This article continues our series on motor accident compensation in Western Australia. You can read about the specific features of the Motor Vehicle (Third Party Insurance) Act 1943 (“MV(TPI) Act”) in part 4 found here.
The MV(TPI) Act establishes the statutory foundation for motor accident injury claims in Western Australia. While Western Australia does not operate a structure equivalent to the Dispute Resolution Service (DRS) in New South Wales, it provides a comprehensive framework for the assessment and resolution of claims administered by the Insurance Commission of Western Australia (ICWA). Disputes relating to liability, treatment, rehabilitation or damages are addressed through internal ICWA processes and, if necessary, litigation in the District or Supreme Court.
If a claimant is dissatisfied with ICWA’s decision regarding liability, quantum, or funding of treatment or rehabilitation, an internal review can be requested. Where the claimant remains dissatisfied, the claim proceeds through negotiations with ICWA. If negotiations do not resolve the dispute, the matter proceeds through pre-action disclosure processes and may ultimately be litigated. Western Australia does not use separate merit review officers, but ICWA routinely conducts internal reconsiderations of decisions.
There is also financial assistance for legal representation through ICWA in certain circumstances, particularly in catastrophic injury cases under the CAT Scheme.
The MV(TPI) Act does not provide a statutory definition of “earner” equivalent to the MAIA. Instead, employment and income status are assessed under general common law principles when determining:
In Western Australia, economic loss assessments typically consider:
These principles determine eligibility and calculation of economic loss damages under the MV(TPI) Act.
Once a claim for damages is made, ICWA investigates the circumstances of the accident and assesses liability. If liability is disputed, the matter proceeds through the standard negotiation process or the pre-trial procedures set out in the District and Supreme Court Rules.
Unlike the NSW system under MAIA, liability decisions are not subject to a statutory assessment body. Liability disputes in Western Australia are ultimately resolved:
ICWA may face cost consequences depending on the outcome of court proceedings and offers made under the Rules of the Supreme Court and District Court.
Medical evidence in Western Australia is regulated through:
While there is no NSW-style list of “authorised health practitioners”, ICWA may require claimants to attend independent medical examinations. Courts may also direct joint experts or order the production of specific medical evidence.
Admissible medical evidence must comply with:
Legal costs in Western Australian motor vehicle injury claims are regulated by:
While WA does not adopt the MAIA cost restrictions, costs must remain proportionate, and ICWA may dispute costs considered excessive.
Although Western Australia does not have the MAIA framework, it has detailed statutory and procedural requirements. Key obligations include:
Under the Motor Vehicle (Catastrophic Injuries) Act 2016 (WA), ICWA must fund reasonable and necessary treatment, care and support for eligible catastrophically injured persons.
ICWA may require the claimant to attend independent medical examinations to assess injury severity, treatment needs or impairment.
WA requires:
Although not identical to NSW internal reviews under MAIA, ICWA typically conducts internal reconsiderations upon request. There is no statutory timeframe identical to s7.9 MAIA, but ICWA must act reasonably.
Western Australia’s statutory scheme differs significantly from the MAIA model but includes its own structured dispute resolution elements. Some anticipated challenges include:
While Western Australia does not have a separate statutory tribunal for CTP disputes, the combination of ICWA’s internal processes and court pre-trial procedures generally encourages early resolution of claims.
Read more about Motor Accident Compensation in Western Australia in part 6 of the series, “Medical Assessment Processes”.
This article continues our series on motor accident compensation in Queensland. You can read about the specific features of the Motor Accident Insurance Act 1994 (“MAI Act”) in part 4 found here.
The MAI Act establishes a structured pre-court claims and dispute resolution system for motor accident injury claims in Queensland. While it does not replicate New South Wales’ Dispute Resolution Service (DRS), it creates an extensive statutory framework for the management, assessment and resolution of claims. All disputes arising under the MAI Act follow the pre-court procedures in Chapter 2, which must be completed before litigation can be commenced.
