The Personal Injury Commission has no power to exercise federal jurisdiction within the meaning of ss 75 and 76 of the Commonwealth Constitution. But when does federal jurisdiction arise? Does a minor injury dispute between a resident of Queensland and the NSW Nominal Defendant involve an exercise of federal jurisdiction? These questions were addressed by the District Court in Ritchie v the Nominal Defendant.
Author: Peter Hunt
Judgment date: 5th November 2021
Citation:Ritchie v Nominal Defendant
The claimant, a Queensland resident, was injured in a motor accident in NSW whilst temporarily in that State for work. He brought a claim against the Nominal Defendant because the vehicle at fault was unidentified. A dispute arose between the claimant and the Nominal Defendant regarding whether the claimant only sustained minor injuries.
The claimant made a “compensation matter” application under s 26 of the Personal Injury Commission Act 2020 for leave to bring substituted proceedings before the District Court.
There was no dispute that:
The central issue was whether SIRA was “the State” for the purpose of s 75(iv) of the Commonwealth Constitution, which provides (emphasis added):
In all matters…(iv) between States, or between residents of different States, or between a State and a resident of another State… the High Court shall have original jurisdiction.
If SIRA was “the State”, then the minor injury dispute was between a resident of Queensland and the State of NSW – and involves an exercise of federal jurisdiction – in which case the PIC has no jurisdiction.
If SIRA was not “the State”, then the minor injury dispute was between a resident of Queensland and a non-State entity – and no exercise of federal jurisdiction arises – in which case the PIC does have jurisdiction.
In (very) general terms:
The application came before District Court Judge Susan Gibb and her Honour delivered Judgment on 5 November 2021.
Her Honour concluded that SIRA was “the State” for the purpose of s 75(iv) of the Constitution. As such, the PIC did not have jurisdiction to assess the minor injury dispute (or any other dispute arising in the claim).
In summary, her Honour reasoned:
Her Honour stated her overall conclusion, on page 21 of her Judgment, as follows:
“Despite the user pays structure applied to the collection and management of the compulsory “contributions” under the statutory structure, the structure, function and ownership and management of the State Insurance Regulatory Authority and the purposes it is required to pursue reveal its integral relationship with the State of NSW. Putting aside that a compulsory contribution is a tax by another name (albeit one focussed specifically), the State Insurance Regulatory Authority is effectively wholly owned and controlled by the State of NSW and set upon functions that are exclusively governmental in nature (and in large part regulatory).”
Her Honour proceeded to remit the minor injury dispute (and any review rights) to the PIC for assessment in accordance with its usual practice and procedure.
Once the Commission has issued a minor injury certificate, the parties were directed to file a motion in the District Court to adopt (whether with or without variation), or refuse to adopt, the Commission’s determination.
The immediate consequence of her Honour’s reasoning is that the PIC has no jurisdiction to assess any medical dispute, merit review matter, miscellaneous assessment matter or damages dispute between an interstate resident and the Nominal Defendant.
Each time such a dispute arises, the parties must seek leave in the District Court pursuant to s 26(3) of the PIC Act for the “compensation matter” to be determined by the Court in substituted proceedings.
Once leave is granted, the Court may remit its functions to the PIC to perform an assessment.
The Court retains the power, however, to subsequently either accept, reject or vary the findings made by the PIC.
In other words, the District Court refers the dispute to the Commission much like a Court referral to a neutral referee in a building case. The ultimate jurisdiction, however, remains with the District Court. The Commission’s Certificate will have no lawful effect until it is adopted by the Court.
Scope of Federal Jurisdiction
The Judgment in this matter clarifies what type of CTP disputes will involve an exercise of federal jurisdiction.
Looking at the issue of federal jurisdiction wholistically, we make the following general observations:
|Any claim against a NSW licenced CTP insurer, irrespective of residence.
|A statutory benefits or damages claim against a NSW licenced CTP insurer – whether by a NSW resident or an interstate resident – involves no exercise of federal jurisdiction because each of the NSW CTP insurers is a corporation and, therefore, neither a resident of any place or “the State”.|
|Statutory benefit or common law claims by interstate residents injured by unidentified or uninsured vehicles.||Where an interstate claimant makes a claim against the Nominal Defendant, an exercise of federal jurisdiction arises because the dispute is between a resident of another State and the State of NSW (see Ritchie v Nominal Defendant).|
|Statutory benefit claims by claimants injured by interstate vehicles.||Section 3.2(6)
Any statutory benefits claim involving an interstate vehicle is made against the Nominal Defendant, by virtue of s 3.2(6) of MAIA.
Where the claimant is a NSW resident, no exercise of federal jurisdiction arises because the dispute is between a NSW resident and the State of NSW.
