in Condon refers to a publication by the PIC “What is federal jurisdiction and how does it affect applications”.

38. The publication also provides information relating to the Commission’s approach to disputes potentially involving exercise of federal jurisdiction:

The Personal Injury Commission cannot determine an application if it would be required to exercise federal jurisdiction to make that determination …

Federal jurisdiction is the authority to exercise the judicial power of the Commonwealth and that includes the power to determine disputes between:

States; or

residents of different States; or

a State and a resident of another State …

Importantly, Division 3.2 of the Personal Injury Commission Act 2020 enables persons, with leave of the District Court, to commence proceedings in that Court for the determination of applications that the Commission cannot determine because those applications involve the exercise of federal jurisdiction.

39. The publication then states that applications that can be affected include claims for damages under the Motor Accidents Compensation Act 1999, claims for statutory benefits or damages under the Motor Accident Injuries Act 2017 and applications relating to such claims including medical assessments, merit reviews and a review of or appeal from such decisions.

40. The publication explains that having regard to the decision in Ritchie, the Commission cannot determine a matter where the Nominal Defendant is a party and the other party is a resident of a State other than New South Wales, because it would be required to exercise federal jurisdiction.

41. The publication then refers to the decision of Priestley SC DCJ in Stanton:

On 11 April 2022, a Judge determined that one licensed CTP insurer in NSW, namely NRMA Pty Ltd is a private corporation and so, when that insurer is a party to a proceeding they should not be treated as a particular State …

Priestley SC, DCJ determined that NRMA, as a company limited by shares, carrying out the commercial activity of insurance, was not part of the State of NSW. NRMA’s functions were not analogous to those of the Nominal Defendant/SIRA and therefore the decision in Ritchie was not relevant.

Some commentators have said that this decision should represent a binding precedent in respect of any dispute between an interstate resident and any NSW CTP insurer. The Commission notes that this decision related specifically to NRMA Pty Ltd and its precedent value is also related specifically to NRMA Pty Ltd. [emphasis added]

42. The evidence before the Court demonstrates that all other NSW licensed insurers participating in the motor accident scheme in New South Wales are in the same position as NRMA in Stanton. They are companies limited by shares with separate corporate structures and functions and can in no way be regarded as the State or analogous to the Nominal Defendant.

43. The purpose of these proceedings is for the court to make findings and orders relating to all licensed insurers participating in the motor accident scheme in New South Wales under the present and previous motor accident legislation (other than NRMA) to the same effect as the findings and orders by Priestley SC DCJ in Stanton.

INTERSTATE CTP INSURERS

44. Some of the motor vehicles causing accidents in NSW are registered and carry CTP insurance from interstate.

45. Three States have a single government-owned and government-controlled CTP insurer:

1. Victoria – The Transport Accident Commission (TAC);

2. Tasmania - The Motor Accident Insurance Board (MAIB);

3. Western Australia - The Insurance Commission of Western Australia (ICWA).

46. There is no dispute that these three entities are relevantly their respective “States”. The issue was not disputed before and accepted by the High Court in Sweedman v Transport Accident Commission [2006] HCA 8. Claims for damages in relation to a motor accident in New South Wales by residents of any Australian State against one of these three “government insurers” will give rise to federal jurisdiction except where the claimant is resident in the same State as the insurer. For example, a Victorian claimant against TAC.

47. However, claims by NSW residents (or residents of any other state injured in a motor vehicle accident in NSW) against non-government insurers licensed in other States does not give rise to federal jurisdiction as private insurers are not part of the State.

48. Queensland is geographically proximate to NSW. Queensland registered vehicles periodically cause accidents in NSW. Suncorp and RACQ are two large, non-government owned Queensland licensed CTP insurers. Allianz and QBE are also licensed CTP insurers in Queensland in addition to being licensed CTP insurers in NSW.

49. As illustrated by the Hayes matter, the PIC raises federal jurisdiction in disputes between NSW residents and Queensland CTP insurers on the basis of the lack of a District Court judicial finding that these insurers are not part of the State of Queensland. Therefore, these proceedings also seek findings and orders that Suncorp and RACQ (Queensland licensed insurers) are not part of the State of Queensland (or any other state).