If a claimant is dissatisfied with an insurer’s decision relating to liability, quantum, treatment, rehabilitation, or the assessment of economic loss, an internal review may be sought from the insurer. If the claimant remains dissatisfied, the matter proceeds through the MAI Act’s compulsory conference regime. Queensland requires strict compliance with the Notice of Accident Claim (NOAC) and the subsequent exchange of information before a claim may progress.
The MAI Act provides access to funded legal assistance under certain circumstances, particularly for claimants whose claims have been denied or where liability is contested. These schemes are administered through MAIC and participating legal service providers.
The MAI Act does not contain a statutory definition of “earner” as appears in the MAIA. Instead, employment status is assessed in accordance with common law principles relevant to determining:
In Queensland:
are all relevant to determining the claimant’s economic loss entitlements under the MAI Act.
Once a claim for damages is made, the matter proceeds through the mandatory pre-court steps under the MAI Act, including exchange of information, medical examinations, and a compulsory conference. This is the primary statutory dispute resolution mechanism in Queensland. There is no equivalent of a binding DRS certificate.
An insurer’s denial of liability does not prevent a claimant progressing through the statutory process. Liability is ultimately resolved:
The insurer may face cost consequences in court proceedings depending on the final offers exchanged under s51C and s51D of the MAI Act.
The MAI Act regulates medical evidence through:
Queensland does not use a NSW-style “authorised practitioner” list, but insurers may require a claimant to attend independent medical examinations. Courts may appoint experts or direct joint medico-legal reports.
Evidence must comply with:
Costs in Queensland CTP matters are regulated through:
Unlike NSW, Queensland does not cap costs through a statutory schedule tied to impairment categories. However, costs must remain proportionate to the claim and may be scrutinised during litigation.
Although Queensland does not follow the MAIA framework, it imposes detailed statutory obligations. Some of the most relevant include:
Under s51B MAI Act, insurers must provide reasonable and appropriate rehabilitation, and must respond to rehabilitation requests within 10 business days.
Insurers may require claimants to attend medical examinations under s45.
Before court proceedings, parties must attend a compulsory conference.
The conference requires:
If the claim does not settle at conference, each party must make a mandatory final offer (MFO).
Cost consequences attach to rejecting a reasonable MFO (s51C–51D).
Although not identical to NSW, insurers typically conduct reviews of liability or rehabilitation decisions upon request. There is no statutory timeframe equivalent to MAIA s7.9, but insurers must act reasonably and respond promptly.
While Queensland’s MAI Act does not replicate the NSW DRS system, it introduces its own structured approach to resolving disputes. Key practical challenges include:
The compulsory conference and final offer regime generally promote early resolution, although complex liability disputes may still require judicial intervention.
Read more about Motor Accident Compensation in Queensland in part 6 of the series, “Medical Assessment Processes”.
This article continues our series on motor accident compensation in the ACT. You can read about the features of the ACT motor accident compensation scheme in part 4.
Unlike NSW, the ACT does not operate a statutory Dispute Resolution Service (DRS), nor does it incorporate mandatory internal review or merit review structures for CTP insurers. Disputes in the ACT are managed within a common law, fault-based framework under the Road Transport (Third-Party Insurance) Act 2008 (ACT) (“RT(TPI) Act”), supplemented by the Road Transport (Third-Party Insurance) Regulation and internal insurer guidelines.
If a claimant is dissatisfied with an insurer’s decision relating to liability, quantum, or payment of treatment and rehabilitation expenses, the claimant may request the insurer reconsider its position. If the matter does not resolve, disputes may progress through pre-litigation procedures and, ultimately, the ACT Supreme Court. There is no statutory concept of Pre-Accident Weekly Earnings (PAWE) or statutory income benefits, as the ACT does not provide statutory weekly compensation.
The ACT Government does fund limited CTP Legal Assistance Schemes for low-income claimants to obtain legal advice regarding CTP disputes, although these programs are not widely publicised.
