Decision
Insurance Australia Limited t/as NRMA Insurance v Tanuja Banu [2026] NSWPIC 357
Sixty-Second-Or-Less Summary
A Claimant makes a claim for damages following a motor accident. She was employed by her husband’s cleaning business prior to her accident.
The Insurer requests copies of the Claimant’s payslips to verify her claim for economic loss. The Claimant fails to fully comply. Her husband’s company fails to respond to a Direction for Production.
Should the damages claim be exempted from the Commission?
In IAG v Banu, a Senior Member concluded that the matter was not suitable for assessment because the Claimant’s payslips had “apparent relevance” to the assessment of the claim for economic loss and the Commission, unlike the Court, had no power to compel compliance with the Direction for Production.
Principles
✅ Pursuant to section 7.34(1)(b) of the Motor Accident Injuries Act 2017 (MAIA), a claim for damages may be exempted where assessment by the Commission is not suitable.
✅ The primary issue in assessing suitability is whether the Commission can afford both parties a fair hearing.
✅ The Commission may not be able to afford a party a fair hearing in circumstances where an entity fails to respond to a Direction for Production given that the Commission, unlike a Court, cannot compel compliance.
Facts
The Claimant was injured in a motor accident on 28 November 2023 and subsequently made a claim for damages.
She was employed by her husband’s cleaning business at the time of the accident. A dispute arises regarding the level of the Claimant’s personal exertion activity within the business.
At the request of the Insurer, the Commission issued a Direction for Production which required the Claimant’s employer to produce his payslips. The Claimant’s employer failed to comply with the Direction for Production.
The Insurer applied for a discretionary exemption on the grounds that the claim was not suitable for assessment by the Commission.
The Senior Member’s Decision
The Senior Member confirmed that the issue at hand is whether the claim is suitable for assessment by the Commission. The natural and ordinary meaning of “suitable” is “such as to suit; appropriate, fitting, becoming” – IAG Limited t/a NRMA Insurance v Khaled & ors [2019] NSWSC 320.
The Senior Member also confirmed that, in assessing suitability, a primary question was whether the Commission could afford both parties a fair hearing, in a practical sense – Insurance Australia Limited t/as NRMA Insurance v Banos [2013] NSWSC 1519
Having set out those principles, the Senior Member decided that the claim was not suitable for assessment by the Commission for the following reasons:
🟪 Whilst liability was admitted, the Claimant sought damages exceeding $1 million.
🟪 The reliability of the Claimant’s evidence was in issue.
🟪 The Claimant had not been able to provide the insurer with all the payslips which the Insurer had requested.
🟪 The pattern of income likely to be disclosed by the Claimant’s payslips – including income splitting with her spouse – had “apparent relevance” to the assessment of the Claimant’s damages.
🟪 The Claimant’s employer had not produced documents in response to a Direction for Production.
🟪 A Court has the power to compel compliance with a Subpoena for Production, whereas the Commission cannot compel compliance with a Direction for Production.
🟪 The Insurer cannot be afforded a fair hearing without access to the Claimant’s payslips.
🟪 The claim should be determined in a jurisdiction where the Insurer can compel production of records that are “apparently relevant” to the issues in dispute.
My Perspective
The decision in Banu underscores that the list of indicia of suitability in Rule 99(3) of the Personal Injury Commission Rules 2021 are neither prescriptive nor exhaustive. As the Senior Member noted, the sub-rule begins with the words “without limiting the matters that may be considered, the Commission may consider the following…”.
The real issue is whether the circumstances mean that one party will be denied a fair trial if the dispute remains in the Commission.
The fact the Commission cannot compel compliance with a Direction for Production is one factor which might cause a Commission hearing to be unfair to the party seeking production of documents. The party must still, however, demonstrate that the documents it seeks have “apparent relevance” to the issues in dispute.
PJH