Page 146 - Week 01 - Tuesday, 9 December 2008

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accident claims. The act also provided a more rigorous set of time limits on nominal defendant claims. These included a statute bar on claims made after three months. This was not done on a whim but to ensure strict compliance with claims requirements that had been in the old law for many years but had been, frankly, honoured in the breach.

Needless to say, local lawyers protested about the restrictions but were unable to proffer a middle course. Rather, they yearned for the old ways of doing business. However, lawyers did raise the issue of delays in the provision of police reports that might cause the three-month period to be exceeded, with no opportunity for extension of the time.

The government gave lawyers an undertaking in this place on 21 August 2008 that, if evidence came to light that these delays could actually cause the problem they claimed, Treasury would ask the government to act. Treasury has since advised the government of two circumstances in which the restriction might operate to the detriment of prospective claimants against the nominal defendant. The first is where the police accident report is not provided within the three-month period and cases have emerged in that regard. The second involves the potential problem if an insured motor accident victim and prospective claimant files a claim with an insurer that incorrectly describes the registration numberplate of a vehicle involved in the accident and the vehicle turns out not to be insured but the claimant is not advised by an insurer within three months of the accident.

As to the police report issue and the main concern of lawyers with the government’s initiatives to bring more rigour to the CTP claims process, the Australian Federal Police developed an online accident reporting system to ensure that accident reports became available within the three-month period. That system was due to commence in mid-2008, prior to the act coming into force. However, implementation was delayed on account of further testing and the system will go live in the first part of 2009. While the AFP believes its new system will deliver the desired outcomes, it recommends permitting a concession in relation to claims reporting in case of inadvertent error or anomalies.

As to the latter issue, given that insurance claims vastly outnumber nominal defendant claims, it is impossible for insurers to promise 100 per cent accuracy in order to ensure that claim time limits are always met in relation to referring uninsured CTP claims to the nominal defendant. Consequently, clause 5 of the bill amends subsection 86(3) of the act to permit a nominal defendant claimant to provide reasonable excuse for delay if the time limit is exceeded. That ensures a cheap and effective option for individual claimants. The claimant has a further option pursuant to clause 8 of the bill, which amends subsection 95(3) of the act, to seek an order from the court that the time limit ought to be extended in the interests of justice.

Having provided those options in relation to nominal defendant claims, the government took the opportunity of amending subsection 95(3) to align the conditions applicable to seeking extensions of time from a court with respect to both insured and uninsured claims.

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