Stephen John Kewin v AAI Limited t/as GIO Insurance

1. [1]

   By a second further amended summons filed on 16 May 2025, the plaintiff, Stephen John Kewin, seeks judicial review of a decision of a delegate of the second defendant, the President of the Personal Injury Commission (the Commission), made on 13 September 2024. The second defendant filed a submitting appearance in the proceedings. The first defendant, AAI Limited t/as GIO Insurance (Insurer), was the compulsory third party insurer and took an active role in the proceedings.

2. [2]

   In July 2021, the plaintiff lodged a personal injury benefits claim form with the Insurer in relation to injuries he sustained in a motor accident in November 2018. On 7 May 2024, the Insurer determined that the plaintiff’s injuries were “threshold injuries” as defined in s 1.6 of the Motor Accident Injuries Act 2017 (NSW) (the MAI Act). On 3 June 2024, following an internal review, the Insurer affirmed its decision. By reason of the characterisation of the plaintiff’s injuries as threshold injuries, he was not entitled to common law damages (s 4.4) and ceased to be entitled to statutory benefits after 26 weeks: MAI Act, ss 3.11, 3.28.

3. [3]

   On or about 30 July 2024, the plaintiff lodged a “Form M01-Medical Assessment” with the Commission to refer a “medical dispute” for assessment by a medical assessor under Division 7.5 of the MAI Act (the Form M01). The Form M01, which was accompanied by some 225 pages of submissions and evidence, identified the matters in dispute as “threshold injury” and identified eight injuries for assessment.

4. [4]

   One of the injuries (injury 8) was identified as “psychiatric condition” and was described as “depression, shock, anxiety”. In its initial decision, the Insurer had noted that there was no diagnosis of any psychological illness or injury in the evidence, or any qualified medical evidence or treating report in relation to such injuries. The Insurer also noted that the plaintiff had not been referred to any appropriate specialist for treatment of an injury of that kind. On internal review, the plaintiff provided the Insurer with a report of Dr Bodel dated 11 April 2022. In that report, Dr Bodel, an orthopaedic surgeon, stated that the plaintiff had suffered “a significant psychological disturbance”.

5. [5]

   In its internal review decision, the Insurer acknowledged Dr Bodel’s report but also noted that there was no evidence to suggest that the plaintiff’s general practitioner (GP) or a psychologist had assessed or diagnosed any psychological injury as a result of the accident. Further, there was no evidence to suggest that the plaintiff had been referred for any treatment pertaining to a psychological injury. In those circumstances, the Insurer stated, it had omitted this injury from the internal review.

6. [6]

   On 20 August 2024, the Insurer lodged a reply to the plaintiff’s application in the Commission, accompanied by some 322 pages of submissions and evidence. In relation to the claimed psychological injury, the Insurer submitted that there was no medico-legal opinion in support of that injury and there were no treating records from a psychiatrist or psychologist. The Insurer submitted that in the absence of a confirmed diagnosis there could be no psychiatric diagnosis attributable to the subject accident.

7. [7]

   On 2 September 2024, an officer of the Commission sent a message to the parties on the Commission’s messaging portal, which stated (omitting the formalities):

8. [8]

   On 3 September 2024, the plaintiff’s solicitor responded on the same messaging portal. The solicitor referred to Dr Bodel’s report, as well as to multiple statements in the records of the plaintiff’s GP, Dr Islam, to the effect that the plaintiff would require referral to a psychologist. The solicitor stated that the plaintiff advised that he still required psychological treatment from a psychologist and was under the impression that the insurer would organise this. He had since been advised to attend upon his GP for a referral. By way of further submission, the solicitor wrote:

9. [9]

   On 13 September 2024, the Team Leader – Medical Disputes sent the following response on the Commission’s messaging portal (again omitting the formalities):

The application for judicial review

1. [10]

   It is the decision not to refer the claimed psychological injury for medical assessment that is the subject of the present judicial review proceedings, with the plaintiff advancing the following ground of review:

2. [11]

   Although the ground of review refers to the existence of a medical dispute in general terms, the plaintiff acknowledged in his written and oral submissions that the focus of the ground of review was the Commission’s decision not to refer the claimed psychological injury for medical assessment. The Commission referred for assessment the dispute concerning the balance of the claimed injuries, which were the subject of the Insurer’s initial and internal review decisions.

