Khanna v Insurance Australia Limited

1. [1]

   THE COURT: This is an application for leave to appeal by Mr Khanna from a decision of Faulkner J in Khanna v Insurance Australia Limited [2025] NSWSC 33. For the reasons that follow, leave to appeal should be refused.

Background

1. [2]

   The following summary of the background is drawn from the reasons of the primary judge, in circumstances where no complaint was made about the description of such matters by the primary judge and the underlying material was not put before this Court. Two separate proceedings were heard and determined together by the primary judge. Each proceeding was an application for judicial review made under s 69 of the Supreme Court Act 1970 (NSW). The primary judge found that no jurisdictional error or error of law on the face of the record was established.

2. [3]

   On 17 August 2016, the applicant was sitting in his stationary car when another car ran into him. The respondent is the third party insurer of the other car (“the Insurer”). The Insurer accepted that the accident occurred and that the driver of the other car was at fault.

3. [4]

   A dispute within the meaning of the Motor Accidents Compensation Act 1999 (NSW) (“MAC Act”) arose when the applicant claimed that the injuries which he suffered included injuries which were not the obvious consequences of the car crash. Ultimately, the disputed injuries were in four categories, namely:

   1. (1)

      exacerbation of the applicant’s pre-existing diabetes condition;

   2. (2)

      exacerbation of the applicant’s pre-existing cardiac condition;

   3. (3)

      specific physical injuries, namely chest, head, thoracic and lumbar spine and right shoulder and arm injuries; and

   4. (4)

      psychiatric conditions.

4. [5]

   In the case of the alleged exacerbation of the applicant’s pre-existing diabetes condition, the medical assessment matters were referred to a Medical Assessor, Dr Carter, who certified a 2% permanent impairment attributable to the exacerbation of the diabetes condition.

5. [6]

   In the case of the alleged exacerbation of the applicant’s pre-existing cardiac condition, the medical assessment matters were referred to Dr Herman. Dr Herman undertook an assessment and gave a Certificate on 6 September 2022 in which he concluded that the accident did not cause any exacerbation of the applicant’s cardiac condition. Dr Herman therefore certified that:

   1. (1)

      for the purposes of ss 58(1)(a) and (b) of the MAC Act, treatment for the applicant’s cardiac condition was not reasonable and necessary treatment which related to injuries caused by the motor accident; and

   2. (2)

      for the purposes of s 58(1)(d), an assessment of the degree of permanent impairment for the cardiac condition was not required.

6. [7]

   In the case of the alleged specific physical injuries, namely chest, head, thoracic and lumbar spine and right shoulder and arm injuries, the medical assessment matters were referred to a Medical Assessor, Dr Cameron, who concluded that none of the claimed injuries were caused by the accident other than some soft tissue injuries. Dr Cameron certified that:

   1. (1)

      for the purposes of ss 58(1)(a) and (b) of the MAC Act, apart from some ongoing physiotherapy, none of the applicant’s claimed treatment was reasonable and necessary treatment which related to injuries caused by the motor accident; and

   2. (2)

      for the purposes of s 58(1)(d), the degree of permanent impairment of the applicant as a result of physical injuries caused by the motor accident is 2%.

7. [8]

   On 27 September 2022 Dr Cameron, Dr Carter and Dr Herman issued a combined Certificate in which they certified that the degree of permanent impairment to the applicant from injuries caused by the motor accident is 4%.

8. [9]

   In the case of the alleged psychiatric conditions, the medical assessment matters were referred to Dr Young who undertook an assessment. Dr Young gave a Certificate on 25 July 2022 in which he concluded that:

9. [10]

   Each of the Certificates was the subject of an application for review under s 63(1) of the MAC Act. The Insurer applied for a review of the Certificate issued by Dr Carter to the extent that Dr Carter concluded that some exacerbation of the diabetes condition was caused by the accident for which subsequent medication was reasonable and necessary. The applicant applied for a review of all the Certificates. The President of the Personal Injury Commission decided to refer all the Certificates to Review Panels. The President constituted a different Review Panel for each of the four categories of disputed injuries. As required by s 63(3), each Review Panel was constituted by three persons chosen by the President, namely two medical assessors and one legal member of the Commission. All four Review Panels had the same member of the Commission. There was some overlap in the medical membership of the three Review Panels for the applicant’s alleged diabetes condition, cardiac condition and physical injuries. The Review Panel for the applicant’s alleged psychiatric condition had completely different medical membership.

