Fraser v AAI Limited t/as GIO as agent for the Nominal Defendant [2020] NSWSC 1333

Supreme Court New South Wales

Medium Neutral Citation: Fraser v AAI Limited t/as GIO as agent for the Nominal Defendant [2020] NSWSC 1333 Hearing dates: In Chambers on the papers Date of orders: 30 September 2020 Decision date: 30 September 2020 Jurisdiction: Common Law Before: Campbell J Decision: (1) An order in the nature of certiorari quashing the Review Panel Certificate in MAS Matter No. 2019/02/0217 dated 18 December 2019. (2) An order in the nature of mandamus remitting the matter to the Second Defendant for reference of the plaintiff's application for medical review to a differently constituted panel of at least three medical assessors for determination according to law. (3) The Plaintiff has liberty to apply in respect of costs to be exercised by Notice of Motion filed within 14 days supported by affidavit and written submissions not exceeding 3 pages in length, which matters are to be served upon the solicitor for the First Defendant. (4) The First Defendant to file any affidavit upon which it relies and its written submissions in response within a further period of 7 days with a view to the question of costs being determined in chambers on the papers without the need for any party to appear. Catchwords: ADMINISTRATIVE LAW – jurisdictional error – where multiple grounds propounded by the plaintiff - procedural fairness – where no opportunity given to re-examine the plaintiff – where Review Panel failed to conduct fresh assessment – where constructive failure to exercise jurisdiction – where question of adequate reasons given by the decision-maker – where question of failure to respond to substantial and clearly articulated arguments – where lack of contemporaneous record of complaint was treated as decisive to causation Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) ss 44, 58(1)(d), 60, 61, 61(2), 61(9), 63, 63(3A), 131, 132, 133 Supreme Court Act 1970 (NSW) s 69 Uniform Civil Procedure Rules 2005 (NSW) r 6.11 Cases Cited: AAI Ltd (t/as GIO) v McGiffen [2016] NSWCA 229; 77 MVR 348 Allianz Australia Insurance Limited v Cervantes [2012] NSWCA 244; 61 MVR 443 Allianz Australia Insurance Limited v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 Boyce v Allianz Australia Insurance Limited (2018) 96 NSWLR 356; [2018] NSWCA 22 Dranichnikov v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2003) 77 ALJR 1088; [2003] HCA 26 Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323; [1999] FCA 557 Mackey v CIC Allianz Australia Insurance Limited & Anor [2015] NSWSC 505 Rodger v De Gelder [2015] NSWCA 211; 71 MVR 514 Trust Co. of Australia Limited v Perpetual Trustees WA Ltd (1995) 36 NSWLR 654 Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Texts Cited: American Medical Association's Guide to The Evaluation of Permanent Impairment (4th Edition) Motor Accident Authority, "Medical Assessment Guidelines", 1 October 2008 Review Panel Practice Note 3/2005, the Review Panel Process Category: Principal judgment Parties: David William Donald Fraser (Plaintiff) AAI Limited trading as GIO (ABN 48005297807) as agent for the Nominal Defendant (First Defendant) State Insurance Regulatory Authority (Second Defendant) Medical Review Panel (Third Defendant) Representation: Counsel: J Gumbert (Plaintiff)