Allianz Australia Insurance Limited v The Estate of the Late Summer Abawi [2024] NSWSC 1245

Supreme Court New South Wales

Medium Neutral Citation: Allianz Australia Insurance Limited v The Estate of the Late Summer Abawi [2024] NSWSC 1245 Hearing dates: 04 September 2024 Date of orders: 04 October 2024 Decision date: 04 October 2024 Jurisdiction: Common Law Before: Griffiths AJA Decision: Summons dismissed, with costs. Catchwords: TRAFFIC LAW AND TRANSPORT — Traffic law — Motor Accident Injuries Act 2017 (NSW) — Construction of s 1.6 — Meaning of "threshold injury"— Whether an injury to skin is a "threshold injury" — Whether skin falls within the statutory meaning of "soft tissue" — Where a review panel of the Personal Injury Commission found that skin lacerations sustained by the claimant were not "threshold injuries" — Where insurer contends that the construction of s 1.6 adopted by the Review Panel is contrary to the objects of the legislation — Where text of s 1.6 supports the construction adopted by the Review Panel ADMINISTRATIVE LAW — Judicial review — Summons seeking judicial review for error of law on the face of the record or a constructive failure to exercise jurisdiction Legislation Cited: Compensation to Relatives Act 1897 (NSW) Motor Accident Guidelines (version 9.1) Motor Accident Injuries Act 2017 (NSW), ss 1.3, 1.4, 1.6, 3.6, 3.7, 3.11, 3.14, 3.15, 3.24, 3.28, 4.1, 4.2, 4.4, 4.11, 7.26, Pts 3, 4, Divs 4.2, 4.3 Motor Accident Injuries Amendment Bill 2022 (NSW) Motor Accident Injuries Bill 2017 (NSW) Motor Accident Injuries Regulation 2017 (NSW), Pt 1 cl 4 Motor Vehicles (Third Party Insurance) Act 1942 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 Al-Khafaji v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 519 Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1; [2012] HCA 3 Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47 Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389; [1996] HCA 36 Dhupar v AAI Limited t/as GIO [2023] NSWPICMP 99 ENT19 v Minister for Home Affairs [2023] HCA 18; 97 ALJR 509 Nazari v AAI Limited t/as GIO (No 2) [2023] NSWPICMP 62 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 Texts Cited: Clayton Utz and Deloitte Touche Tohmatsu Pty Ltd, Statutory Review of the Motor Accident Injuries Act 2017, (22 September 2021) New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 9 March 2017 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 19 October 2022 P Herzfeld and T Prince, Interpretation (3rd ed, 2024, Thomson Reuters) State Insurance Regulatory Authority, Review of Minor Injury Definition in the NSW CTP Scheme, (2020) Category: Principal judgment Parties: Allianz Australia Insurance Limited (Plaintiff) The Estate of the Late Summer Abawi (First Defendant) Bridie Nolan, Shane Moloney and Michael Couch as a Review Panel constituted under s7.26 of the Motor Accident Injuries Act 2017 (Second Defendant) (Submitting appearance) The President of the Personal Injury Commission of New South Wales (Third Defendant) (Submitting appearance) Representation: Counsel: DR Toomey SC / J Gumbert (Plaintiff) AJ Stone SC / JL Magee (First Defendant)