10. [11]

    The Review Panels each conducted a fresh assessment of all the matters previously assessed by the individual medical assessors: s 63(3A) of the MAC Act.

11. [12]

    The three Review Panels tasked with assessing the applicant’s alleged physical injuries determined that they would undertake a single physical re-examination of the applicant. They selected those of their members who they considered had the specific expertise in the medical conditions which were the subject of the disputes. On 19 April 2023, the applicant was re-examined by the selected members.

12. [13]

    In May 2023, the Review Panels adopted a procedure to ensure that the applicant and the Insurer had an opportunity to identify and consider the evidence which each Review Panel considered relevant to its assessment. The Review Panels prepared a document entitled “Evidence Review” which set out in detail all the evidence which the Review Panels would consider in undertaking the fresh assessments. It is an extensive document. It runs to 59 pages with detailed references to the applicant’s medical records and history. On 15 May 2023 the Review Panels provided the Evidence Review to the applicant and the Insurer. Each party was directed to provide comments, including additional information, which that party wanted the Review Panels to consider. The applicant subsequently provided 14 pages of comments to the Review Panels. The Review Panels then conducted their assessments.

13. [14]

    On 22 June 2023, the Review Panel which assessed the applicant’s diabetes condition issued a Certificate. The Panel found that the exacerbation of the applicant’s diabetes condition was not caused by the motor accident on 17 August 2016. The Review Panel revoked the Certificate given by Dr Carter on 3 December 2021. In its stead, the Review Panel certified that none of the disputed diabetes treatment relates to injuries caused by the accident. The Review Panel’s Certificate was accompanied by a 27 page Statement of Reasons. The Review Panel analysed the evidence and concluded that “the changes in [the applicant’s] diabetes were no more than the expected progression with time, of his underlying pre-existing condition”. Specific evidence is referred to and explained, including the applicant’s HbA1c levels as recorded periodically in the applicant’s primary health records between February 2010 and October 2022. Annexure A to the Review Panel’s Statement of Reasons is the 59 page Evidence Review document which the Review Panel had previously provided to the parties and about which the parties’ comments were sought. Annexure B is a 7 page summary of the examination of the applicant which occurred on 19 April 2023.

14. [15]

    On 22 June 2023, the Review Panel which assessed the applicant’s specific physical injuries issued a Certificate. The Review Panel essentially found that the applicant’s specific injuries were not caused by the motor accident other than in minor, temporary respects. For the minor injuries which were caused by the accident, no treatment was reasonable and necessary other than physiotherapy for a limited period which had concluded. To give effect to that conclusion, the Review Panel revoked the Certificate previously given by Dr Cameron and issued a Certificate in which it certified that there is no ongoing treatment which related to physical injuries caused by the accident and that the degree of the applicant’s permanent impairment resulting from physical injuries caused by the accident was less than 10%. This Certificate was accompanied by a 29 page Statement of Reasons, including an extensive analysis of the evidence relating to each of the applicant’s claimed physical injuries. The Review Panel explained why it reached the conclusion which it did for each physical injury. The same Annexure A and Annexure B as were attached to the diabetes certificate were attached.

15. [16]

    On 30 June 2023, the Review Panel which assessed the applicant’s cardiac condition issued a Certificate. The Panel found that the exacerbation of the applicant’s cardiac condition was not caused by the accident. The Review Panel confirmed the Certificate previously given by Dr Herman. The Review Panel also issued a Statement of Reasons explaining why it concluded as it did.

16. [17]

    On 20 September 2023, the Review Panel which assessed the applicant’s alleged psychiatric injuries undertook its own examination of the applicant. On 29 November 2023, the Review Panel issued a Certificate together with 31 pages of reasons. The Panel found that the applicant’s psychiatric conditions were not caused by the motor accident. In reaching that conclusion, the Panel found that the accident did not directly cause the applicant’s depression and anxiety. The Panel accepted that the depression and anxiety may have been caused by the applicant’s cardiac condition, but concluded that the accident did not cause the cardiac condition, in conformity with the Review Panel which assessed that specific condition.

Proceedings before the primary judge

1. [18]

   On 18 September 2023 the applicant filed a Summons by which proceedings 2023/305474 were commenced. Various subsequent iterations of the summons were filed. The primary judge recorded:

2. [19]

   Before the primary judge, the applicant sought to lead a great deal of affidavit evidence from himself and his wife. The primary judge said:

3. [20]

   On 8 February 2024, the applicant commenced a second set of proceedings against the Insurer, the President of the Commission and the Review Panel which issued the Certificate in relation to the applicant’s alleged psychiatric condition. These are proceedings 2024/80728. They were conducted together with proceedings 2023/305474. The President and the Review Panels filed submitting appearances.

