Third Party in strife … Mile long delays for medical assessments … NSW judicial officer fires back with lengthy screed … Improper process … Parliamentary committee spanks judge … Failure to recuse … Theodora reports
The Australian Lawyers Alliance for some time has complained about mile long delays at the Personal Injury Commission, sparking the commission’s president Judge Gerard Phillips to issue the ALA with a rambling defence.
The upshot was that the Standing Committee on Law and Justice wrote to Phillips to point out its concern about responding directly to a witness rather than through the committee itself.
“Such an approach could be perceived as an attempt to intimidate a witness or influence a witness in making future or further contributions to a parliamentary inquiry.”
The committee on law & justice has been combing through the interstices of the scheme, giving attention to submissions about the Personal Injury Commission’s delays in resolving motor accident disputes.
The Australian Lawyers Alliance says accident victims are waiting 12 months and more for medical assessments of their injuries.
The ALA’s nine page submission to the review laid the problems squarely in two paragraphs at the feet of the Personal Injury Commission:
“Fundamental to the motor accidents scheme is the efficient operation of the PIC. If the PIC is not producing timely medical and other assessments, then the motor accidents scheme grinds to an entirely unsatisfactory halt.
The PIC is beset with delays. The PIC largely attributes those delays to the pandemic. The ALA is concerned that there are more widespread reasons for delay at the PIC and that the PIC is not fully addressing all of the causes of delay.”
Further, the lawyers’ alliance wants external management consultants to review the PIC’s operations, including its computer procurement “issues”, staff turnover, the drop-out rate of medical experts and “a number of other issues that potentially affect PIC’s efficiency and performance”.
PIC president Phillips was promptly on his hind legs with a 21 page response to the NSW ALA president Joshua Dale – a partner at Carroll & O’Dea, the very firm from just Gerard Phillips sprung.
Phillips’ letter papered the town, being copied to the Minister for Customer Service, the shadow minister for industrial relations, the shadow minister for customer service, the chair of the parliamentary committee, the Law Society, the bar, the CEO of the State Insurance Regulatory Authority, the CEO of icare, the Independent Review Officer and Uncle Tom Cobley.
In it the judge strenuously denied that his commission was operating inefficiently, furthermore the slow resolution of cases related to medical examinations is down to the Covid pandemic between 2020 and 2022.
For periods throughout 2020 all in-person medical appointments were suspended by the commission, largely due to Covid and people not turning up.
For the first six months of 2022 in the motor accident division 50 percent of the 3,600 medical appointments that were booked did not proceed.
Phillips said that the net result is a backlog in the commission’s medical assessment operations.
The commission had a “defined” backlog of 4,667 motor accident applications at January 2022. Phillips claims that this has been reduced by 82 percent – but that does not include the filings made throughout 2022 and so far for this quarter in 2023.
He aims to get the long tail of the backlog sorted by the third quarter of this year – if only people would turn up to their medical examinations.
The PIC president tells Dale that much of the ALA’s submission is speculative.
“My working assumption is that the origin of these assertions is a poor experience in an individual matter or rumours and anecdotes which have been related to you.”
A week later the NSW ALA sent a 20 page letter to the parliamentary standing committee, saying:
“In the experience of the ALA is it very unusual that a tribunal head and serving judicial officer would respond to a 12 line submission with a 14 page letter (plus annexures) … [and he] would elect to distribute such a letter so widely and publicly.”
The parliamentary law and justice committee resolved that its chairman write to Judge Phillips to:
Judge Phillips has been given a right of reply. By-the-by, the judge is the brother of Jeffrey Phillips SC, the famous advocate in favour of royal finery for NSW barristers.
Standing Committee on Law and Justice
Standing Committee on Law and Justice review of compulsory TPI
Australian Lawyers Alliance submission
Correspondence from Judge Phillips
Australian Lawyers Alliance follow-up submission
At the time he was both president of the Personal Injury Commission and a District Court judge – in fact this case was his first foray on the Dizzo bench and it involved federal jurisdictional issues.
The first plaintiff’s whole person impairment application had been dismissed in March 2022 by PIC’s head of the motor accident division.
Now, Judge Phillips was being asked to determine the correctness of a decision made by the commission.
In addition, he had expressed views on PIC’s website about one of the questions before the court.
He rejected the application on both actual and apprehended bias grounds, effectively clearing the way for him to sit in judgment on the body he runs.
Subsequently, the State of NSW intervened and put on submissions that Judge Phillips should not hear the case. At that stage he decided to withdraw.
Worldon v Transport Accident Commission of Victoria; Islam v Transport Accident Commission of NSW