3. [12]

   The plaintiff submitted that the existence of a “medical dispute” for the purpose of s 7.20 of the MAI Act is a jurisdictional fact that is for the Court to determine on an application for judicial review. In circumstances where he had claimed to have suffered a psychological injury in his application, the Insurer’s response was enough to give rise to a dispute about a medical assessment matter which the President was obliged to refer for assessment.

4. [13]

   The Insurer submitted that the existence of a medical dispute is not a jurisdictional fact in the sense for which the plaintiff contended, relying on the decision of the Court of Appeal in Insurance Australia Ltd t/as NRMA Insurance v Scott (2016) 92 NSWLR 741; [2016] NSWCA 138 (“Scott”). The Insurer further submitted that in any event, the President was not required to refer the dispute, having regard to the operation of the Personal Injury Commission Rules 2021 (NSW) (PIC Rules) made under s 20 of the Personal Injury Commission Act 2020 (NSW) (the PIC Act), along with procedural directions the President made under s 21 of the PIC Act. The Insurer also submitted that the decision the subject of the application for judicial review was not one that attracted relief under s 69 of the Supreme Court Act 1970 (NSW) because it did not have a discernible impact on the parties’ rights and did not determine any legal rights.

The evidence

1. [14]

   The plaintiff relied on an affidavit of Mia Robinson, solicitor, affirmed on 24 April 2025. Ms Robinson’s affidavit annexed all of the documents that were before the Commission.

2. [15]

   The plaintiff also sought to rely upon two further affidavits of Ms Robinson, respectively affirmed on 11 August 2025 and 12 August 2025. The first of those further affidavits annexed documents in a separate matter in the Commission, in which an officer of the Commission raised a similar issue about sufficiency of evidence and nonetheless determined to refer the whole of the medical dispute for assessment. In the second further affidavit, Ms Robinson deposed to her practice in relation to threshold injury disputes.

3. [16]

   Counsel for the plaintiff accepted that the material in the two further affidavits of Ms Robinson could not assist in the question of construction that was at the core of the ground of review. However, counsel submitted that these affidavits were primarily directed to the Insurer’s contention that if the ground of review was established, relief should nonetheless be refused in the exercise of the Court’s discretion. Although I admitted the two further affidavits subject to relevance, ultimately the plaintiff’s counsel did not seek to rely on them for the purpose that had been foreshadowed, including on the discretionary argument. Accordingly, I will not address them further.

Determination of the ground of review

1. [17]

   The central provision in issue on the ground of review is s 7.20 of the MAI Act, which provides:

2. [18]

   A “medical dispute” is defined in s 7.17 to mean, relevantly, “a dispute between a claimant and an insurer about a medical assessment matter”. A “medical assessment matter” is defined in s 7.1(1) to mean “a matter declared by Schedule 2 to be a medical assessment matter for the purposes of this Part”, being Part 7. Item 2 of Sch 2 provides that “[t]he following matters are declared to be medical assessment matters for the purposes of Part 7”, with those matters including, relevantly for present purposes:

3. [19]

   In support of his characterisation of the existence of a “medical dispute” for the purposes of s 7.20 of the MAI Act as a jurisdictional fact that is for the Court to determine, the plaintiff relied on QBE Insurance (Australia) Ltd v Miller (2013) 67 MVR 322; [2013] NSWCA 442, giving emphasis to the following in [17] of Basten JA’s reasons:

4. [20]

   The plaintiff submitted that the existence of a medical dispute was properly characterised as one for the Court to determine on judicial review, rather than resting on the opinion of the decision-maker. He placed particular emphasis in this regard on s 7.20(3), which confers a discretion on the President to refuse to accept the referral of a dispute about the degree of permanent impairment – another of the medical assessment matters declared in Item 2 of Sch 2 – on the basis of insufficient evidence. The plaintiff submitted that s 7.20(3) supported his contention that the President cannot otherwise refuse to refer a medical dispute and that there was thus no evaluative aspect of the decision-making. He also relied on the objects of the MAI Act in s 1.3, in particular the object “to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes”: s 1.3(2)(g).