Because the ACT has no statutory benefits scheme, there is no statutory definition of “earner” as exists under the NSW MAIA. Instead, a person’s employment status is relevant in assessing common law damages, including:
An “earner” in the ACT context is considered by reference to ordinary common law principles, which examine:
Once a claim for damages is made, disputes about liability are resolved through negotiation, compulsory conferences, or proceedings in the ACT Supreme Court. There is no statutory assessment of liability, nor any equivalent to a binding or non-binding DRS Certificate.
An insurer’s denial of liability has no effect on a claimant’s right to commence court proceedings. Liability disputes are determined according to:
Insurers face potential cost consequences if they maintain unsuccessful liability defences.
The ACT does not operate an “authorised practitioner” list and does not restrict expert evidence through statutory medical guidelines as NSW does. Instead, medico-legal evidence is governed by the Evidence Act 2011 (ACT) and the Court Procedures Rules 2006 (ACT).
Expert evidence must comply with:
Accordingly, parties may rely on treating practitioners or independent medical experts of their choosing, subject to court rules.
The ACT scheme does not include the extensive statutory costs regulations found in MAIA. Legal costs in CTP matters are regulated by:
Costs remain substantially governed by common law and court discretion.
The ACT does not impose MAIA-style statutory notification or review deadlines. Instead, the key requirements are:
Unlike NSW, the ACT has no statutory medical assessment service. Medical disputes are resolved through:
There is no statutory limit on medical assessments.
Because the ACT scheme is grounded in pure common law principles, it avoids many of the procedural complexities of the MAIA. Nonetheless, the ACT system presents its own challenges:
Read more about Motor Accident Compensation in the ACT in part 6 of the series, “Medical Assessment Processes”.
This article continues our series on motor accident compensation in NSW. You can read about the specific features of the Motor Accidents Injuries Act 2017 (“MAIA”) in part 4 found here.
The MAIA authorises the establishment of a Dispute Resolution Service (DRS) (s 7.9 MAIA). All Claims Assessors and Medical Assessors now fall within the DRS, as does a new class of decision-maker, known as Merit Review Officers. There is some limited overlap between Claims Assessors and Merit Review Officers. Similarly, there is a limited number of Claims Assessors who only can assess claims under the MAC Act.
If a claimant is dissatisfied with the insurer’s decision relating to any aspect of the claim, for example determination of Pre-Accident Weekly Earnings (PAWE), an internal review can be required. If the claimant is dissatisfied with the internal review outcome, or if it does not occur, a merit review application can be made to the DRS. This application must be made within 28 days of the claimant receiving the insurer’s internal review decision, or where no internal review was required, within 28 days of receipt of the reviewable decision (MAG, 7.194).
Note that there is a free legal-aid scheme available for assistance of applicants for External Merit Review applications to the DRS. It is not widely publicised but is very useful.
The MAIA provides a definition of requirements to be met for a claimant to be considered an “earner” for the purpose of obtaining statutory benefits:
Once a claim for damages is made by a claimant, the matter can be referred for assessment to the DRS. Unlike under MACA, where an insurer denies liability under MAIA, the claim will not be exempt from assessment (Motor Accidents Injuries Regulation (MAIR), 14).
An assessment on the issue of liability is not binding on any party to the assessment (s 7.38(1) MAIA). An assessment on the amount of damages for liability is binding on the insurer if:
Accordingly, where an insurer denies liability and the claim for damages is assessed by DSR, the insurer may elect not to accept the certificate of assessment concerning liability. However, there are potential cost implications should they proceed to Court (see below).
Unless a health practitioner is a treating practitioner of the claimant or is “authorised” by the MAG to give evidence, their evidence is not admissible in proceedings before a court for damages, merit reviews and medical assessment in relation to:
The DRS will publish a list of authorised health practitioners on its website who are authorised to give evidence. Parties are therefore limited in using the practitioners approved on this list, as the evidence from “unauthorised” practitioners will not be admissible.