Where the claimant is an interstate resident, the dispute would involve an exercise of federal jurisdiction because the dispute is between a resident of another State and the State of NSW (see Ritchie v Nominal Defendant).
|Common law claims against interstate insurers irrespective of residence||Victoria | Western Australia | Tasmania
The Victorian Transport Accident Commission (TAC), the Western Australian Insurance Commission (WAIC) and the Tasmanian Motor Accident Insurance Board (MAIB) are State-owned insurers.
Any common law claim against those insurers involves an exercise of federal jurisdiction because they involve a dispute between a resident of one State and “the State” of another State (unless the Claimant resides in the same State as the insurer).
Queensland | South Australia | Australian Capital Territory | Northern Territory
These States operate private CTP schemes. As such, no federal jurisdiction arises, irrespective of residence, because the CTP insurer is neither a resident of any place or “the State”.
|Interstate residents injured in NSW by interstate vehicles of their own State||Statutory Benefit Claims
Any statutory benefits claim involving an interstate vehicle is made against the Nominal Defendant, by virtue of s 3.2(6) of MAIA. As such, any statutory benefits claim by an interstate resident involves an exercise of federal jurisdiction – irrespective of where the vehicle most at fault is registered – because the dispute is between the resident of one State and the State of NSW.
Common Law Claims
Where an interstate resident is injured in NSW by a vehicle registered in their own State, no issue of federal jurisdiction will arise, irrespective of whether the insurer is State-owned or privately owned.
The following table summarise when a CTP dispute will involve the resident of one State and “the State”, within the meaning of s 75(iv) of the Commonwealth Constitution:
|Residence||Type of Dispute||Circumstances|
|NSW||Damages only||Claim against an interstate State-owned insurer
(Victoria, Western Australia and Tasmania)
|Interstate||Statutory Benefits only||Claim against the Nominal Defendant where the most-at-fault vehicle was an interstate vehicle.|
|Interstate||Statutory Benefits and Damages||Claim against the Nominal Defendant where the offending vehicle is unidentified|
|Interstate||Statutory Benefits and Damages||Claim against the Nominal Defendant where the offending vehicle is uninsured|
No federal jurisdiction arises, however, in the following disputes:
|Resident||Type of Dispute||Circumstances|
|NSW||Statutory Benefits and Damages||Claim against any licenced NSW CTP Insurer|
|NSW||Damages only||Claim against any private interstate insurer
(ACT, NT, Queensland and South Australia)
|Interstate||Statutory Benefits and Damages||Claim against any licenced NSW CTP Insurer|
|Interstate||Damages only||Claim against any private interstate insurer (corporate insurers in ACT, NT, QLD, SA).
Claim against a State-owned insurer (VIC, WA, TAS) were the Claimant lives in the same State.
Practice and Procedure
The parties must make an application to the District Court, under s 26 of the PIC Act, in every dispute involving an exercise of federal jurisdiction.
It is worth remembering that multiple disputes may arise in each federally impacted claim. There may be multiple medical disputes, merit review matters, miscellaneous assessment matters and a damages dispute.
Whether a separate Summons is required for each dispute within each claim – or whether a single Summons can accommodate all disputes within a claim – is not yet clear.
Each dispute in a federally impacted claim, however, must ultimately be brought back before the Court to adopt, reject or vary the Commission’s determination.
The costs of a compensation matter application under s 26 of the PIC Act are regulated by Clause 6, Schedule 1 to the Motor Accident Regulation 2017 (subject to indexation, annually, on 1 October):
|Court proceedings in relation to “compensation matter application”||$1,068.90|
|Conference ‘directly related to an assessment of a claim for damages or a court hearing’||$320.70 per hour|
Where leave is granted by the District Court pursuant to s 26 of the PIC Act, costs of the subsequent substituted proceedings become unregulated, by virtue of clauses 11, 12 and 13 of the Personal Injury Commission Regulation 2020.
