Motor Accidents Compensation Regulation 2020

This Regulation is the Motor Accidents Compensation Regulation 2020.

This Regulation commences on 1 September 2020 and is required to be published on the NSW legislation website.

Note.

This Regulation replaces the Motor Accidents Compensation Regulation 2015, which is repealed on 1 September 2020 by section 10(2) of the Subordinate Legislation Act 1989.

In this Regulation—

costs breakdown means a document that sets out the following, in a form approved by the Authority—

the total amount paid by an insurer in finalising a claim for damages,

all deductions, including all legal costs and disbursements, in relation to the claim,

the final amount paid to the claimant.

health practitioner has the same meaning as in the Health Practitioner Regulation National Law (NSW).

monetary unit or MU—see Schedule 3.

the Act means the Motor Accidents Compensation Act 1999.

Note.

The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.

Notes included in this Regulation do not form part of this Regulation.

Costs referred to in this Part, Division 4 excepted, do not include any of the following—

fees for accident investigators’ reports or accident reconstruction reports,

fees for accountants’ reports,

fees for reports from health practitioners, other than medical practitioners,

fees for other professional reports relating to treatment or rehabilitation, for example, architects’ reports concerning house modifications,

fees for interpreter or translation services,

court fees,

travel costs and expenses of the claimant for attendance at the Commission or a court,

witness expenses at the Commission or a court.

This Division is made under section 149 of the Act and applies to the following costs payable on a party and party basis, on a practitioner and client basis or on any other basis—

legal costs,

costs for matters that are not legal services but are related to proceedings in a motor accidents matter.

Note.

Section 149(2) of the Act provides that a legal practitioner is not entitled to be paid or recover for a legal service or other matter an amount that exceeds any maximum costs fixed for the service or matter by regulations under section 149.

This Division does not affect costs recovered before 17 December 1999 or for which a bill of costs was issued before that day.

Note.

Section 147(2) of the Act provides that expressions in Chapter 6 (Costs) of the Act (and consequently expressions used in this Part) have the same meaning as they have when used in relation to legal costs in the legal profession legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014).

Except as otherwise provided by this Part, the costs set out in Schedule 1 are the maximum costs for—

legal services provided by an Australian legal practitioner to a claimant or to an insurer in a motor accidents matter, and

matters that are not legal services but are related to a motor accidents matter.

If there is a change in the Australian legal practitioner retained by a claimant or insurer in a motor accidents matter, the relevant costs are to be apportioned between the Australian legal practitioners concerned.

If there is a dispute as to the apportionment, either Australian legal practitioner concerned, or the client claimant or insurer concerned, may refer the dispute to the Commission for determination.

Subclause (3) does not apply if the dispute arose in a matter in which, under section 92 of the Act, the claim is exempt from assessment.

An Australian legal practitioner has the same right of appeal against a determination made under subclause (3) as the practitioner would have under section 205 of the Legal Profession Uniform Law (NSW) if the determination were a determination of a costs assessor under Division 7 of Part 4.3 of that Law.

The maximum costs set out in Schedule 1 do not apply in respect of a matter in which, under section 92 of the Act, the claim is exempt from assessment.

An exclusion under this clause in respect of a matter involving a claim referred to in section 92(1)(b) of the Act extends to any costs incurred before the matter became exempt.

Schedule 1 does not apply to costs in a motor accidents matter to the extent that they are payable on a practitioner and client basis if—

an Australian legal practitioner makes a disclosure under Division 3 of Part 4.3 of the Legal Profession Uniform Law (NSW) to a party to the matter with respect to the costs, and

the practitioner enters into a costs agreement with that party as to those costs in accordance with Division 4 of that Part, and

before entering into the costs agreement, the practitioner advises the party in a separate written document that, even if costs are awarded in favour of the party, the party will be liable to pay the amount of the costs provided for in the costs agreement that exceeds the amount that would be payable under the Act in the absence of a costs agreement, and

where the party is a claimant—the practitioner provides to the Authority, at the time and in the way approved by the Authority, a costs breakdown in relation to the claim when the claim is finalised, and

the amount paid in resolution of the claim by way of settlement or an award of damages is more than $50,000.

