Kewin v AAI Ltd t/as GIO Insurance

1. [1]

   LEEMING JA: Mr Stephen John Kewin is in dispute with the insurer of a motor vehicle which, he claims, “rear-ended” him causing him injury. It is now accepted that all of the physical injuries he sustained were “threshold injuries” within the meaning of s 1.6 of the Motor Accident Injuries Act 2017 (NSW) and the dispute is principally directed to whether his claimed psychological or psychiatric injury is likewise a threshold injury. If it is, as the insurer contends, then he is not entitled to any further statutory benefits nor to damages. He seeks leave to appeal from the dismissal of proceedings brought by him by way of judicial review for jurisdictional error in the Common Law Division of this Court, following the rejection by a delegate of the second respondent, the President of the Personal Injury Commission, of his application for assessment by a medical assessor.

“Threshold injury”

1. [2]

   The motor accident involving the appellant occurred in 2018 and hence the Motor Accident Injuries Act applies. In contrast to its predecessor (the Motor Accidents Compensation Act 1999 (NSW)), “threshold injury” is an important concept under the current regime. A claimant whose injuries are confined to threshold injuries is subject to limits on payments of weekly compensation (s 3.11) and treatment and care (s 3.28) and is not entitled to damages (s 4.4).

2. [3]

   Threshold injury is defined in s 1.6 as follows:

3. [4]

   The power to include particular psychiatric illnesses in s 1.6(4)(b) was exercised by reg 4 of the Motor Accidents Injuries Regulation 2017 (NSW) which provides that “acute stress disorder” and “adjustment disorder” are included as a threshold injury for the purposes of the Act, as those terms are defined in the Diagnostic and Statistical Manual of Mental Disorders (DSM-V) published by the American Psychiatric Association in May 2013. Regulation 4 has been in force (and remains in force) at all relevant times: see s 11 of the Subordinate Legislation Act 1989 (NSW) and the Subordinate Legislation (Postponement of Repeal) Order 2025.

4. [5]

   Accordingly, in order for a psychological or psychiatric injury not to be a threshold injury, it must be a recognised psychiatric illness other than “acute stress disorder” and “adjustment disorder” as those terms are defined in DSM-V.

Leave to appeal

1. [6]

   In support of a grant of leave, Mr Kewin adduced uncontradicted evidence from his solicitor to the effect that this was the first occasion in which the Personal Injury Commission had rejected a claim based on the failure to provide evidence establishing the existence of a non-threshold psychiatric injury, but that it now routinely took that course. In light of that evidence, it is clear that the decision gives rise to a question of general public importance, transcending the dispute between the particular parties, such that there should be a grant of leave: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; State of New South Wales v Exton [2017] NSWCA 294 at [47]; Kassam v Hazzard; Henry v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299 at [25] and [34]. In this Court there was a concurrent hearing, and no part of the oral submissions were directed to the grant of leave as opposed to the substance of the matter. I shall refer to Mr Kewin as the “appellant”.

Factual and procedural background

1. [7]

   The underlying facts are uncontroversial and concise. The appellant lodged applications for common law damages and personal injury benefits in July and early November 2021, stemming from a motor accident on 23 November 2018. Most of the claimed injuries were physical, but they included a psychological or psychiatric injury. On 7 May 2024, the insurer determined that the entirety of the claimed injuries were “threshold injuries” and therefore denied liability. The appellant sought and obtained internal review by the insurer of its decision. The review confirmed that none of the claimed physical injuries was other than a threshold injury and that aspect of its decision has not subsequently been challenged.

2. [8]

   In relation to the claimed psychological or psychiatric injuries, the appellant had provided three pieces of supporting evidence.

   1. (1)

      The first was a record of a general practitioner following a consultation on 30 January 2020 stating that “referral to psychologist needed having recurring dreams about car accidents”;

   2. (2)

      The second was a medico-legal report from an orthopaedic surgeon (Dr Bodel) which included the following passage:

   3. (3)

      The third was a number of certificate of fitness for work all of which stated that the appellant was unfit for work and also stated in a box headed “referral to another health service or rehabilitation provider” the words “physiotherapy and awaiting to see psychologist”.

