The Opening of the Personal Injury Commission
The opening of the Personal Injury Commission was marked by a Ceremonial Sitting on 1 March 2021. The Ceremonial Sitting was held in the District Court, to accommodate the attendees as well as to maintain social distancing requirements.
Following an acknowledgment of country by Mr Garry Ella, member of the Aboriginal Land Council, the creation of the new tribunal was welcomed in speeches by the Attorney General, Mark Speakman SC, Minister for Customer Service, Victor Dominello, Michael McHugh SC, President of the NSW Bar Association and Ms Juliana Warner President of the NSW Law Society.
The Attorney General noted that the Personal Injury Commission had been the result of a consensus position in the 2018 Parliamentary Committee report, and he acknowledged the multi-partisan support and work of David Shoebridge and Daniel Mookhey in achieving that goal. The creation of the Personal Injury Commission meant a farewell to the Dispute Resolution Service and the Workers Compensation Commission with their long history of alternative dispute resolution. The Parliamentary review pointed to the need to honour the expert knowledge of workplace injury and motor vehicle injury and confirmed that this would be maintained.
Speakers and guests at the Personal Injury Commission Ceremonial Sitting (l-r) The Hon. Mark Speakman, SC MP, NSW Attorney General; The Hon. Victor Dominello, MP, Minister for Customer Service; Ms Marie Johns, Division Head, Motor Accidents Division, Personal Injury Commission; His Hon. Judge Gerard Phillips, President, Personal Injury Commission; Ms Josephine Bamber, Principal Member, Personal Injury Commission; Mr Rodney Parsons, Division Head, Workers Compensation Division, Personal Injury Commission; Mr Michael Snell, Deputy President, Personal Injury Commission, Ms Elizabeth Wood, Deputy President, Personal Injury Commission, Mr John Harris, Principal Member, Personal Injury Commission; Mr Geoffrey Parker SC, Acting Deputy President, Personal Injury Commission; Mr Larry King SC, Acting Deputy President, Personal Injury Commission
Minister Dominello said that when he became Minister in charge of the newly formed State Insurance Regulatory Authority in September 2015 the agency informed him that the two big ticket items in the portfolio that needed to be addressed were CTP reform and dispute resolution in the workers’ compensation scheme. Once he understood the complexity of both schemes he determined that a prudent approach would be to tackle one at a time starting with CTP reform, and in December 2017 a new CTP scheme came into being. The new scheme was said to be more affordable, sustainable and data-driven as a result of lengthy consultation and negotiation with scheme providers and stakeholders.
The CTP reforms overshadowed work that was also being done to alter the dispute resolution process, work which had been quietly progressing over the previous four years and involved consultation with SIRA, Icare, WIRO, the Workers Compensation Commission, as well as the lawyers, insurers and the unions and culiminated in legislation that sought to simplify the dispute resolution process for injured workers.
The next step was to bring together workers’ compensation and CTP disputes into the one tribunal. And so, in August 2019, with the successful passage of the Personal Injury Commission Bill, Australia’s newest tribunal was born.
The Minister noted that historically personal injury law has been neither unified nor consistent. The Personal Injury Commission he said is but the first step in attempting to show that two different schemes can benefit from a consistent approach in dealing with their disputes. The architecture of the Personal Injury Commission is modelled on the successful approach at NCAT and readily lends itself to future development.
McHugh SC acknowledged that the NSW Bar Association was grateful for the opportunity to provide input into the development of the Commission and thanked Robert Sheldon SC, Elizabeth Welsh, and other members of the Bar’s Common Law Committee.
He noted that there are few areas of the law that directly or indirectly touch the lives of those in the community more than motor accidents and workers’ compensation. The public must be able to have confidence that the agencies, regulators, courts and commissions involved in administering and adjudicating workplace injury and motor accidents injury compensation are accessible with the utmost integrity and will afford the injured a fair opportunity to uphold their lawful rights.
The Bar Association and others have consistently raised concerns about the performance of the motor accidents scheme, particularly against original actuarial assumptions, and this illustrated the need for independence of the new commission. McHugh SC closed his remarks by acknowledging the volume of work and contributions that have gone into raising up this new institution and confirmed that the Bar looked forward to continuing to play its role in achieving the just and fair resolution for all parties in the new Commission.
Ms Warner on behalf of the Law Society acknowledged the opportunities the President, Minister Dominello, and the Department of Customer Services, has given to the Law Society to contribute to the Commission’s establishment and welcomed the new tribunal.
Judge Gerard Phillips, the inaugural President of the new body, previously President of the Workers Compensation Commission spoke last. He spoke of the history of the predecessor tribunals that had since 1926 conducted a workers' compensation jurisdiction. Over that time there had been just eight heads of the jurisdiction. He acknowledged two of them who were present, the Honourable Terry Sheahan AO, former Justice of the Land and Environment Court and President of the Workers Compensation Commission 2002-2007, and the Honourable Greg Keating, former Judge of the District Court and President of the Workers Compensation Commission 2007-2018.
Phillips J said that some practice areas or indeed tribunals are referred to as being like a club. This would not be the case in the new Commission. Any diligent practitioner will have no trouble in preparing a case and navigating the new Commission’s processes, he said.
He confirmed that the Act mandates the publication of all decisions which would mean that the entire community and profession will have available to them the most up-to-date authorities on all the areas of the Commission’s jurisdiction.
His Hon. Judge Gerard Phillips, President, Personal Injury Commission, presides over the Ceremonial Sitting of the Commission on 1 March 2021
Phillips J noted that for the past 20 years the Dispute Resolution Service has dealt with many thousands of motor accidents claims and the Parliament has now decided that this approach would be enhanced by placing these matters in the new tribunal. He acknowledged that the new tribunal will greatly benefit from the skill and expertise which the Dispute Resolution staff and members will bring to the new Commission.
The Hon. Victor Dominello, MP, Minister for Customer Service, delivers his address at the Personal Injury Commission Ceremonial Sitting. (l-r) Ms Emma Hogan, Secretary, Department of Customer Service; Ms Juliana Warner, President, NSW Law Society; Ms Carmel Donnelly, Chief Executive SIRA; Mr Michael McHugh SC, President, NSW Bar Association; The Hon. Victor Dominello, MP, Minister for Customer Service
Phillips J formally noted that the Workers Compensation Commission of New South Wales was disbanded and the Personal Injury Commission established, representing the next chapter in the evolution of this area of the law. He said the coming months and years promise to be interesting as we build out this new tribunal to provide justice to the citizens of this State.