AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229 Hearing dates: 25 May 2016 Decision date: 25 August 2016 Before: Meagher JA; Simpson JA; Payne JA Decision: Appeal dismissed with costs. Catchwords: ADMINISTRATIVE LAW – judicial review – claim for compensation for injuries suffered in motor accident – Motor Accidents Compensation Act 1999 (NSW) – medical assessment – finding that injuries not caused by motor accident – no requirement for assessment of degree of permanent impairment – finding confirmed by review panel – application for judicial review – Supreme Court Act 1970 (NSW), s 69 – primary judge quashed certificate of review panel – jurisdictional error – causation – Motor Accidents Compensation Act 1999 (NSW), s 58(1)(d) – review panel failed to apply itself to real question posed by s 58(1)(d) – statutory function under s 58(1)(d) not exercised – jurisdictional error established

ADMINISTRATIVE LAW – judicial review – motor vehicle accident – error on the face of the record – whether primary judge was correct to conclude that review panel erred in law by finding critical fact on basis of no evidence Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), ss 3, 44, 57, 58, 59, 60, 61, 63, 65, 131, 133 Supreme Court Act 1970 (NSW), s 69 Cases Cited: Ali v AAI Ltd [2016] NSWCA 110 Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 443 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 Frost v Kourouche [2014] NSWCA 39; 86 NSWLR 214 Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 Rodger v De Gelder [2011] NSWCA 97; 80 NSWLR 594 Rodger v De Gelder [2015] NSWCA 211; 71 MVR 514 Spratt v Perilya Broken Hill Ltd; Spratt v Rowe [2016] NSWCA 192 Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 Category: Principal judgment Parties: AAI Ltd trading as GIO as agent for the Nominal Defendant (Applicant) Clinton McGiffen (First Respondent) State Insurance Regulatory Authority (Second Respondent) Assessor Richard Crane as medical assessor appointed by State Insurance Regulatory Authority (Third Respondent) Assessors Ian Cameron, Robin Fitzsimmons and John Carter as Medical Review Panel appointed by State Insurance Regulatory Authority (Fourth Respondent) Representation: Counsel: M A Robinson SC/A Poljak (Appellant) E G Romaniuk SC/R D Glover (First Respondent) Submitting Appearance (Second, Third and Fourth Respondents)