3. [9]

   In short, there was a claim of non-threshold psychological or psychiatric injury, but no evidence from any qualified medical expert of that injury, nor even any statement of what the recognised psychiatric illness was.

4. [10]

   In its internal review, the insurer stated:

5. [11]

   On 30 July 2024, the appellant lodged an application for medical assessment with the Personal Injury Commission. The matter in dispute was defined as “threshold injury” and its nature was described as “psychiatric condition” and “depression, shock, anxiety”. The application was accompanied by a bundle of material, which in so far as it was directed to the claimed psychiatric injury, included only the three classes of evidence identified above.

6. [12]

   On 2 September 2024, there was a communication from the Personal Injury Commission as follows:

7. [13]

   On the following day, 3 September 2024, the appellant’s solicitors responded:

8. [14]

   On 13 September 2024, an officer described as Team Leader – Medical Disputes responded on behalf of the Commission as follows:

9. [15]

   That response was the decision which is the subject of proceedings in the nature of judicial review subsequently commenced in the Common Law Division.

Applicable legislative regime

1. [16]

   The objects of the Motor Accidents Injuries Act include in s 1.3(2)(g) “to encourage the early resolution of motor accident claims and the quick, cost-effective and just resolution of disputes”.

2. [17]

   An important change between the Motor Accident Injuries Act and its predecessor, the Motor Accidents Compensation Act 1999 (NSW), was that if the only injuries sustained were “threshold injuries” (formerly known as “minor injuries”, until amendments made by the Motor Accident Injuries Amendment Act 2022 (NSW)), then the scheme of the Act was to limit or deny compensation and entitlement to damages. In addition to the prohibition upon damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by a motor accident is greater than 10% (s 4.11), as noted above there is now a prohibition against an award for any damages if the person’s only injuries for the motor accident were threshold injuries (s 4.4). Further, payments of compensation and treatment for care expenses cease no later than 52 weeks after the motor accident if the person’s only injuries resulting from the motor accident were threshold injuries ss 3.11 and 3.28 (at the time of the appellant’s accident, it was 26 weeks, with the amendment being effected by item 16 of Schedule 1 of the Motor Accident Injuries Amendment Act 2022).

3. [18]

   One purpose of the Motor Accident Injuries Act was to cut back on the large volume and relatively expensive class of claims for relatively minor personal injury, in order to reduce the costs of the scheme. That is apparent not merely from the concept of “minor injuries” (now renamed “threshold injuries”) to which the consequences in ss 3.11, 3.28 and 4.4 attached. It is also apparent from the extrinsic material accompanying the legislation. The Minister who introduced the bill said:

4. [19]

   The appellant emphasised a further consequence of that change. The introduction of the category of “threshold injuries” for which no or only limited benefits and compensation are available has given rise to a new category of dispute, namely, whether claimed injuries are or are not threshold injuries. That is in turn reflected in cl 2 of schedule 2 of the Act, which defines “medical assessment matters” to include not merely the degree of permanent impairment of a person, including whether it is greater than a particular percentage such as 10% and the degree of impairment which has resulted from the injury caused by the motor accident, but also “whether the injury caused by the accident is a threshold injury for the purposes of the act” (cl 2(e) of schedule 2).

5. [20]

   Following a decision by an insurer, s 7.9 authorises the claimant to request an internal review about a “medical assessment matter”. Internal review is ordinarily required before there may be a referral for assessment: s 7.19(1). (There are exceptions but none is applicable here.) Section 7.17 defines a “medical dispute” to mean relevantly a “dispute between a claimant and insurer about a medical assessment matter”. In Mandoukas v Allianz Australia Insurance [2024] NSWCA 71 at [73], it was said:

6. [21]

   One of the provisions to which reference was made in that passage was the obligation upon the claimant “to promptly do all things reasonably necessary to facilitate the resolution of any dispute involving the claim” in s 6.3(2)(c).