Consideration

50. Section 75 of the Constitution provides as follows:

In all matters –

(i)    arising under any treaty;

(ii)   affecting consuls or other representatives of other countries;

(iii)   in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;

(iv)   between States, or between residents of different States, or between a State and a resident of another State;

(v)   in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;

the High Court shall have original jurisdiction.

51. Only s.75 (iv) is relevant to the issues in these proceedings.

52. The first question is whether a licensed insurer participating in the New South Wales and Queensland motor accident schemes is “a State” so that a matter between that licensed insurer and a resident of another State invokes federal jurisdiction.

53. Each of the licensed insurers involved in the proceedings before the Court are companies in no way analogous to the Nominal Defendant. None of these licensed insurers can be described as a part or instrument or agent of the State of New South Wales or Queensland. The insurers participate in the respective motor accident schemes established by the Motor Accident Injuries Act 2017 (NSW) and its predecessor, and the Motor Accident Insurance Act 1994 (Qld) but do so on a commercial basis. The insurers receive income from their participation in these schemes and are accountable to their shareholders and principals.

54. All licensed insurers in NSW and Queensland participate in their respective schemes in the same way as NRMA participate in the NSW scheme. All of the insurers in these proceedings, and indeed all insurers licensed to participate in the present motor accident scheme and its predecessor, and its Queensland equivalent are in exactly the same position as NRMA in NSW and are not to be regarded as “the State of New South Wales” or “the State of Queensland” for the reasons given by Priestley SC DCJ in Stanton which I, respectfully, endorse and adopt.

55. As determined by Gibb DCJ in Ritchie, the State Insurance Regulatory Authority, or such other entity as may hold the same statutory functions, “is the Nominal Defendant”, by virtue of s.32(1) of the Motor Accident Injuries Act 2017 but is not identified as any of the licensed insurers. To the contrary, its function as regulator is separate and distinct from the powers and functions of the PIC and is separate and distinct from the rights and obligations of the insurers.

56. Nor is there any provision of the Motor Accident Injuries Act 2017 or its predecessor that could in any way be construed as including an insurer in “the State of New South Wales”. To the contrary, the Acts provide for rights and obligations of the insurers; in some cases, the obligations of insurers are expressed to be a condition of their licences.

57. The status of each insurer (except NRMA) as a corporation independent of the State of New South Wales or the State of Queensland is addressed in affidavits filed in each matter.

58. In each case, the PIC has refused to accept the submissions of one or both of the parties that the insurer concerned is not part of the State.

59. All parties to these proceedings submitted that the Court should find that each of the New South Wales insurers involved in the proceedings, as well as CIC Allianz Insurance Ltd and Youi Pty Ltd, are not the State of New South Wales. Likewise, it was submitted that the Court should find that AAI Ltd t/as Suncorp and RACQ are not the State of Queensland.  I accept those submissions and make those findings.

60. None of the licensed insurers are a “resident” of any State of Australia for the purposes of s.75(iv) of the Constitution because the words “residents” and “resident” in s.75(iv) refer only to natural persons not corporations: Crouch v Commissioner for Railways (Qld) (1985) 62 ALR 1.

61. The parties to a dispute before the PIC are the claimant (the injured person) and the insurer. The driver or owner insured by the insurer is not a party in a matter before the Commission.

62. As Priestley SC DCJ explained in Stanton at [34ff], the structure of both the Motor Accident Injuries Act and its predecessor leads to the conclusion that a claim for statutory benefits and/or damages is in reality and in fact a claim against the insurer. The insurer receives the claim; the insurer has unfettered power to deal with the claim, subject only to its obligations under the Acts; the liability for the claim falls to the insurer alone; decisions in relation to the claim, including applications for determination of disputes and the defence of applications brought by the claimant are made by the insurer without reference to the driver or owner alleged or deemed to be at fault; the hearing of a merits dispute involves the claimant and the insurer; the application, reply and material provided in relation to a medical dispute are prepared and lodged by the claimant and the insurer. The insured (the owner and or driver of the motor vehicle at fault) has no role whatsoever or right to be heard in respect of any such dispute.

