Pinarbasi v AAI Ltd t/as GIO [2023] NSWSC 80

Supreme Court New South Wales

Medium Neutral Citation: Pinarbasi v AAI Ltd t/as GIO [2023] NSWSC 80 Hearing dates: 1 February 2023 Date of orders: 14 February 2023 Decision date: 14 February 2023 Jurisdiction: Common Law Before: Schmidt AJ Decision: I order that: 1. The delegate's decision is quashed. 2 There be no order as to costs in relation to the President's appearance. 3. In the event that the other parties wish to be heard on the question of costs they should approach within 14 days and if there is any dispute, file short written submissions about what lies in dispute. Otherwise consent orders should be filed. Catchwords: ADMINISTRATIVE LAW — motor vehicle accident — Motor Accidents Injuries Act 2017 (NSW) — claim rejected by insurer — application for review —medical assessor finds shoulder injury not minor — insurer's application for review of assessor's certificate — gateway function of President of Personal Injury Commission of NSW under section 7.26(5) of the Act— where delegate referred review application to review panel — whether there is an implied obligation to give reasons for decision — gateway function of an administrative character — no implied obligation to give reasons for decision ADMINISTRATIVE LAW — judicial review — jurisdictional error — gateway function requiring President to consider whether there was reasonable cause to suspect material error in medical assessment — whether assessor not accepting medical opinions relied on by insurer on a medical dispute can provide the basis for the required statutory opinion — delegate fell into error — decision to refer assessment to review panel quashed Legislation Cited: Motor Accident Injuries Regulation 2017 (NSW), Pt 1, cl 4 Motor Accidents Compensation Act 1999 (NSW), s 63 Motor Accidents Injuries Act 2017 (NSW), Pt 7, Div 7.5, ss 1.6, 4.4, 7.13, 7.16, 7.19, 7.20, 7.21, 7.23, 7.26 Supreme Court Act 1970 (NSW), s 69 Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 327 Cases Cited: AAI Ltd v Fitzpatrick [2015] NSWSC 1108 Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353; [1949] HCA 26 Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24 Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 248 Doyle's Farm Produce Pty Ltd v Murray Darling Basin Authority (No 2) (2021) 106 NSWLR 41; [2021] NSWCA 246 Insurance Australia Ltd v Marsh [2022] NSWCA 31 Meeuwissen v Boden (2010) 78 NSWLR 143; [2010] NSWCA 253 Public Service Board (NSW) v Osmond (1986) 159 CLR 656; [1986] HCA 7 QBE v Miller [2013] NSWCA 442 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission (NSW) [2007] NSWCA 149 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Category: Principal judgment Parties: Mr Ahmet Duran Pinarbasi (Plaintiff) AAI Ltd t/as GIO (First Defendant) Ms Ratula Gupta, Delegate of the President of the Personal Injury Commission of New South Wales (Second Defendant) The President of the Personal Injury Commission of New South Wales (Third Defendant) Representation: Counsel: Mr R Sheldon SC (Plaintiff) Mr E Anderson (Plaintiff) Mr S Free SC (Third Defendant) Ms A Sapienza (Third Defendant)