7. [22]

   The critical provision for present purposes is s 7.20, which provides as follows:

8. [23]

   Section 7.20 is the gateway to the regime to resolve disputes by assessment. The regime involves assessment by a medical assessor, who is to give a certificate which is prima facie evidence of the degree of impairment of earning capacity, and conclusive evidence of any other matter certified: s 7.23. Provision is made for the appointment, qualifications, functions and control of medical assessors under Division 4.1 of Part 4 of the Personal Injury Commission Act 2020 (NSW). There is only limited scope for a court to “reject” a medical assessor’s certificate (speaking generally, the court may do so on the ground of procedural unfairness and only if admission of the certificate would cause substantial injustice: see s 7.23). Provision is made for further assessment in certain cases and for review by a review panel: s 7.26. It is sufficient for present purposes to observe that the result is that the matters determined by assessment will to a significant extent supplant determination of those issues by a court when and if a claim for damages is made. Hence the significance of s 7.20 which permits either a claimant or an insurer to apply for the referral of a medical dispute about a claim to assessment.

9. [24]

   In the present case, the appellant claimed to be entitled to a referral of the medical dispute for assessment pursuant to s 7.20(1)(a) and (2). The dispute was not about the degree of permanent impairment, and so the discretionary power to refuse to accept the referral for insufficient evidence in s 7.20(3) was not available. According to the appellant, the mandatory words in s 7.20(2) (“is to arrange”) required the President to arrange for medical assessment, and then a medical assessor would determine if the appellant had sustained a recognised psychiatric illness which was not adjustment disorder or acute stress disorder, if necessary requesting further information from him pursuant to s 7.20(4). For reasons that I shall explain below, I do not accept that is how the section works.

10. [25]

    Unsurprisingly, in a high-volume administrative regime to resolve disputes between claimants and insurers, there are procedural requirements, which are summarised below.

11. [26]

    Section 21 of the Personal Injury Commission Act 2020 (NSW) authorises the President to give procedural directions relating to the practice and procedures to be followed in proceedings before the Commission or medical assessors.

12. [27]

    “Procedural direction PIC6 – Medical Assessments” was in force at the relevant time. It stated in cl 1(d) that it provided information about applying for and the assessment of, inter alia, “threshold injury disputes under schedule 2(e) of the 2017 Act.”

13. [28]

    Clause 3 authorised the President or a member before whom a matter was listed to excuse a party from complying with any aspect of a direction.

14. [29]

    Clause 5 provided that the direction was to be “read with and subject to any provision of … the enabling legislation”, and that included the Motor Accident Injuries Act.

15. [30]

    Clauses 7, 8, 9, 10 and 11 imposed administrative requirements for the lodgement of applications and cl 12 entitled the President to refuse to accept, seal or issue a non-compliant document. The requirements included using and complying with the approved forms, all documents being indexed and paginated, and not exceeding 500 pages unless an “Application to Lodge Additional Documents” form was completed.

16. [31]

    Clauses 14-19 were headed “Motor Accidents Division”. Clause 15 provided that a medical dispute about a decision of an insurer may not be referred as an assessment until there had either been an internal review or the insurer had declined to conduct a review. Clauses 16, 17 and 18 were as follows:

17. [32]

    Clause 27 was as follows:

18. [33]

    Section 21(4) of the Personal Injury Commission Act imposes an obligation upon each member of the Commission, medical assessors and parties to the proceedings and their representatives to comply with any applicable procedural direction.

19. [34]

    The Personal Injury Commission Act also authorises the making of rules (which are disallowable instruments) by the Rule Committee: ss 19 and 20. The Personal Injury Commission Rules 2021 (NSW) defined “applicable proceedings” to include “medical assessment proceedings”, and defined the latter term to be proceedings before a medical assessor under enabling legislation: rr 5(2) and 5(5). “Enabling legislation” includes the Motor Accidents Injuries Act: see Personal Injury Commission Act, s 5.

20. [35]

    Rule 66 provided that:

21. [36]

    Rule 67(1)(a), in the form it took when the appellant’s application was lodged, required a party to lodge and serve on the other parties “the information and documents relevant to the resolution of the real issues in the proceedings on which the party proposes to rely that (i) are in that party’s possession and (ii) that have not been lodged in the current proceedings”.