4. [21]

   The primary judge found:

5. [22]

   In fairness to the unrepresented applicant, the primary judge approached the case by reviewing the entirety of the applicant’s material, without undue regard to legal form or any procedural restriction which might otherwise apply to the presentation of the applicant’s case. His Honour reviewed the material in both proceedings 2023/305474 and 2024/80728. The primary judge identified 14 themes of the applicant’s complaint, which the applicant contended entitled him to relief from the Court.

6. [23]

   The first theme arose from numerous complaints which the applicant made about the conduct and decisions of the original medical assessors (not the Review Panels). The applicant repeatedly and at length addressed a number of alleged deficiencies which he contended were apparent in the work of the four medical assessors. As the primary judge correctly explained:

7. [24]

   The second theme was the applicant’s assertions that there was a failure to ensure particular medical assessor expertise on the Review Panels. The primary judge recorded that only one specific matter was identified to support this contention, namely that the Review Panel which assessed the applicant’s cardiac condition included a doctor who was not a cardiologist. There did not appear to be any dispute that one of the two doctors had appropriate cardiac expertise.

8. [25]

   As the primary judge correctly explained (having regard to s 63(3) of the Act):

9. [26]

   The third theme was the applicant’s contention that the Review Panels should not have conducted a physical examination. The applicant asserted that rule 128(2) of the Personal Injury Commission Rules 2021 “dictates that the panel’s decision should rely exclusively on the written application”. The applicant submitted that there was a failure to undertake the assessments in accordance with the rules because the Review Panels also relied upon physical examination.

10. [27]

    The primary judge correctly concluded:

11. [28]

    The applicant also made a number of complaints about the way the physical examination was carried out on 19 April 2023. The primary judge described them at [102] as being:

    1. (1)

       one of the medical assessors who was a member of two of the Review Panels did not attend the examination;

    2. (2)

       “endocrine was not assessed” and the pancreas was not assessed;

    3. (3)

       one of the two medical assessors who conducted the examination did not have qualifications in endocrinology;

    4. (4)

       there are no minutes or transcripts of the examination – that is said to be a “transparency” issue;

    5. (5)

       there were no cameras in the examination room – another transparency issue;

    6. (6)

       one of the medical assessors was “taking naps and attending many telephone calls”;

    7. (7)

       one medical assessor determined the applicant’s condition “solely based on blood pressure readings and a stethoscope examination”; and

    8. (8)

       the examination revealed the applicant’s inability to walk straight, which the Review Panels “neglected to acknowledge”.

12. [29]

    The primary judge concluded about these eight complaints as follows:

13. [30]

    The fourth theme was the applicant complained of “bad faith”, want of “procedural fairness”, “bias” and “prejudice” by the Review Panels. As for the specifics of this theme, the applicant asserted that the Review Panels did not “report” symptoms which the applicant considered to be relevant. He submitted that that failure is demonstrative of a bias in favour of the Insurer. The applicant did not identify any evidence to support this theme of complaint which was rejected by the primary judge as “baseless”.

14. [31]

    The fifth theme was that the medical assessment was not conducted in accordance with the Motor Accident Guidelines and the AMA4 Guides. The primary judge said of this complaint:

15. [32]

    The one specific departure identified by the applicant was that the Review Panels allegedly failed to comply with paragraph 1.234 of the Motor Accident Guidelines. The applicant’s argument was that compliance with paragraph 1.234 required the Review Panels to order each of the diagnostic tests listed in the paragraph. The Review Panels allegedly failed to comply with the Guidelines as they did not order any diagnostic tests for the applicant.

16. [33]

    The primary judge rejected this submission. As his Honour correctly found:

17. [34]

    The primary judge concluded that the applicant did not demonstrate any failure by the Review Panels to comply with the Guidelines.