63. As Priestley SC DCJ pointed out, it is also consistent with the objects of both Acts that the insurer responds to a claim in its own right, the insurer being in the position to ensure that the objects of the Acts are promoted.

findings

Condon v Bartley

64. AAI Ltd t/as GIO is a corporation and does not form part of the State of NSW.

65. AAI Ltd t/as GIO is not a resident of the State of NSW or any other State or Territory.

66. The parties to any dispute in respect of this matter which is referred to the PIC are the licensed insurer (AAI Ltd t/as GIO), and the plaintiff.

67. As an ancillary matter, I also find that 2 other subsidiaries of AAI Limited, namely Suncorp and AAMI do not form part of a State or are residents of a State or Territory.

Hayes v RACQ Insurance Limited

68. RACQ is a corporation and does not form part of the State of Queensland.

69. RACQ is not a resident of the State of Queensland or any other State or Territory.

70. The parties to any dispute in respect of this matter which is referred to the PIC are the licensed insurer (RACQ) and the Plaintiff.

Smith v Allianz Australia Insurance Ltd

71. Allianz is a corporation and does not form part of the State of NSW.

72. Allianz is not a resident of the State of NSW or any other State or Territory.

73. The parties to any dispute in respect of this matter which is referred to the PIC are the licensed insurer (Allianz) and the Plaintiff.

Ward v QBE Insurance (Australia) Ltd

74. QBE is a corporation and does not form part of the State of NSW.

75. QBE is not a resident of the State of NSW or any other State or Territory.

76. The parties to any dispute in respect of this matter which is referred to the PIC are the licensed insurer (QBE) and the Plaintiff.

Hackett v Allianz Australia Insurance Ltd

77. Allianz is a corporation and does not form part of the State of NSW.

78. Allianz is not a resident of the State of NSW or any other State or Territory.

79. The parties to any dispute in respect of this matter which is referred to the PIC are the licensed insurer (Allianz) and the Plaintiff.

80. As an ancillary matter based on the evidence in these proceedings, I find that Youi Pty Ltd does not form part of a State and is not a resident of a State or Territory.

Scope of findings

81. For clarity, whilst these proceedings relate to GIO, Allianz, QBE and RACQ, I intend for the findings to also extend to the following companies:

1. AAI Ltd t/as Suncorp;

2. AAI Ltd t/as AAMI;

3. CIC Allianz Insurance Ltd; and

4. Youi Pty Ltd.

orders

Condon v Bartley

82. In relation to the Motion filed by the defendant on 6 June 2022, by consent the Court makes the following orders:

1. leave to the parties to make a compensation matter application to the Court refused pursuant to Section 26(3) of the Personal Injury Commission Act 2020 (NSW) [“the PIC Act”] on the basis that the determination of the matter by the usual decision maker would not involve any exercise of federal jurisdiction (being a dispute between a resident of Queensland and the defendant’s compulsory third party insurer, AAI Ltd t/as GIO, a corporation that does not form part of the State of New South Wales);

2. pursuant to Section 26(5) of the PIC Act, remit the matter for determination by a medical assessor at the PIC on the basis that a medical assessor does have jurisdiction to determine the medical dispute;

3. pursuant to Section 26(6) of the PIC Act, the PIC is ordered to determine the medical dispute on an expedited basis, given the delays that have been occasioned in the matter by virtue of the PIC raising an issue of federal jurisdiction;

4. the defendant to pay the plaintiff’s regulated costs of the Notice of Motion.

Hayes v RACQ Insurance Limited

83. In relation to the Summons filed on 7 April 2022, by consent the court orders:

1. leave to the parties to make a compensation matter application to the District Court refused pursuant to Section 26(3) of the Personal Injury Commission Act 2020 (NSW) [“the PIC Act”] on the basis that the determination of the matter by the usual decision maker would not involve any exercise of federal jurisdiction (being a dispute between a resident of New South Wales and RACQ Insurance Ltd, a corporation that does not form part of the State of New South Wales or the State of Queensland);

2. pursuant to Section 26(5) of the PIC Act, remit the matter for determination by a PIC Member at the PIC on the basis that a PIC Member does have jurisdiction to determine the assessment of damages;

3. given the initial application for damages assessment (PIC Application #M10486197/22) was lodged within 3 years of the subject accident, pursuant to Section 26(6) of the PIC Act, the PIC is ordered to:

1. withdraw the PIC decision of 31 March 2022 dismissing the plaintiff’s application lodged by the plaintiff seeking an assessment of damages; and

2. treat the application as if it had been filed (as it was) on 18 January 2021;

4. the defendant to pay the plaintiff’s regulated costs of the Summons.