22. [37]

    It is clear enough that rr 66 and 67 proceed on the basis that while there may be a dispute between a claimant and an insurer, “proceedings” will only be commenced when an appropriate originating process is lodged with the Commission. That is consistent with the way the term “proceedings” is used in the statutes in this area. When the Motor Accident Injuries Act is referring to litigation in a court, it may refer to “court proceedings” (see eg ss 2.31(3), 6.27, 6.29, 6.30, 6.31, 6.32, etc) but sometimes the word “proceedings” is used to include proceedings in the Commission (thus s 2.36(3) confers authority on a licensed insurer to deal with a claim “and any proceedings relating to the claim”, ss 4.8 and 4.12 refer to “proceedings before a court or the Commission” while the review by a review panel under s 7.15 is to be within the time permitted “for the kind of proceedings in accordance with the Commission rules”). Likewise, Part 5 of the Personal Injury Commission Act proceeds on the basis that there are “proceedings” in the Commission, hence the headings to Divisions 5.2 (“Commencement of Proceedings”), 5.3 (“Participation in Proceedings”), 5.4 (“Conduct of Proceedings”) and 5.5 (“Determination of Issues and Proceedings”).

Consideration

1. [38]

   The submissions before the primary judge were mostly directed to the question whether for the purposes of s 7.20 the existence of a medical dispute was a jurisdictional fact. The primary judge, appropriately, addressed and resolved those submissions, concluding, consistently with authority, that it was not. The principal ground of appeal challenged that conclusion. Counsel introduced the issue as follows:

2. [39]

   The essence of the submission was that it was not necessary for the claimant to provide evidence of injury, so long as there was a dispute about that injury, because then (a) the President was under an obligation to refer the matter to assessment, and (b) if appropriate, the assessor could seek further information. Counsel candidly acknowledged the effect of the applicant’s submission:

3. [40]

   I do not accept the appellant’s submissions, and I shall explain why below. However, it is better to take a broader approach, lest it be thought that the limited challenge made by the appellant has left in place a decision whose validity was capable of challenge but not on the basis advanced by him.

4. [41]

   The starting point in proceedings in the nature of judicial review of the exercise of executive power is to identify the decision and power (or powers) capable of sustaining the decision.

5. [42]

   The decision challenged by the appellant was the decision to decline to take any step to advance the application for referral to assessment. It was anticipated on 2 September 2024 and made on 13 September 2024. It was expressed in neutral, informal terms: “Due to lack of evidence the psychiatric dispute will not be proceeding”.

6. [43]

   The applicant’s submission was not merely that the existence of a medical dispute was a jurisdictional fact. It was also that the President’s delegate was to be taken to have determined that there was no medical dispute, and on that basis was not required by s 7.20(2) to arrange for a referral.

7. [44]

   The appellant relied upon a submission (which in substance invokes the expressio unius maxim) based upon the express power to refuse to accept a referral in the case of a dispute concerning the degree of permanent impairment where there was insufficient evidence in s 7.20(3). The presence of that express power was said to tell against there having been any corresponding power to refuse to accept a referral on the basis of insufficient evidence concerning a dispute about threshold injury.

8. [45]

   I do not accept that the appellant has correctly characterised the President’s delegate’s decision. Nor do I not accept the construction of s 7.20 on which the appellant’s submissions rest. Further, I do not think that an analysis in terms of jurisdictional fact is productive or indeed relevant.

9. [46]

   In the present case, it may be seen that the President’s delegate’s communication of 2 September 2024 referring to the absence of evidence concerning the psychological injury and whether it was a non-threshold injury requesting that evidence be provided by 12 September 2024 corresponded to the deferral for a period of time contemplated by cl 27(a) of Procedural Direction 6. The insistence that there be medical evidence concerning whether claimed psychological or psychiatric injury was a non-threshold injury is consistent with cl 17 of the Procedural Direction.

10. [47]

    The parties’ submissions were framed in terms of jurisdictional error in failing to find that there was a medical dispute. But that is not a natural way of reading the Team Leader’s request for evidence and dismissal of the application for referral. Instead, the natural way of reading it is that the President’s delegate fully appreciated that while there was an unresolved medical dispute between the claimant and insurer, it was not sufficiently evidenced to comply with cl 17 of Procedural Direction 6 and therefore should not be accepted.