5. [21]

   If the characterisation for which he contended were accepted, the plaintiff next submitted that in circumstances where he claimed to have suffered a psychological injury, and the Insurer raised in response the absence of any diagnosis of such an injury, that was enough to give rise to a dispute about a medical assessment matter. The President was thus obliged, by s 7.20(2) of the MAI Act, to refer it for assessment along with the dispute concerning the other injuries that the Insurer had determined were threshold injuries.

6. [22]

   In Scott, the Court of Appeal considered whether the existence of a medical dispute under the equivalent provision in the legislative predecessor to the MAI Act, the Motor Accidents Compensation Act 1999 (NSW) (the MAC Act), was a jurisdictional fact. Ward JA set out the applicable provisions in Scott at [49]-[54]. Relevantly for present purposes, s 60 of the MAC Act provided:

7. [23]

   Section 57 of the MAC Act defined “medical dispute” as a disagreement or issue to which Pt 3.4 of the Act applied, while s 58, in Pt 3.4, provided:

8. [24]

   Relevantly for present purposes, the first respondent, Ms Scott, was injured in a motor vehicle accident and made a damages claim against the driver of the other vehicle. The insurer disputed that Ms Scott was entitled to damages for the value of domestic care provided gratuitously and for care that she had formerly provided to her daughter, and sought to have that dispute referred to medical assessment. A case manager within the Motor Accidents Medical Assessment Service (MAS) of the State Insurance Regulatory Authority (Authority) notified the parties that the matter would proceed to assessment. The three medical assessors to whom the dispute was referred provided certificates that were unfavourable to Ms Scott.

9. [25]

   Among the arguments that Ms Scott advanced in her application for judicial review, she contended that the Authority erred in finding that there was a medical dispute for referral. The primary judge held that whether there was a “genuine dispute” to be referred for assessment was a jurisdictional fact to be determined by the court. The insurer challenged that conclusion in the Court of Appeal.

10. [26]

    In her Honour’s reasons in Scott at [110], Ward JA referred to the distinction that Basten JA drew in Miller at [17] (see at [19] above) between the two species of jurisdictional fact and noted that Ms Scott characterised the precondition of a dispute, in s 60 of the MAC Act, as involving the determination of the existence of an objective fact in the strict sense: at [110]. Ms Scott relied on a number of aspects of s 60 and the surrounding context to support that construction, which Ward JA summarised at [105] as including:

    1. (1)

       no officer was designated to make the decision;

    2. (2)

       s 60 did not prescribe any words or qualification and there was no requirement that the Authority be “satisfied”;

    3. (3)

       whether there was a dispute could be determined by reference to the parties’ respective positions, rather than requiring an evaluation and acceptance of one party’s position over another;

    4. (4)

       determination of the objective fact of a dispute was a “simple matter” unlikely to involve the court in lengthy proceedings or inconvenience; and

    5. (5)

       there was no requirement under the guidelines for reasons.

11. [27]

    Ward JA described the statutory scheme of the MAC Act, under which the Authority was empowered to refer a medical dispute for assessment, as “clearly predicated on the existence of” a medical dispute: at [113]. Her Honour also noted that referral for medical assessment under s 60 of the MAC Act was not expressed to be dependent on the state of satisfaction of the responsible officer. Nonetheless, her Honour cautioned against assuming “that the assessment whether there is, objectively ascertained, a dispute and the nature of that dispute will not require (at least in some cases) a complex factual enquiry, particularly if added to that precondition is the requirement that it be genuine”: at [115] (emphasis added). Her Honour considered that the construction of s 60 for which Ms Scott contended would have “the extraordinarily impractical result that every claim of this kind would potentially commence with a dispute (in the nature of a rehearing as per s 75A of the Supreme Court Act) as to whether the dispute was genuine or not”: at [116]. Her Honour further stated:

12. [28]