Smith v Allianz Australia Insurance Ltd

84. In relation to the Summons filed on 6 April 2022, by consent the courts makes the following orders:

1. leave to the parties to make a compensation matter application to the District Court refused pursuant to Section 26(3) of the Personal Injury Commission Act 2020 (NSW) [“the PIC Act”] on the basis that the determination of the matter by the usual decision maker would not involve any exercise of federal jurisdiction (being a dispute between a resident of Victoria and Allianz Australia Insurance Ltd, a corporation that does not form part of the State of New South Wales);

2. note that subsequent to the filing of the Summons, the defendant has conceded that the plaintiff’s injuries exceed the 10% whole person impairment threshold, thus removing any current necessity for any medical dispute to be referred to the PIC for determination;

3. accordingly, Summons dismissed;

4. the defendant to pay the plaintiff’s regulated costs of the Summons.

Ward v QBE Insurance (Australia) Ltd

85. In relation to the Summons filed on 6 June 2022, by consent the Court orders:

1. leave to the parties to make a compensation matter application to the District Court refused pursuant to Section 26(3) of the Personal Injury Commission Act 2020 (NSW) [“the PIC Act”] on the basis that the determination of the matter by the usual decision maker would not involve any exercise of federal jurisdiction (being a dispute between a resident of Victoria and QBE Insurance (Australia) Ltd, a corporation that does not form part of the State of New South Wales);

2. pursuant to Section 26(5) of the PIC Act, remit the medical dispute for determination by a medical assessor at the PIC on the basis that a medical assessor does have jurisdiction to determine the medical dispute;

3. pursuant to Section 26(6) of the PIC Act, the PIC is ordered to determine the medical dispute on an expedited basis, given the delays that have been occasioned in the matter by virtue of the PIC raising an issue of federal jurisdiction;

4. pursuant to Section 26(5) of the PIC Act, remit the assessment of damages for determination by a PIC Member at the PIC (as and when the medical dispute has been determined and the matter is ready for assessment) on the basis that a PIC Member does have jurisdiction to determine the assessment of damages;

5. given the initial application for damages assessment (PIC Application #M10486197/22) was lodged within 3 years of the subject accident, pursuant to Section 26(6) of the PIC Act, the PIC is ordered to:

1. withdraw the PIC decision of 6 May 2022 dismissing the plaintiff’s application lodged by the plaintiff seeking an assessment of damages; and

2. treat the application as if it had been filed (as it was) on 21 December 2020;

6. the defendant to pay the plaintiff’s regulated costs of the Summons.

Hackett v Allianz Australia Insurance Ltd

86. In relation to the Summons filed by the defendant on 26 May 2022;

1. leave to the parties to make a compensation matter application to the District Court refused pursuant to Section 26(3) of the Personal Injury Commission Act 2020 (NSW) [“the PIC Act”] on the basis that the determination of the matter by the usual decision maker would not involve any exercise of federal jurisdiction (being a dispute between a resident of Queensland and Allianz Australia Insurance Ltd, a corporation that does not form part of the State of New South Wales);

2. pursuant to Section 26(5) of the PIC Act, remit the medical dispute for determination by a medical review panel at the PIC on the basis that a medical review panel does have jurisdiction to determine the medical dispute;

3. pursuant to Section 26(6) of the PIC Act, the PIC is ordered to convene the medical review panel on an expedited basis, given the delays that have been occasioned in the matter by virtue of the PIC raising an issue of federal jurisdiction;

4. the defendant to pay the plaintiff’s regulated costs of the Summons.

**********

Decision last updated: 22 July 2022