11. [48]

    Clause 17 provides that where the application is whether the injury is a threshold injury, “the applicant party must produce with the application the evidence that demonstrates the injury status as asserted by them, namely that the claimant has suffered a threshold injury or has not suffered a threshold injury within the meaning of section 1.6 of the 2017 Act”. The appellant was the “applicant party” and was claiming that his psychiatric injury was not a threshold injury. That involved establishing that the injury was a recognised psychiatric illness and not “acute adjustment disorder” or “adjustment disorder” within the meaning of DSM-V. After all, cl 17 bound both the claimant and the President’s delegate.

12. [49]

    Further, the President’s delegate also advised that a new application could be lodged “with sufficient and compliant evidence once a confirmed diagnosis of psychological injury has been sought and obtained”. That advice is simultaneously (a) inconsistent with a decision that there is no medical dispute, and (b) supportive of the conclusion that no steps would be taken to arrange for the dispute to go to assessment because the claimant’s application was insufficiently supported by evidence.

13. [50]

    All of this tells against treating what the President’s delegate did as determining that there was no medical dispute and declining to make the referral on that basis.

14. [51]

    A decision in the exercise of executive power may be characterised in more than one way. However, I do not consider that the characterisation of what occurred for which the appellant contends is available. There is nothing to suggest that the President’s delegate considered that there was no medical dispute, as opposed to proceeding on the basis that the medical dispute sought to be referred for assessment was a dispute which was unsupported by sufficient evidence.

15. [52]

    It was open to the President’s delegate to form the opinion that no evidence demonstrating that he had not suffered a threshold injury had been supplied. It was thereafter open to advise the appellant of that fact, and grant a further opportunity to him to do so. When that did not occur, it was open to form the view that cl 17 of the Procedural Direction had not been satisfied. Clause 17 was a procedural requirement applicable to the appellant’s application within the meaning of r 66(2)(c), binding on the delegate and the claimant, and r 66(3) authorised the President to refuse to accept a non-complying application.

16. [53]

    Turning now to s 7.20, the appellant’s submissions do not attend to important distinctions in the subsections, which differentiate “arranging” and “refusing to accept”.

    1. (1)

       Subsection (1) entitles various persons to refer a dispute to the President. It makes no explicit provision for what the President is to do when a dispute has been referred.

    2. (2)

       Subsections (2), (2A) and (2B) use the verb “arrange”. That refers to a power to allocate a particular dispute to one or more medical assessors; no doubt the President’s discretion involved identifying assessors who had appropriate expertise, and availability and were not conflicted. The appellant’s submissions seized on the fact that subs (2) is expressed in terms which impose an obligation. So much may be accepted (see for example Bay Simmer Investments Pty Ltd v State of New South Wales (2017) 222 LGERA 286; [2017] NSWCA 135 at [77]). However, that overlooks how the section operates as a whole.

    3. (3)

       It is axiomatic that s 7.20 must be read as a whole. That involves giving it a legal meaning which prima facie respects the different verbs “arrange” in subs (2), (2A) and (2B) and “accept” in subs (3). It is clear that before the assessment of a medical dispute is to be arranged, the application must first be accepted. That is to say, subs (3) confirms that there must be an intermediate step between referral of a medical dispute and arranging for it to be dealt with by a medical assessor. The intermediate step is that the President can refuse to accept the application for referral, at least if it is about the degree of impairment and the President is of the view there is insufficient evidence.

    4. (4)

       The dispute between the appellant and the insurer is not about the degree of permanent impairment, and thus s 7.20(3) is inapplicable. But s 7.20(3) makes it clear that there will be at least some medical disputes that can be refused by the President. There is nothing to suggest that the distinction between accepting a referral and arranging for its assessment is confined to medical disputes concerning the degree of permanent impairment.

17. [54]

    Ground 2 of the appeal is that the Procedural Direction was inconsistent with s 7.20 of the Act. Nothing was said in support of this in oral submissions, save that it was consequential upon the success of ground 1. But there is no inconsistency between an obligation upon the President (or the President’s delegate) to refer a dispute to medical assessment, and a power to refuse to accept an application if it does not comply with procedural requirements, once it is appreciated that acceptance of an application is an anterior step to arranging for its assessment.

