Policy

There are three options that enable clients to have a TAC decision reviewed. They are:

• TAC Informal Reviews
• Dispute Resolution Protocols and
• Reviews to the Victorian Civil Administrative Tribunal (VCAT).

A client can at any time request a statement outlining the reasons for the decision prior to proceeding with a request for TAC to review its decision.

Guidelines

1. TAC Informal Review

What is the TAC Informal Review process?

An Informal Review involves a thorough review of a decision by the TAC Review Manager. The Informal Review process is a free service available to all TAC clients.

The TAC Review Manager works independently of the claims area where the decision was made. The TAC Review Manager considers all relevant information available, as well as any new information that is provided.

Where possible, a client and/or their representative will be contacted to provide them with an opportunity to discuss the Informal Review request.

The TAC Review Manager ensures that the outcome of the review is provided to the client and the client's representative.

If an Informal Review is still in progress 12 months from the date of the decision, the TAC Review Manager will continue with the review until finalised.

How is a request for an informal review made?

A request for an Informal Review may be initiated by:

• a client
• a client's representative or
• a service provider.

A request for an Informal Review must be made on the 'Request for an Informal Review' form and must be submitted to the Review Manager within 12 months of becoming aware of the decision.

Alternatively, you can contact the TAC on 1300 654 329 and a form will be sent out to you for completion and return.

What if a client is still dissatisfied with the TAC's decision?

A client who is dissatisfied with the outcome of an Informal Review has two options.

1. Dispute Resolution Protocols (if represented by a lawyer) or
2. Victorian Civil and Administrative Tribunal (VCAT).

What happens when a request for review is made to both the TAC Review Manager, and Dispute Resolution Protocols or VCAT?

Where a client has lodged both:

• a request for an Informal Review and
• a Dispute Resolution Protocol application or VCAT application for review

the TAC Review Manager will withdraw the Informal Review request. The TAC Review Manager will only conduct an Informal Review if the application to VCAT has been lodged to protect a client's 12 month VCAT review rights.

2. Dispute Resolution Protocols

The protocols apply to decisions made on or after 1 March 2005 where a client has, at any time after the transport accident, retained a legal representative who is a member of either the Law Institute of Victoria (LIV) or the Australian Lawyers Alliance (ALA).

See also the TAC protocols.

How do the Dispute Resolution Protocols work?

Under the protocols, clients who are represented by a legal representative who is a member of LIV or ALA may not issue an application for review to VCAT unless a pre-issue review has been completed except when both the client and the TAC consent in writing.

2.1 Pre-Issue Review (Dispute Application)

What is a Pre-Issue Review (Dispute Application)?

A client or a person who is dissatisfied with a TAC decision may, within 12 months of becoming aware of a TAC decision, apply in writing through the client's legal representative for a pre-issue review (dispute application).

The dispute application must identify the decision(s) subject to the review and the reasons why the client does not agree with the decision(s).

The dispute application must be supported by the information and documents required by the TAC in the possession of the client and which are to be relied upon in the pre-issue review. Any further information that is either unavailable or in the process of being obtained must be provided within 28 days of the dispute application.

Who should Dispute Applications be made to?

Dispute applications must be served on the Manager, Dispute Resolution, Transport Accident Commission, 60 Brougham Street, Geelong VIC 3220 or DX 28, Melbourne.

What must the TAC do once a dispute application is received?

The TAC must within 14 days of receiving a dispute application commence a pre-issue review by acknowledging receipt of the dispute application to the client and the client's legal representative. The acknowledgement may be in writing or by email and must include the date the dispute application was received.

The TAC must conclude a pre-issue review either:

• within 14 days of the conclusion of the pre issue conference, or
• if the dispute has been resolved before the pre-issue conference, within 14 days of the resolution.

What happens if the TAC fails to commence a pre-issue review within 14 days of receiving a dispute application?

Where this occurs, the TAC is deemed to have affirmed the original decision and the client may issue an application for review at VCAT.

2.2 Pre-Issue Conference

When does a pre-issue conference take place?

A pre-issue conference must commence within 90 days of the dispute application being received by the TAC. It must be concluded within 120 days of being received.

A pre-issue conference can take place at the TAC's premises, the client's legal representative's office or at another venue convenient for all parties.

Who must attend the conference?

A pre-issue conference requires the attendance by the parties to the dispute to facilitate the resolution of the dispute application. The conference must be attended by:

• the client and where relevant, the client's guardian or administrator
• the client's legal representative
• a professionally qualified interpreter if the client requires one
• a representative from the claims management division(s) responsible for making the decision and who has the authority to resolve the issue(s) in dispute.

