Litigation Intervention Policy

State Insurance Regulatory Authority’s approach to becoming involved in court or tribunal proceedings

This policy outlines the State Insurance Regulatory Authority’s (SIRA) approach to becoming involved in proceedings before a Court or Tribunal when it is not an existing party to the litigated matter.

SIRA will consider becoming involved in proceedings where it is necessary to represent the public interest on significant matters affecting the workers, motor accidents or home building compensation schemes.

SIRA will also consider and respond to any invitation to be involved in proceedings or make submissions, made to it by a Court or Tribunal.

Generally, it will be uncommon for SIRA to intervene as a party or as amicus curiae. Intervention is more likely to be considered where the matter is one of general importance and there is no contradictor (that is, nobody raising an opposing argument which is necessary to consider in determining the dispute).

The decision to intervene or seek leave to appear in proceedings will be made by the Chief Executive of SIRA or delegates as per SIRA’s Instrument of Functional Delegation, following consideration of advice.

The role of SIRA

SIRA regulates three statutory insurance schemes in NSW – workers compensation, motor accidents and home building. SIRA provides a consistent and robust framework to monitor and enforce the schemes’ legislation and ensures that public policy outcomes are achieved in relation to participants in the schemes, policy affordability and scheme sustainability.

SIRA’s principal objectives are set out in section 23 of the State Insurance and Care Governance Act 2015.

SIRA is funded from compulsory insurance levies across the workers compensation, motor accidents and home building schemes. SIRA has a responsibility under the Government Sector Finance Act 2018 to ensure that these monies are spent in an efficient, effective and prudent manner.

Involvement by SIRA in court or tribunal proceedings

SIRA may consider becoming involved in proceedings either through intervention as a party or appearing as amicus curiae.

Intervention as a party

Section 47 of the Personal Injury Commission Act 2020 specifically provides for intervention by SIRA in any proceedings before the Personal Injury Commission (Commission) (which hears workers compensation and motor accident matters).

Where SIRA exercises its discretion to intervene in proceedings before the Commission, it remains a party to those proceedings even on appeal.

Appearing as amicus curiae

An amicus is a person (or entity such as SIRA) who seeks to assist the court, such as by making submissions to it on a particular matter. SIRA may seek leave to appear as amicus curiae when it does not have a direct interest in the outcome of the case that warrants the grant of leave to intervene as a party but may be able to assist the court to arrive at its decision by virtue of its knowledge or expertise, or the making of appropriate submissions on the legal issues and facts involved. If leave to appear as amicus curiae is granted, the court may set conditions.

Examples of assistance that SIRA may be able to provide to the court include:

Helping the court to interpret legislation that SIRA administers
Drawing the court’s attention to a specific aspect of the proceedings that it appears would not otherwise be brought to the court’s attention by the parties and which SIRA is well placed to explain to the court
Providing a contradictory view to that offered by the parties, where no such view would otherwise be provided.

As amicus, SIRA does not become a party to the proceedings, meaning SIRA does not become automatically involved in subsequent appeals. A court may also invite or request SIRA to appear as amicus.

Determining whether to become involved in court or tribunal proceedings

SIRA has a discretion to intervene as a party or to apply for leave to appear as amicus curiae. In deciding whether to intervene in proceedings before the Commission or to seek leave to appear as a party or as amicus in courts or other tribunals, SIRA considers whether it would represent the most appropriate use of its resources. SIRA also seeks legal advice as to whether an application for leave to intervene or to act as amicus curiae is likely to succeed. SIRA considers matters on a case-by-case basis, being guided by the following policy considerations:

Could the outcome of the matter have a significant regulatory impact?

SIRA may seek to intervene in court or tribunal proceedings where a matter:

raises issues that are significant to SIRA’s statutory objectives or the exercise of its functions and powers
involves questions of statutory interpretation of the workers compensation, motor accidents or home building laws, the outcome of which could have significant implications for the relevant scheme
involves questions or submissions to a court which, if accepted, would affect the compensation payable for similar claims or the number of compensable claims or otherwise put pressure on the respective schemes
involves a dispute about NSW state jurisdiction or a question of constitutional law.

Do the benefits of intervening outweigh the potential costs?

SIRA weighs up the cost of intervening in the proceedings with the broader benefit to the public of doing so. This may involve an assessment of the cost of dedicating the necessary resources required to participate in the proceedings, the possibility of exposure to cost orders, and the potential lengthening of the proceedings and use of court or tribunal resources.

Do the issues specific to the matter warrant SIRA’s intervention?

SIRA considers issues specific to the matter as part of any decision about whether to intervene in the proceedings. This may include consideration of the following:

Has the court or tribunal asked SIRA to assist in the proceedings?
Does SIRA have information or evidence that should be put before the court or tribunal, and which would not otherwise be submitted by the parties to the proceedings?
Does SIRA have a legal interest in the proceedings – such as, could the decision affect pending litigation or might SIRA wish to be in a position to appeal an adverse finding?
Will SIRA’s involvement occupy the court’s time unnecessarily, adding to the cost of the proceedings without a commensurate benefit?
Do the existing parties to the litigation have appropriate legal representation so that the court or tribunal will have adequate assistance in determining issues, such as the correct interpretation of legislation administered by SIRA?
Has legal advice been sought on the prospects of any application for leave to appear?

Has SIRA been notified of the matter within a reasonable timeframe?

SIRA considers whether it has sufficient time to properly consider the issues in dispute and prepare for the proceedings before deciding whether to seek to intervene.

Are alternatives to becoming involved in the proceedings available?

SIRA considers whether an alternative course of action to intervening is more appropriate in the circumstances. This may include providing information or documents that SIRA possesses to parties to the proceedings (where appropriately requested), appearing as an expert witness or seeking to appear as amicus curiae.

When considering whether to seek leave to appear as amicus curiae, SIRA similarly applies the principles outlined above.

Intervention in courts

The courts have discretion to grant or refuse an application for joinder and for intervention either as a party or as amicus.

Where a matter involves a possible appeal to the High Court, special leave to appeal to that Court is required. If SIRA considers that policy considerations support intervention, legal advice will be sought as to whether intervention is possible on the special leave application, and/or if special leave is granted, on the appeal to the Court.

Request to become involved in court or tribunal proceedings

SIRA may receive notification or a request to become involved in proceedings from either the court or tribunal, or a scheme participant. The request must be in writing and if possible, should provide advance notification of the matter. The request should also include the following information, if available:

copies of all documents lodged in the proceedings to date
an outline of the matters on which SIRA’s involvement could assist
a summary of the matters that would justify SIRA becoming involved in the proceedings addressing the factors listed above.

Requests should be sent to the Director, Scheme Design, Policy and Performance, Workers & Home Building Compensation Regulation or the Director, Scheme Design, Policy and Performance, Motor Accidents Insurance Regulation at the contact information below.

After considering the above factors, SIRA may decide to seek leave to intervene in the matter or appear as amicus curiae.

Further information

Any questions about this policy may be directed to:

The Director, Scheme Design, Policy and Performance, Workers & Home Building Compensation Regulation at [email protected]
The Director, Scheme Design, Policy and Performance, Motor Accidents Insurance Regulation at [email protected]
The Director, Home Building Compensation Regulation at [email protected].