18. [55]

    That conclusion involves no impermissible reading down of the statute by reference to the regulations and rules of the Procedural Direction. It rests instead upon the distinction present in the text of s 7.20 between refusing to accept an application and arranging for it to be referred, coupled with the fact that the statute contemplates that many matters of detail in the statutory regime are left unstated.

19. [56]

    The appellant’s argument to the contrary in substance reads s 7.20(2) as an obligation to accept a referred medical dispute, rather than an obligation to arrange for a dispute to be dealt with by a medical assessor. But before the President has occasion to arrange a dispute which has been referred, it must first be accepted.

20. [57]

    Insofar as the appellant’s submission is based on s 7.20(3), it is an expressio unius argument. Such arguments are seldom strong: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49 at [34]. This one is no exception. It is most unlikely to be the case that, say, a claimant or an insurer can ignore procedural requirements and be entitled to insist that the President arrange a medical assessor to deal with it. At the very least, the President may be expected to be entitled to refuse to accept a dispute which does not comply – perhaps because it is out of time, or because the claimant is under an incapacity and there is no appointed representative (see s 7.47) or because it is accompanied by thousands of pages many of which are irrelevant, or because it is a mere assertion of injury with insufficient particulars to identify what the nature of the claim and therefore the dispute is. It would be close to absurd if s 7.20(3) were exhaustive of the bases on which the President could refuse to accept a referral, which is to say, it would be close to absurd if palpably deficient or non-compliant applications had to be referred because they did not involve a dispute about the degree of permanent impairment.

21. [58]

    The appellant’s construction would also be contrary to the purpose of the legislation, which includes facilitating the resolution of disputes between claimants and insurers before they are referred to assessment. That is reflected in the requirement (subject to exceptions) for there to be internal review of an insurer’s decision, as well as the object of encouraging “the quick, cost effective and just resolution of disputes” in s 1.3(2)(g), and the obligation upon the claimant “to promptly do all things reasonably necessary to facilitate the resolution of any dispute involving the claim” in s 6.3(2)(c). This Court is required to prefer a construction which promotes the statutory purpose: Interpretation Act 1987 (NSW), s 33.

22. [59]

    In the present case, the claimant claims to have suffered a recognised psychiatric illness which is not adjustment disorder or acute stress disorder. Yet he does not identify what that illness is, and he claims to be entitled not to have to provide evidence of a diagnosis (save for the assertion by an orthopaedic surgeon). It is scarcely surprising that the insurer does not accept the unsubstantiated claim. The result, practically speaking, is that an unresolved dispute is inevitable. It is very difficult to reconcile the obligation upon the appellant imposed by s 6.3(2)(c) with the stance taken in this litigation.

23. [60]

    The appellant’s repeated response, when these difficulties were pointed out in argument, was that such a construction would produce harsh outcomes because, so it was said, there would be claimants who could not afford to obtain psychological or psychiatric evidence.

24. [61]

    There are at least two obstacles to accepting that submission. The first is that it is an argument based on consequential reasoning, rather than a submission which engages with the statutory text, as was pointed out during the hearing:

25. [62]

    The second is that it is difficult to see what is “harsh” about the construction. It is to be borne steadily in mind that the referral of disputes to medical assessment is an aspect of a regulatory regime to resolve disputes efficiently and outside court. The regime insists that before a dispute is referred, there must first be a decision by the insurer and an internal review, and it requires claimants to do all things reasonably necessary to facilitate the resolution of disputes. There is nothing unusual, let alone harsh, in insisting that a claimant who wishes to receive compensation or damages for a psychological injury first provide some evidence (as opposed to an assertion) that demonstrates that injury to the insurer. Until some evidence is supplied demonstrating that a claimant has sustained an injury which is not a threshold injury, there is no sound basis for the insurer to accept the claim. Far from being harsh, the construction for which the appellant contends would subvert the legislative purpose of facilitating the resolution of disputes between claimants and insurers before the delay and expense of assessment occurs.

