Clinton McGiffen v AAI Limited t/as GIO, as agent for Nominal Defendant [2015] NSWSC 1530

Supreme Court New South Wales

Medium Neutral Citation: Clinton McGiffen v AAI Limited t/as GIO, as agent for Nominal Defendant [2015] NSWSC 1530 Hearing dates: 27 February 2015 Date of orders: 16 October 2015 Decision date: 16 October 2015 Jurisdiction: Common Law Before: Rothman J Decision: 1) A declaration that the certificate and statement of reasons issued by Assessor Crane on 20 January 2014 is vitiated by error of law on the face of the record or jurisdictional error;

2) A declaration that the certificate and statement of reasons issued by the Review Panel on 2 June 2014 is vitiated by error of law on the face of the record and/or jurisdictional error;

3) The certificate and statement of reasons issued by Assessor Crane on 20 January 2014 be quashed;

4) The certificate and statement of reasons issued by the Review Panel on 2 June 2014 be quashed;

5) The plaintiff's claim for compensation under the Motor Accidents Compensation Act be remitted to the Motor Accidents Authority of New South Wales to be determined in accordance with law;

6) The first defendant shall pay the plaintiff's costs of and incidental to these proceedings, as agreed or assessed. Either party may apply for a special or different order as to costs by filing within 14 days of the date of this judgment a submission in relation thereto and may, for that purpose, include documents said to be relevant to that application, which documents are not otherwise in evidence. The aforesaid submission (excluding attached documents of the kind mentioned) shall be no more than 3 pages in length. Any other party may respond to any such application within a period of 14 days from the date of receipt of any such application. Such response is also confined to 3 pages in length. In the absence of an application for a different course, the question of costs will be dealt with on the basis of the written submissions. Catchwords: ADMINISTRATIVE LAW – judicial review – decision of Review Panel and individual medical assessor under Motor Accidents Compensation Act 1999 – causation of injury – error of law in making of finding without evidence –jurisdictional error in asking wrong question and applying wrong test of causation – using perceived absence of contemporaneous complaint or diagnosis as determinative of causation Legislation Cited: Motor Accidents Compensation Act 1999 Supreme Court Act 1970 Cases Cited: Allianz Australia Insurance Ltd v Cervantes [2011] NSWSC 1296 Allianz Australia Insurance Ltd v Ward [2009] NSWCA 264 Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 Budget v Fox [2014] NSWSC 888 Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 Edwards v Santos Ltd [2011] HCA 8; (2011) 242 CLR 421 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 NRMA Insurance Ltd v Ainsworth [2011] NSWSC 344 Owen v Motor Accidents Authority (NSW) [2012] NSWSC 650 Public Service Association (SA) v Federated Clerks Union of Australia [1991] HCA 33; (1991) 173 CLR 132 Rutland v Allianz Australia Insurance Ltd [2014] NSWSC 1583 Skiwing Pty Ltd v Trust Co of Australia t/as Stockland Property Management [2006] NSWCA 276 Swift v SAS Trustee Corp [2010] NSWCA 182 Category: Principal judgment Parties: Clinton McGiffen (Plaintiff) AAI Limited trading as GIO (First Defendant) The Motor Accidents Authority of NSW (MAA) (Second Defendant) Richard Crane in his capacity as medical assessor of the MAA (Third Defendant) Ian Cameron, Robin Fitzsimons and John Carter in their capacity as a medical assessor Review Panel of the MAA (Fourth Defendant) Representation: Counsel: E. Romaniuk/with R. Glover (Plaintiff) M. Robinson SC/with A. Poljak (First Defendant)