18. [35]

    The sixth theme was the applicant’s assertion that his medical condition before the accident was irrelevant to his current need for treatment and impairment compensation. He submitted that the Review Panels inappropriately took his pre-accident condition into account when assessing the cause of his injuries. As the primary judge pointed out, the applicant’s case was that the car accident “exacerbated” his diabetes and cardiac condition and therefore the Review Panels needed to understand the conditions before the accident in order to assess the applicant’s claims. The primary judge concluded:

19. [36]

    The seventh theme was that the Review Panels did not consider matters which the applicant said were “significant” and “pertinent”. This submission was made repeatedly by the applicant to the primary judge. The primary judge found the submission lacked specificity:

20. [37]

    The primary judge was able to identify four specific matters which the applicant may be saying were not considered by the Review Panel: (1) the insertion of three new stents which the Plaintiff asserts was necessary because a pre-existing stent was damaged in the accident; (2) “cardiothoracic injury”; (3) “hypertension”; and (4) post-accident events and procedures “such as” catheterisation and angioplasty. After considering the relevant evidence in detail, his Honour concluded that “[o]verall, the Plaintiff has not demonstrated that the Review Panels failed to take into account any relevant matter”.

21. [38]

    The eighth theme was the applicant’s assertion that the relevant Review Panel was wrong to conclude that the accident in August 2016 did not exacerbate his pre-existing cardiac condition. Four medical documents were specifically identified by the applicant, and referred to again in this Court.

22. [39]

    The first document was a letter written by Professor Kovoor on 19 September 2016. Professor Kovoor is a cardiologist who examined the applicant about a month after the accident. In the letter, Professor Kovoor described the onset of the applicant’s cardiac condition in 2009, including the insertion of a stent in 2009. Professor Kovoor referred to the motor accident and stated:

23. [40]

    The second document appeared to be a discharge report dated 28 November 2017 after a procedure was performed at Westmead Hospital. Professor Kovoor was named as the consultant. The report included the following text:

24. [41]

    The third document was a report of cardiac catheterisation undertaken by Jay Thakkar on 4 September 2019. The applicant pointed out that the report included the following text:

25. [42]

    The fourth document was another letter by Professor Kovoor dated 1 March 2022. The letter stated:

26. [43]

    The primary judge found that the relevant Statement of Reasons and the Evidence Review show that the Review Panel gave full consideration to the matters referred to in the four documents relied upon by the applicant. His Honour found that there was no basis to conclude that the Review Panel’s conclusion on this issue was relevantly unreasonable. Bereft of context, these four documents do not establish any arguable error by the Review Panels.

27. [44]

    The primary judge concluded:

28. [45]

    The ninth theme was the applicant’s assertion that he currently suffers from a number of severe medical conditions, including conditions within the four categories assessed by the Review Panels. He argued that his current poor medical state is demonstrated by the numerous medications, tests, treatments, hospital admissions and procedures he has undergone since the accident, including open heart surgery in 2019. Following the open-heart surgery, the applicant experienced a large pericardial effusion. The applicant’s wife has given a lengthy description of the applicant’s emotional, physical, cognitive and behavioural symptoms of depression and anxiety. The applicant said that there was extensive medical evidence which demonstrated that he is currently 100% whole person impaired.

29. [46]

    The primary judge concluded about this theme as follows:

30. [47]

    The tenth theme was the applicant’s claim that the Insurer had not explained why, let alone proved that, the applicant’s current medical conditions were not caused by the accident. The applicant contended that he was entitled to relief for that reason alone.

31. [48]

    The primary judge found, at [157], that the insurer is not required to prove non-causation and that the complaint must be rejected.

32. [49]

    The eleventh theme was that the decisions of the Review Panels were “incomprehensible” and, hence, invalid. The primary judge concluded about this complaint:

33. [50]

    The twelfth theme was that there was undue delay by the Review Panels. The primary judge found (at [163]) that this was “not a fair criticism. The Plaintiff lodged his application for review on 1 October 2022. Thereafter the Review Panels had to consider extensive materials, summarised in the 59 page Evidence Summary and exceeding 5,000 pages. The Review Panels established a procedure, undertook that procedure, made their decisions, issued their Certificates and gave comprehensive reasons. The Review Panels have conducted their task with expedition”.

34. [51]

    The thirteenth theme was that there had been a delay in preparing the joint Court Book before the primary judge. Eventually, two separate Court books were filed, one by each party. His Honour concluded on this issue:

35. [52]

    The fourteenth theme was the applicant’s submission that there was procedural unfairness caused by the Insurer’s Affidavits. The applicant repeatedly complained about the manner in which the Affidavits were affirmed and witnessed. The primary judge rejected the complaint and found that there “was nothing in this complaint which can in any way affect the outcome of the case”.