In June 2023, a Canadian Court in South-West Terminal Ltd v Achter Land and Cattle Ltd, 2023 SKKB 116, held that the "thumbs-up" emoji carried enough weight to constitute acceptance of contractual terms, analogous to that of a "signature", to establish a legally binding contract. Facts This case involved a contractual dispute between two parties namely South-West Terminal ("SWT"), a grain and crop inputs company; and Achter Land & Cattle Ltd ("ALC"), a farming corporation. SWT sought to purchase several tonnes of flax at a price of $17 per bushel, and in March 2021, Mr Mickleborough, SWT's Farm Marketing Representative, sent a "blast" text message to several sellers indicating this intention. Following this text message, Mr Mickleborough spoke with Mr Achter, owner of ALC, whereby both parties verbally agreed by phone that ALC would supply 86 metric tonnes of flax to SWT at a price of $17 per bushel, in November 2021. After the phone call, Mr Mickleborough applied his ink signature to the contract, took a photo of it on his mobile phone and texted it to Mr Archter with the text message, "please confirm flax contract". Mr Archter responded by texting back a "thumbs-up" emoji, but ultimately did not deliver the 87 metric tonnes of flax as agreed. Issues The parties did not dispute the facts, but rather, "disagreed as to whether there was a formal meeting of the minds" and intention to enter into a legally binding agreement. The primary issue that the Court was tasked with deciding was whether Mr Achter's use of the thumbs-up emoji carried the same weight as a signature to signify acceptance of the terms of the alleged contract. Mr Mickleborough put forward the argument that the emoji sent by Mr Achter conveyed acceptance of the terms of the agreement, however Mr Achter disagreed arguing that his use of the emoji was his way of confirming receipt of the text message. By way of affidavit, Mr Achter stated "I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract"; and "I did not have time to review the Flax agreement and merely wanted to indicate that I did receive his text message." Consensus Ad Idem In deciding this issue, the Court needed to determine whether there had been a "formal meeting of the minds". At paragraph , Justice Keene considered the reasonable bystander test: " The court is to look at “how each party’s conduct would appear to a reasonable person in the position of the other party” (Aga at para 35). The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract (Aga at para 36). The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound (Aga at para 37)." Justice Keene considered several factors including: The nature of the business relationship, notably that Mr Achter had a long-standing business relationship with SWT going back to at least 2015 when Mr Mickleborough started with SWT; and The consistency in the manner by which the parties conducted their business by way of verbal conversation either in person or over the phone to come to an agreement on price and volume of grain, which would be followed by Mr Mickleborough drafting a contract and sending it to Mr Achter. Mr Mickleborough stated, "I have done approximately fifteen to twenty contracts with Achter"; and The fact that the parties had both clearly understood responses by Mr Achter such as "looks good", "ok" or "yup" to mean confirmation of the contract and "not a mere acknowledgment of the receipt of the contract" by Mr Achter. Judgment At paragraph , Keene J said: "I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions." The court satisfied that the use of the thumbs-up emoji paralleled the prior abbreviated texts that the parties had used to confirm agreement ("looks good", "yup" and "ok"). This approach had become the established way the parties conducted their business relationship. Significance of the Thumbs-Up Emoji Justice Keene acknowledged the significance of a thumbs-up emoji as something analogous to a signature at paragraph : "This court readily acknowledges that a thumbs-up emoji is a non-traditional means to "sign" a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a "signature" – to identify the signator… and… to convey Achter's acceptance of the flax contract." In support of this, Justice Keene cited the dictionary.com definition of the thumbs-up emoji: "used to express assent, approval or encouragement in digital communications, especially in western cultures", confirming that the thumbs-up emoji is an "action in an electronic form" that can be used to allow express acceptance as contemplated under the Canadian Electronic Information and Documents Act 2000. Justice Keene dismissed the concerns raised by the defence that accepting the thumbs up emoji as a sign of agreement would "open the flood gates" to new interpretations of other emojis, such as the 'fist bump' and 'handshake'. Significantly, the Court held, "I agree this case is novel (at least in Skatchewan), but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage." Ultimately the Court found in favour of SWT, holding that there was a valid contract between the parties and that the defendant breached by failing to deliver the flax. Keene J made a judgment against ALC for damages in the amount of $82,200.21 payable to SWT plus interest. What does this mean for Australia? This is a Canadian decision meaning that it is not precedent in Australia. However, an Australian court is well within its rights to consider this judgment when dealing with matters that come before it with similar circumstances. This judgment is a reminder that the common law of contract has and will continue to evolve to meet the everchanging realities and challenges of our day-to-day lives. As time has progressed, we have seen the courts transition from sole acceptance of the traditional "wet ink" signature, to electronic signatures. Electronic signatures are legally recognised in Australia and are provided for by the Electronic Transactions Act 1999 and the Electronic Transactions Regulations 2020. Companies are also now able to execute certain documents via electronic means under s 127 of the Corporations Act. We have also seen the rise of electronic platforms such as "DocuSign" used in commercial relationships to facilitate the efficient signing of contracts. Furthermore, this case highlights how courts will interpret the element of "intention" when determining whether a valid contract has been formed, confirming the long-standing principle that it is to be assessed objectively from the perspective of a reasonable and objective bystander who is aware of all the relevant facts. Overall, this is an interesting development for parties engaging in commerce via electronic means and an important reminder to all to be conscious of the fact that contracts have the potential to be agreed to by use of an emoji in today's digital age.
