Amos v AAI Limited t/as GIO [2023] NSWSC 1193

Supreme Court New South Wales

Medium Neutral Citation: Amos v AAI Limited t/as GIO [2023] NSWSC 1193 Hearing dates: 14 July 2023 Decision date: 06 October 2023 Jurisdiction: Common Law Before: Rothman J Decision: (1) An order in the nature of Certiorari quashing the decision, certificate and medical assessment of the Review Panel of the Personal Injury Commission of New South Wales ("the Commission"), constituted by the third defendants relating to the plaintiff herein, issued, in relation to the Certificate, on 8 November 2020, and, in relation to the decision and/or reasons for decision, issued on 15 November 2022; (2) An order remitting the application for review by the first defendant herein of the medical assessment of the plaintiff to the second defendant herein, being the President of the Commission, to be dealt with in accordance with the Motor Accident Injuries Act 2017 (NSW), including, to the extent appropriate, referral to a differently constituted Review Panel to deal with the said application; (3) The first defendant shall pay the plaintiff's costs of and incidental to the proceedings before the Court; (4) If either the plaintiff or the first defendant seeks a different or special order as to costs, such may be the subject of application within 10 days of the date of this judgment and the other party may respond within a further seven days. Any such application and response shall be in writing, of 10 pages or less (not including any document by way of evidence); and such application shall be dealt with on the papers. Catchwords: ADMINISTRATIVE LAW – Procedural Fairness – Review Panel under Motor Accident Injuries Act – Failure to provide reasonable opportunity to deal with crucial issue – practical injustice – decision quashed Legislation Cited: Commonwealth Conciliation and Arbitration Act 1904 (Cth) Conciliation and Arbitration Act 1904-1983 (Cth), ss 40, 41 Conciliation and Arbitration Act 1983-1988 (Cth), ss 110, 111 Industrial Arbitration Act 1901 (NSW) Industrial Arbitration Act 1912-1949 (WA), s 69 Industrial Arbitration Act 1940 (NSW), s 83 Industrial Relations Act 1988 (Cth), ss 110, 111 Industrial Relations Act 1996 (NSW), ss 162, 163 Motor Accident Guidelines, cll 6.21, 6.41 Motor Accident Injuries Act 2017 (NSW), ss 7.21, 7.23, 7.26(7), 7.26(9) Motor Accidents Compensation Act 1999 (NSW), s 94(5) Personal Injury Commission Act 2020 (NSW), s 43 Small Debts Recovery Act 1912 (NSW), s 7 Supreme Court Act 1970 (NSW), s 69 Workplace Relations Act 1996 (Cth), ss 110, 111 Cases Cited: Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 44 ALR 607 Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 Barlow v Orde (1870) L.R.3 P.C.164 Browne v Dunn (1893) 6 R 67 Colliery Employees Federation v Northern Colliery Proprietors Association [1904] 3 AR (NSW) 182 Dolan v Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206; [1993] FCA 202 Greater Wollongong City Council v Dunn [1973] 1 NSWLR 36 Haberfield v Department of Veterans' Affairs (2002) 121 FCR 233; [2002] FCR 1579 Hoskins v Repatriation Commission (1991) 32 FCR 443 Marelic v Comcare (1993) 47 FCR 437; [1993] FCA 790 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Nathanson v Minister for Home Affairs (2022) 96 ALJR 737; [2022] HCA 26 Pastrycooks Employees, Biscuit Makers Employees & Flour & Sugar Goods Workers Union (NSW) v Gartrell White [No 2] (1990) 35 IR 60 R v Birks (1990) 19 NSWLR 677 Re Association of Architects of Australia; ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298; [1989] HCA 13 Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S154/2002 (2003) 77 ALJR 1909; [2003] HCA 60 Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Re National Building Trades Construction Award 1975 (1983) 17 IR 446 Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82; [2000] HCA 57 Skinner v Naunihal Singh (1913) 40 Indian Appeals 105 Sullivan v Department of Transport (1978) 20 ALR 323; [1978] FCA 48 TA Miller Ltd v Minister of Housing and Local Government [1968] 1 WLR 992 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Texts Cited: O. Howard Beale "Equity and Good Conscience", (1937) 10 ALJ 349 Category: Principal judgment Parties: Jesse Owen Amos (Plaintiff) AAI Limited t/as GIO (First Defendant) The President of the Personal Injury Commission of New South Wales (Second Defendant) John O'Neill, Ian Wechsler, Susan McTeff as members of the Review Panel of the Personal Injury Commission of New South Wales (Third Defendant) Representation: Counsel: J Gumbert/M Jones (Plaintiff) C Allan (First Defendant) Submitting Appearance (Second Defendant/Third Defendant)