26. [63]

    Further, it is asserted that to require an application to be accompanied by evidence would deny claimants access to the scheme and that would be harsh. True it is that some more speculative claims may not proceed. But these considerations expose that in truth the claimed harshness is no more and no less than that the costs are not borne by insurers (and ultimately by drivers), through the levies that fund the scheme. It is difficult to conclude that there is any relevant harshness if (a) the claimant is unable or unwilling to pay for evidence supporting his or her claimed psychiatric injury, and (b) no one else is prepared to fund it because funders form the view that it is too speculative. Put differently, it is difficult to conclude that the costs in such marginal cases are costs which should be borne by the scheme as a whole, or that the policy choice that that not occur is “harsh”.

27. [64]

    To summarise, an essential premise of the appellant’s argument is that the President’s delegate had no choice but to refer the dispute. That premise is not made out. That is dispositive of the appeal.

28. [65]

    The joint judgment in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 at [28] stated:

29. [66]

    In Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43 at [43] the High Court noted that the term could be used imprecisely, and gave the following description:

30. [67]

    That was the sense in which the appellant sought to invoke that term in this litigation. He submitted that if there were a medical dispute, then it had to be referred to assessment, and the President’s delegate’s decision refusing to do so was wrong in law.

31. [68]

    Ordinarily if the precondition to the exercise of a power is satisfied by the opinion of the donee of the power, a submission based on jurisdictional fact will fail, and a litigant challenging the validity of a decision must impugn the formation of the opinion. On the other hand, if the exercise of a power is only available if the precondition exists as a matter of fact, then the precondition will be a jurisdictional fact and a court may in judicial review proceedings determine whether the precondition existed, including on evidence not before the donee of the power: see, for example, Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8 at [36], [41] and [94]; Smith v Blanch (2025) 118 NSWLR 70; [2025] NSWCA 188 at [8]. It is well settled that whether or not a precondition to the exercise of power is a jurisdictional fact is a question of statutory construction: see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [60].

32. [69]

    Turning to the appellant’s submissions, either the existence of a medical dispute is a jurisdictional fact for the purposes of the implied power to refuse to refer a dispute to assessment or it is not. (As it happens, there is authority that it is not, but that may for the moment be put to one side). If as the appellant submits it is a jurisdictional fact, the essential step in his argument is that the President’s delegate wrongly determined that there was no medical dispute and on that basis acted contrary to the Act, because instead of referring the dispute to medical assessment, he dismissed the application.

33. [70]

    The appellant came close to accepting that nothing turned on the submissions based on jurisdictional fact. His submissions proceeded as follows. It was said that (a) s 7.20 carried with it an implied power to dismiss an application to refer a medical dispute only in circumstances that there was no medical dispute, (b) the existence of a medical dispute was a jurisdictional fact, (c) the President’s delegate had erred in finding that there was no dispute and on that basis dismissing the application, and (d) it was open to this Court to conclude that there was a dispute and set aside the dismissal. That emerges from this exchange:

34. [71]

    It is for that reason that I have commenced these reasons with an analysis of whether s 7.20 obliged the President to make the reference, and have hitherto delayed addressing the submissions invoking jurisdictional fact.

35. [72]

    The appellant’s submissions in the Common Law Division and in this Court focussed upon the proposition that whether or not there was a “medical dispute” was a jurisdictional fact. The submission was an unusual one. Ordinarily, whether or not some issue is a “jurisdictional fact” is a legal conclusion on the construction of the statute designed to permit a Court to review the finding of jurisdictional fact, including perhaps on different evidence than what had been before the decision maker. Indeed, the appellant disavowed an ability to rely on facts not before the President’s delegate, as seen in the following exchange:

36. [73]

    As was also pointed out in argument, if as a matter of construction the valid exercise of a power is conditioned by something which is a jurisdictional fact, then it will ordinarily follow, again as a matter of construction, that that precondition may be challenged in judicial review proceedings on different evidence. The appellant’s submission is markedly at odds with the ordinary concept of jurisdictional fact.