    Basten JA agreed with Ward JA that the decision to refer the matter to the medical assessors should not have been set aside, there being no suggestion that the opinion of the Authority was formed on some irrational or legally erroneous basis: at [8]. In reaching that conclusion, his Honour stated at [7]:

13. [29]

    The reasoning in Scott was consistent with Basten JA’s earlier observation, in Miller at [30], that although an express reference to the “satisfaction” or “opinion” of the decision maker would weigh in favour of a characterisation of the function as evaluative, the absence of such language has limited weight in circumstances where the power to determine whether there is a medical dispute arises as a matter of implication. The plaintiff’s reliance in the present case on the absence of similar language from s 7.20 of the MAI Act was of similarly limited assistance.

14. [30]

    The plaintiff sought to distinguish Scott on the basis that it was concerned with the question of whether the existence of a “genuine medical dispute” was a jurisdictional fact in the strict sense, as opposed to the existence of a “medical dispute”. However, the epithet “genuine” does not relevantly alter the characterisation of the fact of whether there is a medical dispute (genuine or otherwise). Basten JA’s conclusion in Scott was not predicated on whether the medical dispute was genuine or not, but, rather, on whether there was a medical dispute. Ward JA was also careful to articulate the question as one regarding the existence of a medical dispute, genuine or otherwise.

15. [31]

    The plaintiff also sought to distinguish Scott on the basis that s 60 of the MAC Act did not contain an equivalent to s 7.20(3) of the MAI Act. He submitted that the conferral of an express statutory power on the President to decline to make a referral in relation to a particular medical assessment matter for lack of evidence suggested that Parliament did not consider that such a power otherwise existed. However, the inclusion of s 7.20(3), which concerns the sufficiency of evidence in relation to a claim of a dispute regarding permanent impairment, does not call for a different conclusion on the proper characterisation of the fact of a medical dispute as one for the determination of the President and not for the court. To the contrary, the presence of s 7.20(3), which is formulated by reference to the President’s opinion, tells against the plaintiff’s submission that the decision to arrange (or not arrange) a medical assessment in respect of a dispute referred under s 7.20(1) does not involve matters of evaluative judgment.

16. [32]

    The plaintiff’s reliance on the beneficial nature of the MAI Act does not call for a contrary conclusion. That legislation may be broadly described as beneficial does not compel a construction of its provisions that is otherwise unsupported as a matter of text and context: see EFG v Secretary, Department of Communities and Justice [2025] NSWCA 245 at [39]. Further, as the Insurer submitted, the particular object on which the plaintiff relied, which referred to the quick, cost effective and just resolution of disputes, equally supports a construction of s 7.20 that is consistent with the construction of s 60 of the MAC Act that the Court of Appeal adopted in Scott.

17. [33]

    The plaintiff’s contention that whether a medical dispute exists for the purpose of s 7.20 of the MAI Act is a matter for the Court to determine is contrary to the Court of Appeal’s decision in Scott, which is binding upon me. Although it concerned s 60 of the MAC Act, I do not consider the terms of s 7.20 of the MAI Act, which was modelled on s 60, to be relevantly distinguishable.

18. [34]

    The plaintiff did not otherwise seek to contend that the decision under challenge was affected by legally reviewable error. Accordingly, the ground of review must be dismissed.

The Insurer’s alternative argument

1. [35]

   As I have determined the ground of review on its merits it is unnecessary comprehensively to address the Insurer’s alternative argument, that the basis of the decision under challenge was that there was no valid referral because the plaintiff had not complied with the applicable procedural rules of the Commission. The Insurer relied on s 7.1(3) of the MAI Act, which provides that a function conferred on the Commission by a provision of the Act in respect of any matter is to be exercised in accordance with the Commission rules, being the PIC Rules made under s 20 of the PIC Act (see [13] above). Rule 66 of the PIC Rules provides as follows:

2. [36]

   As to the procedural requirements referred to in r 66(2)(c), Procedural Direction 6 at the relevant time, made pursuant to s 21 of the PIC Act, included the following requirements, which the Insurer contended supported the decision in the present case:

3. [37]

   The Insurer submitted that the plaintiff did not provide any evidence of a psychological diagnosis in the material he submitted to the Commission. In the absence of such evidence, the Insurer submitted that the plaintiff had not complied with the President’s procedural directions and the President was entitled to refuse to accept the application on that basis. By contrast with what the plaintiff’s solicitor wrote in her response to the inquiry on the Commission’s messaging portal, the Insurer submitted that the requirement was not an onerous one, as [17] of Procedural Direction 6 made it clear that evidence from a treating practitioner would comply with the requirement.