However, the maximum costs recoverable in the matter on a practitioner and client basis are fixed at the amount calculated by subtracting $50,000 from the amount paid in resolution of the claim.

For the purposes of subclause (2), the amount paid in resolution of a claim includes the amount (if any) payable in connection with the claim on a party and party basis.

The maximum costs specified in subclause (2) include all legal services provided in the course of the claim during the period commencing on the acceptance of the retainer and ending on the resolution of the claim.

A costs agreement referred to in subclause (1)(b) does not include a conditional costs agreement, within the meaning of Part 4.3 of the Legal Profession Uniform Law (NSW), that provides for the payment of a premium on the successful outcome of the matter concerned.

Subclause (1)(e) and (2)–(4) do not apply if the party is an insurer.

This clause does not apply to costs involving a compensation matter application, as referred to in Schedule 1, clause 2A.

This clause applies to a claim if—

a certificate has been issued under section 92 of the Act to the effect that the claim is exempt from assessment under Part 4.4 of the Act, and

the exemption is solely on the ground that the claimant is under the age of 18 years on the date on which the certificate is issued, and

the amount paid in resolution of the claim is not more than $50,000.

The maximum costs for legal services provided to a claimant in connection with a claim to which this clause applies are as follows, unless otherwise ordered by the court—

except as provided by paragraph (b)—$5,000,

if the amount paid in resolution of the claim is more than $25,000 (but not more than $50,000) and no associated person has made a claim in respect of the motor accident concerned—$10,000.

The maximum costs specified in subclause (2) are inclusive of all legal services provided in the course of the claim during the period commencing on the acceptance of the retainer and ending on the resolution of the claim.

If there is a change in the Australian legal practitioner retained by a claimant or insurer in connection with a claim to which this clause applies, the relevant costs are to be apportioned between the Australian legal practitioners concerned.

Any dispute as to the apportionment may be determined by the court or referred by either Australian legal practitioner concerned, or the client or insurer concerned, to the Commission for determination.

In this clause—

associated person, in relation to a claimant who has made a claim in respect of a motor accident, means any person who—

at the time of the accident, was an occupant of the same motor vehicle as the claimant, and

has retained to act on the person’s behalf in respect of any claim arising from the motor accident the same law practice as the claimant has retained in respect of the claimant’s claim.

resolution means any final resolution of a claim, whether by way of settlement, an award of damages or otherwise.

This Division is made under section 150 of the Act and applies in respect of fees for the provision of medical reports, and appearances as witnesses, by medical practitioners.

Note.

Section 150(2) of the Act provides that a medical practitioner is not entitled to be paid or recover any fee for providing a service that exceeds any maximum fee fixed under section 150 for the provision of the service.

The maximum fees for providing a service specified in Schedule 2 in relation to any motor accident are the fees set out in that Schedule for that service, except as otherwise provided by this Part.

A reference in that Schedule to a report means, if the Motor Accidents Medical Guidelines require medical reports to be in a particular form, a report in that form.

A claimant may not claim an amount set out in item 5 or 6 of Schedule 2 in respect of an initial report by an attending medical practitioner unless—

the claimant has requested in writing that the insurer provide the report to the claimant, and

the insurer has failed to do so within a reasonable time.

This clause does not affect fees recovered before 17 December 1999 or for which a bill was issued before that day.

Costs are not to be included in an assessment or award of damages in respect of an expert witness giving evidence, or providing a report, on behalf of the claimant in relation to a claims assessment or in court proceedings under the Act, except for costs in respect of—

one medical expert in any specialty, and

2 experts of any other kind.

Subclause (1) does not apply if the Commission or court concerned agrees that costs are payable in respect of a greater number of expert witnesses in the matter.

Despite subclause (1)(a), if there is a substantial issue as to a matter referred to in section 58(1)(d) of the Act, costs are payable in respect of 2 medical experts in any specialty relevant to the injury concerned.

This clause extends to costs incurred in connection with medical assessments.