37. [74]

    In the present case, the appellant does not seek to rely on any different evidence. In the present case, the appellant submitted that irrespective of whether or not there was medical evidence supporting the appellant’s contention that he suffered from a non-threshold psychological injury, the President (by his delegate) was obliged under s 7.20(2) to arrange for the dispute to be dealt with by medical assessment. The appellant maintained that thereafter, pursuant to the powers conferred upon medical assessors to request medical information which was reasonably required for the purpose of the assessment, reports of the psychological injury could be obtained. But the appellant denied that it was necessary for such evidence to accompany the application for referral, and insisted that there was a dispute which mandated a referral.

38. [75]

    The primary judge dismissed this aspect of the appellant’s submissions on the basis that her Honour was bound by what this Court had held in Insurance Australia Ltd t/as NRMA Insurance v Scott (2016) 92 NSWLR 741; [2016] NSWCA 138 concerning jurisdictional error. In this Court, an attempt was made to distinguish that reasoning. But for the reasons I have already given, this aspect of the case was misconceived. The issue is not whether a medical dispute is or is not a jurisdictional fact, but instead whether it was open to the President’s delegate to dismiss the application because it was unsupported by evidence. It is not necessary to address this further.

39. [76]

    For completeness, I should address the additional submissions on behalf of the insurer. These too departed from the matters on which the validity of the President’s delegate’s decision turns.

40. [77]

    The insurer contended that there was not in fact any dispute at all, because not only did there have to be a (claimed) injury, but also the injury had to fall within the scope of the definitions of the Act:

41. [78]

    The insurer said that although it appeared that the application had been refused because it was unaccompanied by evidence, it was not possible to look inside the mind of the President’s delegate, and it may have been that in fact it had been determined that there was no medical dispute within the meaning of that term in the Act. It was said that in calling for further evidence to support the claimed psychiatric injury, “the delegate was getting to the heart of the issue of whether or not a dispute existed in the first place, albeit framed in terms of whether there is evidence, but equally it could be as to the existence in fact of that dispute”.

42. [79]

    It was also said that it was necessary to ask if the application had been “validly” made:

43. [80]

    Substantially the same submission was advanced in terms of the non-existence of a “valid” proceeding. It was said:

44. [81]

    I am doubtful of this approach. A “medical dispute” is defined to mean, relevantly, “a dispute between a claimant and an insurer about a medical assessment matter”, which in turn picks up the matters declared in Schedule 2, here, whether the injury caused by the motor accident is a “threshold injury”. The appellant claimed his injury was not a threshold injury. He did not particularise why that was so, nor did he identify the recognised psychiatric illness from which he claimed to suffer. But that did not mean that there was no dispute – plainly there was and is a dispute between claimant and insurer, hence this litigation – and I fail to see why that extant dispute is not a “medical dispute” within the meaning of the Act. I see no reason to give a strained meaning to “medical dispute” so as to make the provision of sufficient articulation or evidence an element of the dispute’s existence. I can also see that doing so might also have the effect of imposing undue burdens and technicalities on the operation of the scheme.

45. [82]

    Further, it is problematic, to say the least, to regard proceedings as “valid” or “invalid”. In Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32 at [13] the High Court referred to there being “a very real difficulty in characterising proceedings as ‘invalid’”. That statement was addressed to judicial proceedings, and need not necessarily extend to the administrative regime under the Act, but analogous difficulties apply as were elaborated at [13]-[16], in particular, the Commission must have authority to respond to the application which has been made to it, and that is apt to be by dismissing it for some procedural or substantive defect, rather than noting that it is “invalid”.

46. [83]

    The insurer also advanced, relatively briefly, submissions in support of a notice of contention, to the effect that there was no decision which would support relief under s 69 of the Supreme Court Act (NSW), or that relief would be refused in the exercise of discretion. It is not necessary to address the notice of contention in light of the conclusions reached above.

Orders

1. [84]

   For those reasons the application must be dismissed. I have concluded that the appellant’s submissions are bad in law, and also that the underlying premise is not made out. Although I am doubtful of a number of the insurer’s submissions, I see no reason to depart from the general rule in UCPR r 42.1.

2. [85]

   For those reasons, I propose these orders:

3. [86]

   KIRK JA: I agree with Leeming JA.

4. [87]

   GRIFFITHS AJA: I agree with Leeming JA.