The McCabes Government team are pleased to have assisted Venues NSW in successfully overturning a District Court decision holding it liable in negligence for injuries sustained by a patron who slipped and fell down a set of steps at a sports stadium; Venues NSW v Kane  NSWCA 192 Principles The NSW Court of Appeal has reaffirmed the principles regarding the interpretation of the matters to be considered under sections5B of the Civil Liability Act 2002 (NSW). There is no obligation in negligence for an occupier to ensure that handrails are applied to all sets of steps in its premises. An occupier will not automatically be liable in negligence if its premises are not compliant with the Building Code of Australia (BCA). Background The plaintiff commenced proceedings in the District Court of NSW against Venues NSW (VNSW) alleging she suffered injuries when she fell down a set of steps at McDonald Jones Stadium in Newcastle on 6 July 2019. The plaintiff attended the Stadium with her husband and friend to watch an NRL rugby league match. It was raining heavily on the day. The plaintiff alleged she slipped and fell while descending a stepped aisle which comprised of concrete steps between rows of seating. The plaintiff sued VNSW in negligence alleging the stepped aisle constituted a "stairwell" under the BCA and therefore ought to have had a handrail. The plaintiff also alleged that the chamfered edge of the steps exceeded the allowed tolerance of 5mm. The Decision at Trial In finding in favour of the plaintiff, Norton DCJ found that: the steps constituted a "stairwell" and therefore were in breach of the BCA due to the absence of a handrail and the presence of a chamfered edge exceeding 5mm in length. even if handrails were not required, the use of them would have been good and reasonable practice given the stadium was open during periods of darkness, inclement weather, and used by a persons of varying levels of physical agility. VNSW ought to have arranged a risk assessment of the entire stadium, particularly the areas which provided access along stepped surfaces. installation of a handrail (or building stairs with the required chamfered edge) would not impose a serious burden on VNSW, even if required on other similar steps. Issues on Appeal VNSW appealed the decision of Norton DCJ. The primary challenge was to the trial judge's finding that VNSW was in breach of its duty of care in failing to install a handrail. In addition, VNSW challenged the findings that the steps met the definition of a 'stairwell' under the BCA as well as the trial judge's assessment of damages. Decision on Appeal The Court of Appeal found that primary judge's finding of breach of duty on the part of VNSW could not stand for multiple reasons, including that it proceeded on an erroneous construction of s5B of the Civil Liability Act 2002 and the obvious nature of the danger presented by the steps. As to the determination of breach of duty, the Court stressed that the trial judge was wrong to proceed on the basis that the Court simply has regard to each of the seven matters raised in ss 5B and 5C of the CLA and then express a conclusion as to breach. Instead, the Court emphasised that s 5B(1)(c) is a gateway, such that a plaintiff who fails to satisfy that provision cannot succeed, with the matters raised in s 5B(2) being mandatory considerations to be borne in mind when determining s 5B(1)(c). Ultimately, regarding the primary question of breach of duty, the Court found that: The stadium contained hazards which were utterly familiar and obvious to any spectator, namely, steps which needed to be navigated to get to and to leave from the tiered seating. While the trial judge considered the mandatory requirements required by s5B(2) of the CLA, those matters are not exhaustive and the trial judge failed to pay proper to attention to the fact that: the stadium had been certified as BCA compliant eight years before the incident; there was no evidence of previous falls resulting in injury despite the stairs being used by millions of spectators over the previous eight years; and the horizontal surfaces of the steps were highly slip resistant when wet. In light of the above, the Court of Appeal did not accept a reasonable person in the position of VNSW would not have installed a handrail along the stepped aisle. The burden of taking the complained of precautions includes to address similar risks of harm throughout the stadium, i.e. installing handrails on the other stepped aisles. This was a mandatory consideration under s5C(a) which was not properly taken into account. As to the question of BCA compliance, the Court of Appeal did not consider it necessary to make a firm conclusion of this issue given it did not find a breach of duty. The Court did however indicated it did not consider the stepped aisle would constitute a "stairway" under the BCA. The Court of Appeal also found that there was nothing in the trial judge's reasons explicitly connecting the risk assessment she considered VNSW ought to have carried out, with the installation of handrails on any of the aisles in the stadium and therefore could not lead to any findings regarding breach or causation. As to quantum, the Court of Appeal accepted that the trial judge erred in awarding the plaintiff a "buffer" of $10,000 for past economic loss in circumstances where there was no evidence of any loss of income. The Court of Appeal set aside the orders of the District Court and entered judgment for VNSW with costs. Why this case is important? The case confirms there is no obligation in negligence for owners and operators of public or private venues in NSW to have a handrail on every set of steps. It is also a welcome affirmation of the principles surrounding the assessment of breach of duty under s 5B and s 5C of the CLA, particularly in assessing whether precautions are required to be taken in response to hazards which are familiar and obvious to a reasonable person.
The recent decision in New Aim Pty Ltd v Leung  FCAFC 67 (New Aim) has provided some useful guidance in relation to briefing experts in litigation.