36. [53]

    The primary judge found:

Whether leave to appeal is required

1. [54]

   Section 101(2)(r) of the Supreme Court Act provides that leave to appeal to the Court of Appeal is required from a final judgment or order in proceedings of the Supreme Court, other than an appeal that:

   1. (1)

      involves a matter at issue amounting to or of the value of $100,000 or more (s 101(2)(r)(i)), or

   2. (2)

      involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more (s 101(2)(r)(ii)).

2. [55]

   The party seeking to appeal and seeking to rely on either of these provisions bears the onus to satisfy the Court that the amount in issue meets the $100,000 threshold by demonstrating that a successful appeal would improve its entitlement by at least that amount: Gaynor v Attorney General of New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48 at [16] (Bell P, Basten and Leeming JJA agreeing). In BE Australia WD Pty Ltd (subject to a Deed of Company Arrangement) v Sutton (2011) 82 NSWLR 336; [2011] NSWCA 414, Campbell JA said that it was:

3. [56]

   It is not sufficient for the applicant formally to assert that the value of their claim is $100,000 or more. The applicant must explain how it is that the “realistic worth of the claim” is $100,000 or more. This Court in Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267 at [80] summarised the key principles which emerge from the case law in relation to the requirements as set out in s 101(2)(r) of the Supreme Court Act. They relevantly included the following:

4. [57]

   More recently, in Emde v State of New South Wales [2025] NSWCA 41, McHugh JA (with whom Gleeson and Kirk JJA agreed) described the test described in Jabulani as “well established”:

5. [58]

   This in many respects is an unusual case in that the self-represented applicant has led no evidence, beyond assertion, of the possible value of his claim. None of the medical evidence below (with the exception of the four letters described at [39]-[42] above) or the reasons of the Review Panels was put before us. Those letters lack context and, by themselves, establish nothing. No medical reports were put before us by the applicant containing opinions about the correct degree of permanent impairment suffered by the applicant from the accident. There was no identification by the applicant at all of any path of reasoning permitting the conclusion that the correct degree of permanent impairment suffered by the applicant was different from that found by the Review Panels and that he would be entitled to over $100,000 if his claim succeeded following a proper assessment.

6. [59]

   Although the applicant asserted in submissions that he had suffered over $100,000 in damages, he accepted in written and oral submissions that he required leave to appeal. He was correct to do so. In addressing whether the “matter at issue” involves a “realistic prospect that the appeal would change the wealth of the appealing party by more than $100,000”, a process of inference must be undertaken. Even assuming that all of the applicant's complaints were correct, the Court cannot draw the necessary inference unless it is able to assess that success in the appeal would give rise to the reasonable prospect of an impact of $100,000 or more on the applicant’s monetary position. The applicant has not led any evidence or referred to any material permitting such an inference favourable to the applicant to be drawn.

7. [60]

   The applicant has not demonstrated a realistic prospect on appeal of lessening the prejudice that he suffers by reason of the order appealed against to an extent greater than $100,000. Accordingly, leave to appeal is required.

Leave to appeal principles

1. [61]

   Leave to appeal will ordinarily be granted only when the proposed appeal raises an issue of principle, a question of public importance, or seeks to address a reasonably clear injustice going beyond something that is merely arguable: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28].

Application for leave to appeal – consideration

1. [62]

   We will first address the summons seeking leave to appeal before addressing the terms of the draft notice(s) of appeal and the written and oral submissions.

2. [63]

   The first complaint made by the appellant was error of law. It was alleged that the “trial judge misapplied legal principles and failed to properly interpret the Motor Accidents Compensation Act 1999 (NSW), specifically ss 58, 61, and 63 (see [Judgment, Paragraph 168])”.

3. [64]

   The relevant paragraph of the primary judgment is quoted above at [53].

4. [65]

   Under the heading “Grounds for seeking leave to appeal”, the applicant alleged several “errors of law”:

5. [66]

   Simply to assert that there has been an “error of law” in this vague and unparticularised manner is not an appropriate way of seeking leave to appeal in this Court. The applicant has failed, even arguably, to identify any possible error on the part of the primary judge.

6. [67]

   To the extent any allegation of error of law may be discerned from all of the applicant’s material, it is in relation to the Review Panel’s finding of a lack of causal link between the accident and various of the applicant’s claimed injuries. A finding that a particular medical condition was caused or not caused by the motor accident is a finding of fact. A party who wants to challenge a finding of fact by way of judicial review may seek to demonstrate that there was no evidence to support the finding such that the finding was not open to the decision maker: Rahman v Insurance Australia Ltd (2022) 101 MVR 149; [2022] NSWSC 1079 at [6]-[7] (Basten JA).

