FAQs Protocols 2016

These are the Frequently Asked Questions (FAQs) about the 2016 Protocols.

General

General
How did the TAC get to the revised Protocol cost figures? What was taken into account? Protocol costs are paid in recognition of the work performed by lawyers on a Protocols application. In revising the Protocols costs, the TAC considered data on legal costs paid, the impact of the changes in Court Scale costs and the efficiencies expected from the implementation of the revised Protocols. In consultation with the Law Institute of Victoria and Australian Lawyers Alliance, the TAC agreed on an increase in the Protocols costs.
Why is there a gap between Court scale costs and Protocol costs for Alternative Dispute Resolution (ADR)? Protocol costs recognise the time and effort of lawyers in following the processes set out in the Protocols. Those Protocol processes are designed to encourage resolution of applications as quickly and cost effectively as possible. Court scale costs apply once proceedings are initiated. Costs paid for a Protocols application reflect the work undertaken by way of ADR (and not that of litigation).
Why can’t I lodge an application via email, despite it being referenced in the Protocols? The TAC has investigated a number of options for the lodgement of Protocol applications. Email is not secure for the transfer of claimant information and is limited by the volume and size of attachments. The TAC is continuing to explore alternative processes to facilitate efficient lodgement of Protocols applications. In the meantime, applications are to be submitted via post.  
What mechanisms will the TAC have in place to prevent multiple requests for information? To assist the TAC efficiently review a Protocols application, applications should be completed with the required detail and accompanied by all relevant documents. The TAC is committed to making decisions on the information provided and minimising requests for further information, however, there may be instances when the TAC needs to ask for further information.

Where a claimant’s solicitor does not agree that further information requested by the TAC is required, escalation processes have been built into the Common Law, Impairment and No fault Dispute Resolution Protocols.

To best understand what further information is being requested by the TAC, when and why, the TAC will record and track this information, identifying any themes and/or opportunities for improvement. This information and any related insights will be discussed at the quarterly reviews between the TAC, Australian Lawyers Alliance and Law Institute of Victoria.

Joint Medical Examination (JME) Protocols

Joint Medical Examination (JME) Protocols
What is the process for requesting a supplementary report following receipt of a Joint Medical Examination (JME)? If a party wishes to obtain a supplementary report following a JME, they must notify the other party in writing including a copy of the proposed letter to the examiner. The other party should respond within 14 days if they wish to provide further questions and/or material or if they do not agree. If the non-initiating party fails to respond within 14 days the request for a supplementary report is deemed to have been approved.
When can I claim medicolegal report as a disbursement? As per Section 60 (2F) of the Transport Accident Act (Vic) 1986, the TAC is not required to pay for medicolegal reports unless those reports are obtained jointly by the TAC and the claimant.

The TAC will only pay for the reasonable cost of medico legal reports not obtained on a joint basis when an Impairment, Common Law or Dispute Protocol application has been received and the report is reasonably required. In the case of Impairment, the claimant must also receive an impairment benefit and the report must have been submitted prior to the impairment determination being made. Medico legal reports obtained during litigation can be considered as a disbursement following legal proceedings.

It is important to note that the TAC will not reimburse a medico legal report not obtained on a joint basis where the report is a duplication of a JME speciality used in the determination of impairment (e.g. two orthopaedic assessments for the same claim and injury).

Can I challenge a denial of a JME? As part of the JME Protocols, if you are dissatisfied with the TAC’s decision to deny a JME, you can apply for a review of that denial by submitting a Notice of Intention to Lodge a Dispute form with the TAC. The form can be found on the TAC’s website. Your application will be assessed by the TAC’s Review Office and responded to within the required timeframe. Should the TAC maintain the denial, normal review rights remain available.
What is the process for rearranging a Joint Medical Examination (JME) appointment? To reschedule a JME, the claimant’s lawyer must submit a completed JME reschedule form via e-mail to the JME inbox more than 28 days from the appointment date to allow all parties sufficient time to send information to the examiners. If the appointment is within 28 days please email TAC at jmerequests@tac.vic.gov.au.