The regulation of costs under MAIA is more far-reaching than the limitations imposed by MACA. There is no real utility in my dealing with the costs provisions today.
Key time limits imposed on claimant and insurer (MAIA and Motor Accidents Guidelines (MAG)):
With any new legislation setting out to achieve such a complete overhaul, only time will tell how these changes will apply in practice. On the face of it, it appears there will be a number of initial challenges for all involved:
Read more about Motor Accident Compensation in NSW in part 6 of the series, “Medical Assessment Services”.
On the tail of an ongoing scandal around worker’s wages, former Master Chef judge George Calombaris announced yesterday that the MAdE Establishment restaurant group (Made Group) was placed into voluntary administration. Administrators from financial and restructuring firm KordaMentha were appointed as voluntary administrators of 22 companies in the Made Group, while the frozen yogurt operation Yo-Chi will remain unaffected. A total of 12 restaurants, including five fine dining restaurants and 7 souvlaki outlets, immediately ceased trading, putting the future of over 400 employees into question.
Aside from general factors that have been negatively impacting the hospitality industry in recent years, such as:
a decline in trading across the businesses’ venues as a result of the employee underpayment scandal that rocked the Made Group back in July is cited as a major contributor to the Groups financial situation. Mr Calombaris admitted that the business had underpaid staff by $7.8 million, which has since been repaid to workers, in addition to a $200,000 contrition payment which they were ordered to pay by the Fair Work Ombudsman. While unions were outraged by the relatively small penalty, the Ombudsman stated that they took the Made Group’s financial position into account when determining the payment amount. Despite attempts at a major rebranding of high-profile venues such as The Press Club in Melbourne, the Made Group has experienced a decline in trade since the scandal, with the Australian public being left with a ‘bad taste in their mouth’ states Secretary of the Victorian Trades Hall Council, Luke Hilakari.
While the administrators expect that all creditors and staff should receive full payment of any debts, they are also investigating alternative operators for some of the poorly performing venues, and are engaging with other stake holders to realise the Group’s assets.
You can read more about other hospitality business who’ve entered voluntary administration here.
Managing parental rights and responsibilities is a crucial concern for separating parents. Following separation, parents are presented with different possible ways to record agreements regarding the parenting arrangements for their child or children. We are often asked whether it is best to enter into a Consent Order or a Parenting Plan.
In order to determine which option is most suitable for your circumstances, it is important to understand the key elements of both agreements.
Consent Orders are a legally binding document that is enforceable through the Courts if a parent fails to uphold the terms of the order This way can result in penalties and consequences on then on complying parent.
Consent Orders are a common way to record a parental agreement. They cover a variety of matters including; who the child lives with, time spent with the other parent, arrangements for special days, changeovers and communication, permissions to travel overseas with the child, and/or the exchange of personal information about a child between parents.
Consent Orders are filed with the Court and must be approved by the Court. Generally we suggest that if you have concerns about compliance with your agreement or poor communication and cooperation with your former spouse, that Consent Orders may be a preferable way to record your agreement.
A Parenting Plan is a signed agreement between separated parents which outlines arrangements for the care of your children. This includes matters that are contained in Consent Orders. Parents may also use this document to record other agreements or statements of intent regarding their co-parenting generally or plans in relation to the financial support of their children post separation.
A Parenting Plan is not legally enforceable in a court. However if you have a Parenting Plan and one party subsequently commences proceedings for Parenting Orders, the Court must have regard to the Parenting Plan. Similarly, a Parenting Plan that records agreements about the financial care of children post separation is not binding, but can be used as evidence with the Child Support Agency if there is a disagreement about expenses for your children and if they should be treated as a non-agency payment. Parenting Plans are a flexible and simple way to record parenting agreements for children. They can also be used to record agreements regarding varying an existing parenting Order and in those circumstances possibly used as a defense in a contravention hearing.
We often recommend a Parenting Plan if you have a cooperative post separation co-parenting relationship and foresee the need to change your agreement in the future to accommodate changes in the needs of your children. The non-binding nature of the document also means that the plans are simple to refine if situations change.
