Boga v AAI Limited trading as AAMI [2022] NSWSC 560

Supreme Court New South Wales

Medium Neutral Citation: Boga v AAI Limited trading as AAMI [2022] NSWSC 560 Hearing dates: 30 March 2022 Date of orders: 12 May 2022 Decision date: 12 May 2022 Jurisdiction: Common Law Before: Dhanji J Decision: (1) The decision of the second defendant's delegate dated 5 July 2021 to refer the plaintiff for further medical assessment pursuant to s 62 of the Motor Accidents Compensation Act 1999 (NSW) is quashed. (2) The first defendant's application under s 62 of the Motor Accidents Compensation Act 1999 (NSW) is remitted to the second defendant for determination according to law by a different delegate. (3) The first defendant is to pay the plaintiff's costs on the ordinary basis. Catchwords: ADMINISTRATIVE LAW – Judicial Review – injury suffered from motor accident – degree of permanent impairment in issue – additional surveillance footage and medical reports provided – power to refer a party for further medical assessment under s 62 of the Motor Accidents Compensation Act 1999 (NSW) exercised – whether delegate failed to view surveillance or to assess it separately to the medical reports – whether delegate erred in concluding that reports were additional relevant information – whether delegate erred in concluding that the reports were additional relevant information capable of having a material effect on the previous assessment – whether delegate failed to exercise the residual discretion under s 62 – proper officer failed to exercise the residual discretion – jurisdictional error found Legislation Cited: Interpretation Act 1987 (NSW), s 49 Motor Accident Injuries Act 2017 (NSW) Motor Accidents Compensation Act 1999 (NSW), ss 44, 60, 61, 62, 65, 131 Personal Injury Commission Act 2020 (NSW) Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), r 59.3 Cases Cited: AAI Limited (t/a AAMI) v Boga [2020] NSWSC 1903; 95 MVR 17 AAI Ltd t/as AAMI v Chan [2021] NSWCA 19; 95 MVR 166 Ahern v Aon Risk Services Australia Ltd [2021] NSWCA 166 Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1; [1990] HCA 21 Craig v The State of South Australia (1995) 184 CLR 163; [1995] HCA 58 Day v SAS Trustee Corporation [2021] NSWCA 71 De Gelder v Rodger (No 2) [2014] NSWSC 1355; 68 MVR 340 Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480; 66 MVR 69 Insurance Australia Limited t/as NRMA Insurance v Asaner [No 2] [2016] NSWSC 1078; 77 MVR 233 Jubb v Insurance Australia Ltd [2016] NSWCA 153; 76 MVR 228 Miles v Motor Accident Authority of New South Wales (2013) 84 NSWLR 632; [2013] NSWSC 927 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 Texts Cited: State Insurance Regulatory Authority, Motor Accidents Medical Assessment Guidelines, (February 2021) Category: Principal judgment Parties: Suleyman Boga (Plaintiff) AAI Limited trading as AAMI (First Defendant) The President of the Personal Injury Commission of New South Wales (Second Defendant) Representation: Counsel: G Parker SC with J de Greenlaw (Plaintiff) J Catsanos SC (First Defendant)