Common Law Protocols

Common Law Protocols
If a Serious Injury Certificate is not granted at the Serious Injury Conference, what happens? This is dependent on the discussions held during the conference. If further information is required to consider the granting of a certificate, this will be arranged by agreement between the parties. If the TAC’s decision at the conclusion of the conference is to deny a serious injury certificate, a letter will be sent to the solicitor with reasons and supporting documentation. The claimant may then lodge an Originating Motion should they not accept the TAC’s decision.
If you have had a Serious Injury conference and lodge an Originating Motion (OM), do I still have an OM conference? Yes. An Originating Motion Conference will still occur as part of the Court process.
Can common law damages be settled at the Serious Injury Conference? Yes. The Serious Injury Coordinator attending a conference is authorised to settle the common law claim if a Serious Injury Certificate is granted at the Serious Injury Conference. Whether negotiations to settle the common law claim can be held will depend on whether the parties are in a position to have meaningful discussions about the quantum of damages.
If you do not settle common law damages at the Serious Injury Conference, what happens? If an agreement to settle common law damages is not able to be reached at the Serious Injury conference, a Common Law Conference will need to be held before a Writ may be issued.
Why is the TAC’s preliminary liability view made without prejudice? The new Common Law Protocols provide a claimant with an opportunity to bypass Impairment. In order to determine whether to bypass impairment, it is important for the claimant to know the TAC’s preliminary view on liability as early as possible. The TAC’s preliminary view on liability is made without prejudice to enable the claimant to make a decision, without either party being prejudiced by the identification of new information.
Why is there no uplift for attending a Serious Injury Conference without Counsel? The Serious Injury conference provides the claimant with the opportunity to put their case to the TAC without the costs and risks associated with litigation. The agreed price points payable for attendance at a Serious Injury Conference are designed to encourage counsel attendance at the conference.
When will Impairment bypass price points be paid? Price points associated with the impairment bypass will be paid at the settlement of Common Law.
Will Serious Injury conferences be held in Melbourne? Conferences will typically be conducted in Melbourne or another location as agreed by both parties.

No Fault Dispute Resolution Protocols

No Fault Dispute Resolution Protocols
Will the TAC ask for information under the Protocols and then again through the Tribunal process? The TAC has an obligation to request all relevant information early in the dispute process. However, the TAC may ask for further information if it becomes necessary and relevant to the issues in dispute during VCAT proceedings.
Do I need to provide a claimant’s statement as part of a Dispute Resolution Application? Yes, in all cases except matters relating to the reasonableness of a fee or cost (see clause 13.1.3).
Chapters 10-15 of the No Fault Dispute Resolution Protocols set out the information that a claimant should provide in support of their Dispute Resolution Application, which includes a claimant’s statement. The matters that should be addressed in the claimant’s statement for each dispute type are also set out in Chapters 10-15.
When do I need to provide a claimant’s statement? A claimant’s statement can be provided at the time you lodge their Dispute Resolution Application, or it may be provided any time up to 21 days after the TAC provides its information to you (see clauses 5.3, 5.4 and 6.1).
If you do not provide your claimant’s statement at the time of lodging the Dispute Resolution Application, then you should specify when the claimant’s statement will be provided to the TAC in the timetable included in the Application form.
What happens if I don’t provide a claimant statement when I lodge a Dispute Resolution Application? Until the TAC receives all the relevant information on which a claimant will rely in the Dispute Resolution Application, including a claimant’s statement, the TAC may not be in a position to agree to a proposed conference date or to attend a conference.
If the timetable in the Dispute Resolution Application form is completed and includes an anticipated date of exchange of the claimant’s statement, the TAC may then be able to agree to a proposed conference date (where that conference date is after the anticipated date of exchange).
Why is it important for a claimant’s statement to be provided? Chapters 10-15 set out matters which a claimant’s statement should address. Those details assist the TAC to understand the key issues in dispute from the claimant’s perspective. This in turn enables the TAC to focus its efforts on those key issues and identify a pathway to resolving those issues.
Without the claimant’s statement, the key issues in dispute may not be apparent to the TAC which may lead to delays in resolving the dispute.