When deciding on whether you should implement a Consent Order or Parenting Plan, be sure about your decision and seek professional legal advice from a family law specialist to get the most out of your choice.
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On 28 January 2020 a new practice Direction was issued by the Chief Justice of the Family Court of Australia / Chief Judge of the Federal Circuit Court of Australia setting out 10 Core Principles to underpin Family Law matters in those Courts. These are in summary:
While these issues have always been a feature of litigation in the Family Law jurisdiction, the Family Law Courts appear to be taking a direct approach to com negative views about the delays and inconsistencies some face as a Family Law litigant.
An important function of the Courts is to determine which documents can and cannot be used as evidence in a proceeding. An important class of documents that cannot be used are those protected by legal professional privilege. The recent Federal Court decision of Carna Group Pty Ltd v The Griffin Coal Mining Company (No.2) [2019] FCA 2209 has clarified the requirements of establishing a claim for legal professional privilege, especially in circumstances where the parties involved in the creation of an allegedly privileged document are not able to give evidence.
Background
This case concerns an action against The Griffin Coal Mining Company (Griffin Coal) by the liquidators of Carna Group Pty Ltd (In Liquidation) (Carna) for breach of contract, and misleading and deceptive conduct. Griffin Coal made an application to access documents and correspondence between Carna and a Mr Nardizzi. The liquidators of Carna alleged that the documents were brought into existence for the dominant purpose of obtaining legal advice as Mr Nardizzi had been providing Carna with legal advice. Carna refused to give Griffin Coal access to the documents on the ground of legal professional privilege.
The main issue in this case was that the liquidators had very little evidence to support their claim of privilege. There was no letter of engagement between Carna and Mr Nardizzi, and all the people who might give evidence to clarify Mr Nardizzi’s role were either adversaries to, or distanced from, the liquidators. The only documents supporting the claim were items of correspondence that referred to Mr Nardizzi as Carna’s lawyer.
Griffin Coal challenged the claim for privilege on the grounds that there was insufficient evidence to establish the grounds of the claim.
Decision
In His Honour’s decision, McKerracher J discussed a number of authorities that considered the nature of the evidence required to establish a claim for legal professional privilege (such as Hancock v Rinehart, Hastie Group Ltd (in liq) v Moore, and McKenzie v Cash Converters International Ltd). From these authorities, His Honour highlighted the fundamental principle that the grounds to claim privilege must be proven by admissible evidence. He stated:
“[a] mere assertion [that] the documents are privileged can never suffice because it is an inadmissible assertion of law… a claimant must set out the facts from which the Court can see that the assertion is rightly made.”
Griffin Coal argued that Carna did not meet this requirement as there was no admissible evidence to support the assertion that the documents were prepared by Mr Nardizzi, acting as Carna’s lawyer, for the dominant purpose of providing legal advice. Griffin Coal also argued that Carna’s failure to call witnesses such as Mr Nardizzi or the former directors of Carna to give evidence about the relationship left it open to the Court’s discretion to draw an inference that such evidence would not have assisted Carna’s claim (see Jones v Dunkel (1959) 101 CLR 298).
McKerracher J firmly rejected Griffin Coal’s arguments, stating that “… there are a number of ways [establishing the necessary facts] can be done and regard should be had to all the circumstances in determining the correctness of the assertion [of legal privilege]”. His Honour confirmed that admissible hearsay could be considered in support of such a claim, and that the circumstances of the case (including the liquidation of the company) were relevant factors in the assessment of a privilege claim.
In the circumstances of the company’s liquidation, the directors were not able to give evidence to support the claim of privilege, and as there was no other evidence or reason to believe otherwise, the Court accepted that the correspondence was enough to justify Mr Nardizzi’s role as legal advisor and Carna’s claim for professional privilege.