4. [38]

   In addressing these points in his written submissions in reply, which were served (late) three days before the hearing, the plaintiff submitted that rule 66 of the PIC Rules was inconsistent with s 7.20(1) and (2) of the MAI Act and beyond power on that basis. As for [16] and [17] of Procedural Direction 6, the plaintiff submitted that they were beyond the power conferred by s 21(1) of the PIC Act because they sought to preclude a referral under s 7.20(1)(a). Following receipt of correspondence from the President, in oral submissions counsel for the plaintiff indicated that he did not press the submission that these provisions were ultra vires. Nonetheless, he submitted that rule 66 and [16] and [17] of Procedural Direction 6 were inconsistent with s 7.20 of the MAI Act and should be read down on that basis.

5. [39]

   The purpose of rules made under s 20 of the PIC Act, and procedural directions made under s 21 of the PIC Act, is to facilitate the exercise by the Commission of the statutory functions conferred upon it. Those functions include, as I have found, determining whether there is a medical dispute for the purposes of s 7.20 of the MAI Act. I do not discern any inconsistency between the content of the rules and procedural direction on which the Insurer relied, which are directed at ensuring the provision of adequate material to assist consideration of an application for referral, and s 7.20 of the MAI Act. In the present case, the absence of the evidence requested in accordance with the procedural rules was consistent with the absence of a medical dispute in relation to the claimed psychological injury and supportive of the decision made in that regard.

The availability of certiorari under s 69 of the Supreme Court Act

1. [40]

   In support of its contention that the decision was not amenable to relief in the nature of certiorari under s 69 of the Supreme Court Act, the Insurer relied primarily on the decision of Basten AJ in Insurance Australia Ltd t/as NRMA Insurance v Kyeremeh [2025] NSWSC 163 (“Kyeremeh”). While it is not necessary to decide this issue as I have decided against granting relief in any event, there is some force in the point.

2. [41]

   For certiorari to issue, it must be possible to identify a decision which has a discernible or apparent legal effect upon rights. It is that legal effect which may be removed for quashing: Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44 at [23] (Brennan CJ, Gaudron and Gummow JJ):

3. [42]

   In Kyeremeh, Basten AJ considered a decision by a delegate of the President of the Commission to arrange for a medical assessment to be referred to a review panel under s 7.26 of the MAI Act. His Honour observed that a decision to refer an application to a review panel under s 7.26 may not be a decision “having an effect on legal rights” (or a decision sufficiently connected to such a decision) because the effect of the decision was to leave the relevant rights unresolved until the review panel’s determination, and the decision was not a matter to be taken into account by the review panel:

4. [43]

   It is apparent from the above passage that his Honour contemplated that a decision not to refer might be of a different character, because it would effectively mean that the determination of the decision maker below is final, a decision not to refer under s 7.26(5) precluding a claimant from reapplying: see s 7.26(3). By contrast, there is no equivalent provision to s 7.26(3) in relation to an application under s 7.20(1) and (2). A claimant is thus not prohibited from making another application for referral under s 7.20: see MAI Act, s 7.24(3) and cl 13 of the Motor Accidents Injuries Regulations. It was for this reason that I can see some force in the Insurer’s contention that the decision in the present case is not amenable to relief under s 69 of the Supreme Court Act, although as noted above my dismissal of the ground of review renders it unnecessary to decide the point.

Conclusion

1. [44]

   The plaintiff’s amended summons should be dismissed. The usual rule as to costs applies. Accordingly, I make the following order:

   1. (1)

      The second further amended summons is dismissed with costs.