State of Origin: Why It’s an Issue if Parties are from Different States

State of Origin: Why It’s an Issue if Parties are from Different States

Have you been injured in NSW and would like to claim in relation to that injury, but have moved states? Or do you live in QLD but travel into NSW for work and were injured onsite? Well, this is scenario that many people face and luckily for most it doesn’t matter where you live when lodging a workers compensation claim in the Personal Injury Commission of NSW.

However, there have been some cases determined in both the Personal Injury Commission and the District Court of NSW over the last few years that have changed the process for those living outside of NSW.

The main thing people need to be aware of is that the Personal Injury Commission cannot determine disputes between:

  • States; or
  • residents of different States; or
  • a State and a resident of another State.

The most common scenario from the above is number 3, a dispute between a State and a resident of another State. Cases that involve suing a Government employers such as the NSW Police Force, the NSW Department of Education and the NSW Local Health Districts are classed as suing the State of NSW. Therefore, the Personal Injury Commission does not have jurisdiction to determine these cases if they are brought by a person living outside of NSW and instead they have to be taken to the District Court of NSW.

One of the main cases that discussed this issue was Ritson v New South Wales. This case involved an ex serving NSW Police Officer who was required to cease work due to Post Traumatic Stress Disorder. He lodged an application in the Personal Injury Commission in relation to his workers compensation claim against the NSW Police Force. The Member who was delegated the responsibility of deciding the matter, decided that because the NSW Police Force was considered “The State” and the injured worker lived outside of NSW, the Commission did not have jurisdiction to determine the dispute.

There was another case, Ritchie v The Nominal Defendant that we need to draw your attention to.

This case found that a claim brought by a person outside of NSW against the NSW Nominal Insurer (the insurer who steps in to act as the employer if the employer has become deregistered or does not have workers compensation insurance) also must go through the District Court instead of the Personal Injury Commission.

Luckily, there has been relief for some interstate residents since the above cases were determined.

The Court of NSW heard Kanajenahalli v State of New South Wales (Western New South Wales Local Health District) which confirmed that if the only issue in dispute for a psychological injury claim is if the employer’s actions in relation to demotion, performance management etc. are reasonable then the Personal Injury Commission can determine it.

Since these cases, the Commission has published specific guidelines to assist lawyers and injured workers in working out whether their case is affected by this “federal jurisdiction” issue. The Registrars at the Commission also review every application that is lodged to make sure it is not affected before accepting it. This ensures that the Commission’s resources are not wasted on applications that need to be filed in the District Court instead.

So, at what point does where you live count?

The Commission has determined that the point in time when a person’s residency is considered is when they file their application with the Commission.

The District Court of NSW, How Does it Work?

Division 3.2 of the Personal Injury Commission Act 2020 (PIC Act) enables persons, with leave of the

District Court, to commence proceedings in that Court for the determination of applications that the Commission cannot determine because those applications involve the exercise of federal jurisdiction.

Having to take your case to the District Court would likely result in higher legal costs which are above what the workers compensation insurer is required to pay. This means you would then be left to pay the rest out of any damages you receive from the Court. It will also likely result in delays in having your case finalised as the District Court does not move through cases as quickly as the Personal Injury Commission. These are all reasons why lawyers will do their best to try and keep it out of the District Court and assist you in reaching an acceptable settlement directly with the insurer.

Can I get Help?

YES! If you are a worker who was injured in NSW but live in another State and are not sure if your claim is affected by the above issues, then call us at Bourke Legal on 1300 026 875. We are here to help.