Conclusion
Key takeaways from this case are that the factual circumstances of the liquidation of a company will be relevant when assessing evidence required to establish a claim for legal professional privilege. Where there is no other evidence to rely on, admissible hearsay evidence may be sufficient to establish a claim for privilege. As in all such cases, great care must be taken to avoid a loss of privilege over protected documents.
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There is a common misconception surrounding parental rights in family disputes that many people who are unfamiliar with the family law system often fall prey to. Parents often assume they have rights when it comes to regulating how much time they spend with their child, as well as decisions involving their child’s health, education and religion. However, this couldn’t be further from the truth.
According to the Family Law Act 1975 (Cth), parents don’t possess any dominant rights when it comes to family law disputes, whereas the rights of the child are the key factor that are taken into consideration in any proceeding. The parents also bear responsibility over the wellbeing of the child and must conform to obligations such as:
Children on the other hand are granted numerous rights that are aimed at protecting their psychological and emotional wellbeing during what is often a very troubling ordeal. They have the right to feel loved and cared for, to feel a sense of security and comfort with their parents and in their home. Ensuring these rights for a child in the midst of a messy separation can be quite challenging for both the Court and the parents’ solicitors. While all good family law practitioners will advise parents to focus on the children, a parents’ sense of good judgement can be clouded by fear and resentment, which can result in an uncomfortable situation for their child.
This is why taking a step back, examining the situation, and attempting to empathise with the children is an important process to go through. Parents must consider the psychological and emotional impact that their behaviour towards one another can have on their children. At almost any age children can comprehend that their parents are supposed to love each other, and watching them in hostile situations can be both confusing and distressing. The behavior parent’s display in front of their children strongly contributes to a child’s development of their emotional and mental capacity. This is why family law places such responsibilities on the way parents can conduct themselves, and why adhering to their legislative burden is so crucial.
Family and parental disputes can be confronting. Although the idea of seeking help may be difficult, taking action early on and getting help from a family law specialist and/or mental health professional (such as a psychologist or councilor) can have a profound positive effect on how a dispute is carried out and the results it may have.
In circumstances where business agreements between companies cross international (or even state) borders, there are issues that can arise from any dispute that are often not thought about in times of growth and prosperity. In the event of a dispute, companies are often placed in a position where they rely upon proceedings being commenced in their local jurisdiction. Otherwise the proceedings, and sometimes even the Company itself, may not be viable.
Such a situation was heard by the Court of Appeal of the Supreme Court of Western Australia in the matter of Bombardier Inc (Bombardier) v Avwest Aircraft Pty Ltd (Avwest) [2020] WASCA 2.
Bombardier and Avwest engaged in extensive commercial dealings between 2009 and 2015, until the relationship between them broke down due to an alleged breach of contract. Bombardier is listed on the Toronto stock exchange and its head office is in Quebec Canada, while Avwest has its registered office in Perth, Australia.
Avwest commenced proceedings against Bombardier in the Supreme Court of Western Australia. Avwest was required to seek leave to issue a writ of summons against Bombardier and leave to serve the writ outside Australia. Bombardier contested the application for leave and subsequently sought to appeal the decision to grant leave.
Bombardier v Avwest reaffirmed the tests used by the High Court of Australia in the matters of:
in relation to the question as to whether or not the Court in which leave is sought is a clearly inappropriate forum.
Whether or not a Court is a clearly inappropriate forum turns on:
amongst other factors, as all circumstances of the matter are relevant to the determination.
In this matter, the Court of Appeal was eager to outline that the submitted argument that another Court may be a more appropriate forum has little bearing on whether the Court in which the application for leave was filed is a clearly inappropriate forum.
Ultimately in this matter, the Court dismissed Bombardier’s appeal, as the Court was critical of Bombardier’s reliance on Canadian and American Courts and legal principles being generally better than the Supreme Court of Western Australia and Australia’s legal principles.
The practical takeaway from this matter should be to seek legal advice before entering into cross-border contracts. Failure to do so could result in any disputes that arise being undertaken in disadvantageous and inconvenient jurisdictions.