Milla v Transport Accident Commission
[2022] NSWPIC 127
•22 March 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Milla v Transport Accident Commission [2022] NSWPIC 127 |
| CLAIMANT: | Elizabeth Milla |
| INSURER: | Transport Accident Commission |
| MEMBER: | Maurice Castagnet |
| DATE OF DECISION: | 22 March 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Claims assessment; application to compensate relatives; whether the proceedings involve federal jurisdiction; whether the Personal Injury Commission (the Commission) has jurisdiction to determine the proceedings where the claimant is a resident of the Australian Capital Territory and the insurer is an interstate statutory insurer (Victoria); whether the Commission has power to dismiss the proceedings if a party has not used their “best endeavours” to settle a claim before referring it for assessment; section 7.32(3) of the Motor Accident Injuries Act 2017 considered; Held – the matter has jurisdiction to determine the proceedings. |
| DETERMINATIONS MADE: | 1. Pursuant to Clause 10(d) of Procedural Direction MA1, the proceedings are referred to the stood over list. 2. Each party has liberty to restore the proceedings before 22 September 2022. |
PROCEDURAL DECISION
Claim for damages – Application to compensate relatives
PROCEDURAL ISSUE
On 25 July 2021, the claimant made an application for compensation to the insurer, the Transport Accident Commission, seeking damages arising from the death of her husband in a motor accident on Olympic Highway, the Rocks, NSW on 14 June 2021.
On 1 December 2021, the claimant made an application to the Personal Injury Commission (“the Commission”) seeking referral of her claim for damages for assessment.
The claimant says that she is, and was at the time of making the application, a resident of the Australian Capital Territory. The insurer is a statutory corporation established by the Transport Accident Act 1986 (Victoria).
The claimant submits that this is a matter between a State and a resident of another State involving the exercise of federal jurisdiction, and that the Commission does not have jurisdiction.
The claimant therefore seeks to have her application dismissed so that she may proceed to seek leave from the District Court of NSW pursuant to section 26 of the Personal Injury Commission Act 2020 (“the PIC Act”), to make her application to the Court instead of the Commission.
The insurer submits that the application should be dismissed but on different grounds. The insurer contends the claimant has not used her best endeavours to resolve the claim before it was referred to the Commission for assessment in contravention of section 7.32(3) of the Motor Accident Injuries Act 2017 (“the MAI Act”).
THE RELEVANT LEGISLATION
Division 3.2 of the PIC Act regulates the determination of “federal proceedings”.
Section 25 of the PIC Act provides that federal jurisdiction means jurisdiction of a kind referred to in section 75 or 76 of the Australian Constitution.
Section 75 (iv) of the Australian Constitution confers original jurisdiction on the High Court of Australia in matters between States, or between residents of different States, or between a State and a resident of another State.
Section 77 provides that with respect to any of the matters mentioned in section 75 the Federal Parliament may make laws investing any Court of a State with federal jurisdiction.
Section 39 of the Judiciary Act 1903 is a law investing courts of the state with federal jurisdiction. It provides, among other things, that Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it.
The Commission is not a Court of the State of New South Wales and therefore does not have jurisdiction to hear and determine matters which involve the exercise of federal jurisdiction in the circumstances provided in s. 75(iv) of the Australian Constitution.
Matters involving the exercise of federal jurisdiction may be the subject of application to the District Court under s 26 of the PIC Act.
DISCUSSION
I accept that the Commission does not have jurisdiction to determine a dispute between a State and a resident of another State.
The Transport Accident Commission is a statutory insurer established under by Pt 2 (ss 10-33) of the Transport Accident Act 1986 (Victoria) with characteristics which bring it within the constitutional description of the State of Victoria for the purposes of s 75(iv) of the Constitution. [See Sweedman v Transport Accident Commission [2006] HCA 8 at [12].
I do not accept, however, that the claimant, as a resident of the Australian Capital Territory is a “resident of another State” for the purpose of section 75(iv) of the Australian Constitution.
I therefore find a dispute between a State and a resident of a Territory does not involve the exercise of federal jurisdiction and the Commission has jurisdiction to hear the matter.
The insurer submits that the application should be dismissed on the grounds that the claimant has not used her best endeavours to resolve the claim and that it was referred to the Commission for assessment prematurely, in contravention of section 7.32(3) of the MAI Act.
Section 7.32(3) provides:
(1) A claim for damages may be referred to the Commission by the claimant or the insurer, or both, for assessment under this Division.
(2) (Repealed)
(3) Parties to a claim must use their best endeavours to settle the claim before referring it for assessment under this Division.
The insurer submits that there are still many steps to be taken by the parties before the matter is ready for assessment. For example, the insurer has not yet determined liability, the claimant has not yet provided section 6.25 particulars and the parties have not yet had an opportunity to participate in a settlement conference.
The parties are required to use their “best endeavours” to settle the claim before it is referred for assessment, but I have no power to dismiss a claim if the parties do not use their best endeavours.
Section 54 of the PIC Act provides:
“54 Dismissal of proceedings
The Commission may at any stage dismiss proceedings before it—
(a)if it is satisfied that the proceedings have been abandoned, or
(b)if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c)for any other ground of dismissal specified in the Commission rules.”
Rule 77 of the Personal Injury Commission Rules 2021 relevantly provides:
“77 Dismissal of proceedings
The following grounds are specified for section 54(c) of the PIC Act—
(a) …
(b) for proceedings by an application made under the motor accidents legislation—
(i) if the application relates to a medical assessment—the application is not likely to be ready for determination within the next 6 months, or
(ii) the applicant has failed, without reasonable excuse, to comply with a direction given by the Commission or the President, or
(iii) the applicant has failed to prosecute the proceedings with due despatch, or
(iv) there is no jurisdiction to determine the dispute to which the application relates, or
(v) the application is being used for an improper purpose or is otherwise an abuse of process, or
(vi) the application was made by a person who died after the application was made, unless the Commission has been provided with a copy of the grant of probate or letters of administration for the person’s estate and is satisfied that the estate is seeking to pursue the application.”
None of the above criteria apply to the claimant’s application to refer the claim for assessment.
The claimant made the application for referral for the purpose of satisfying the requirements of sub-section 26(3)(a) of the PIC Act. The claimant did so after obtaining the insurer’s agreement that the Commission did not have jurisdiction to determine the claim.
I have determined that the Commission does have jurisdiction to proceed with the application.
It is a matter for the claimant if she wishes to withdraw the application at this stage, but I do not have the power to dismiss the proceedings and the appropriate course is that I stand the matter over to the stood over list.
DETERMINATION
Pursuant to Clause 10(d) of Procedural Direction MA1, the proceedings are referred to the stood over list.
Each party has liberty to restore the proceedings before 22 September 2022.
Member Maurice Castagnet
Motor Accidents Division
Personal Injury Commission