The TAC will pay the costs of:

• an independent mediator
• a facilitator
• a professionally qualified interpreter
• a joint expert where medical & like benefits or services are in dispute or
• a joint expert or special referee with expertise in the Impairment AMA Guides.

What happens at the conclusion of a pre-issue review?

At the conclusion of a pre-issue review, the TAC must either:

• affirm its decision, or
• vary its decision, or
• make a new decision, or
• confirm resolution of the dispute and the agreed terms of the resolution and prepare a release to be signed by the client reflecting the agreed terms.

Where the TAC affirms or varies its decision, it will write to the client's legal representative confirming this decision.

A client can issue an application for review at VCAT where:

• the TAC fails to commence a pre-issue review within 14 days of receiving the dispute application, or
• the TAC fails to affirm, vary or set aside the decision or provide the written confirmation of its decision within 14 days after concluding the pre-issue conference, or
• it is within 3 months of the pre-issue review and the client remains dissatisfied with the outcome.

See also the TAC protocols.

3. VCAT Applications for Review

What is the Victorian Civil and Administrative tribunal?

The Victorian Civil and Administrative Tribunal (VCAT) is an independent body that deals with a range of disputes, providing Victorians with access to a civil justice system.

Before a TAC dispute is heard by VCAT, the tribunal may order a compulsory conference or a mediation to take place between the TAC and the client's solicitor (or client directly if not legally represented). If the matter is not resolved it proceeds to VCAT for a hearing where a decision is made by VCAT.

The TAC will notify a person (and their legal representative) whose interests are affected by a TAC decision about their right to lodge an application to VCAT.

What time limits apply when lodging an application to VCAT?

A person who wishes to lodge an application for review to VCAT must do so within:

• 12 months of being aware of the TAC's decision, or
• 3 months of being notified of TAC's decision on a pre-issue review made under the Dispute Resolution Protocols

whichever occurs last.

Transport Accident Act 1986 reference: s.77

How does a TAC client lodge an application to VCAT?

An application for review must be lodged on the prescribed form which is available from:

• the VCAT website at www.vcat.vic.gov.au or
• by contacting VCAT via telephone on (03) 9628 9700.

An intention to submit an application for review is not sufficient for VCAT to review the TAC's decision.

Is there a fee payable?

An application fee must be paid to VCAT by the person lodging the application. Refer to the VCAT website for the current amount payable.

Any person experiencing financial hardship including people who hold Health Care Cards, may apply for this fee to be waived, reduced or postponed, this is called fee relief.  An application form to apply for fee relief is available on the VCAT website.

What happens when the TAC receives an application for review?

The TAC has 28 calendar days from receiving a copy of an application for review from VCAT to either affirm, vary or revoke the decision, or request further information. In any case the client (and their legal representative) will be notified of the outcome.

Transport Accident Act 1986 references: s.78(1) and s.78(2)

What happens when the TAC does not comply within the time required for the review?

The TAC is considered to have maintained its decision if it has not provided written notice to the client (and their legal representative) affirming the decision, varying the decision or requesting further information.

Where the TAC does not conclude the matter within time VCAT may list a directions hearing or fix a date for hearing the application for review.

Transport Accident Act 1986 references:  s.80(3) and s.77(4)

What happens when TAC requests further information?

The client (or their legal representative) has 90 calendar days from the receipt of the notice to respond to the request for further information.

The TAC has 28 calendar days after receiving the information requested in the notice to conclude the review, or hold a conference. If a conference is held then the TAC has a further 14 calendar days to notify the person and the tribunal of its decision to affirm, vary or revoke its decision.

Transport Accident Act 1986 references: s.78(3) and s.78(4)

What happens when the person making the application fails to provide further information within 90 days of receiving the notice from the TAC making the request?

The TAC may ask VCAT to strike out or dismiss the application where the client fails to provide the information in the notice within 90 calendar days from the date of receiving the notice.

Transport Accident Act 1986 reference: s.78(5)

How are Legal costs assessed?

Where a client is legally represented and a decision has been revoked or varied in favour of the client, the TAC may:

• make a contribution towards legal costs according to County Court Scale "A" unless otherwise ordered by VCAT
• pay the reasonable costs of medical reports obtained by the client for the purposes of the review.

If the outcome of the application for review is in favour of the client then the TAC will refund the client the VCAT filing fee.

These costs will not be paid until resolution of the review.

VCAT can order the client to pay costs where appropriate. VCAT may take the following into account when awarding costs:

• failure to respond (without a reasonable excuse) to a TAC request by the client or his/her legal representative
• any offers of settlement may also be taken into consideration.

See also the Guidelines for costs recovery.

Transport Accident Act 1986 references: s.79(1), s.79(2) and s.79(3)