7. [68]

   The applicant has not shown any arguable basis for impugning the findings of fact on causation on this basis. If there is some evidence capable of supporting the decision maker’s finding of fact, there is no error of law for the purposes of judicial review. As Basten JA said in Rahman:

8. [69]

   The applicant did not advance any intelligible argument that the primary judge fell into error in the way he dealt with the issue of causation.

9. [70]

   The second complaint concerned alleged procedural fairness violations. The applicant stated that the “Review Panel was improperly constituted and failed to ensure an impartial and fair review of the medical assessment (see [Judgment, Paragraph 167])”.

10. [71]

    The relevant paragraph in the primary judgment provides:

11. [72]

    The cross-reference to this paragraph of the reasons of the primary judge is incongruous. That paragraph appears in a section of the reasons dealing with complaints about procedural fairness in the Supreme Court proceedings themselves, whereas the stated ground in the summons seeking leave to appeal is directed to an alleged unfairness in the way in which the Review Panels went about their task.

12. [73]

    The applicant has not demonstrated arguable error on the part of the primary judge in either respect. In relation to the composition of the Review Panels, as we have already concluded above at [25], the primary judge was correct to reject the applicant’s complaint.

13. [74]

    Nor is there any arguable basis demonstrated for any contention that the Supreme Court proceedings themselves were conducted in a procedurally unfair way. Before the primary judge the applicant prepared an extensive array of documentation in which he set out his complaints about the Review Panels. The documentation included originating processes, affidavits and written submissions. The applicant made oral submissions throughout the two-day hearing before the primary judge. Pursuant to a grant of leave by the primary judge, the applicant served further submissions after the hearing which loosely addressed the text of the reasons given by the Review Panel. There was no denial of procedural fairness.

14. [75]

    The third complaint in the summons involves similar difficulties. The applicant complained of a “failure to disclose evidence”. The applicant stated that the “applicant was not provided with full access to medical records and reports relied upon by the Review Panel, amounting to a breach of natural justice (see [Judgment, Paragraph 166])”.

15. [76]

    The primary judgment at [166] is set out above at [51].

16. [77]

    Again, there is an incongruity between the stated complaint (which relates to a breach of procedural fairness by the Review Panels) and the cross-reference to the reasons of the primary judge (which relates to an apparent complaint of procedural unfairness in the conduct of the Supreme Court proceedings). As to the former, beyond the mere assertion in the summons, the applicant has not identified any arguable basis for a contention that the Review Panels acted in a procedurally unfair way by relying upon medical records and reports without providing the applicant with such material. No evidence in support of that contention has been identified. This is in circumstances where, as the primary judge explained at [19]-[27], the Review Panels followed an apparently detailed process of consultation with the applicant and the Insurer.

17. [78]

    As to the complaint referred to by the primary judge at [166], if the applicant had any difficulty in navigating the Court Book, it would have been appropriate to accept the offered adjournment.

18. [79]

    The fourth complaint was that no video or audio recordings were maintained during “critical medical assessments”, which was said to constitute a violation of procedural transparency and fairness. The primary judge correctly concluded at [105] that there was no error by the Review Panels in this regard. There is no requirement under the Act, and no implied requirement as a matter of procedural fairness, to record medical assessments.

19. [80]

    The fifth complaint concerned alleged “Public Interest and Legal Precedents”. The applicant stated that the “matter raises substantial legal questions regarding procedural fairness, jurisdictional errors, and the correct application of statutory provisions, warranting appellate intervention”. This was not elaborated upon on any written or oral submission. We can discern no basis for this claim.

20. [81]

    The sixth ground concerned the “Failure of Assessors Gorman and Haber to Show Cause and Provide Supporting Documents”. The applicant contended that “Assessors Gorman and Haber failed to comply with Paragraph 1.235 of the Motor Accidents Medical Guidelines, which mandates that medical assessors consider all relevant diagnostic test results before determining impairment. The appellant demands that the respondents show cause and provide all relevant documents upon which these assessors certified that the plaintiff did not suffer injuries, which was subsequently followed by the Supreme Court (see [Judgment, Paragraph 167])”.

21. [82]

    The primary judgment at [167] is set out at [71] above. That paragraph has nothing to do with paragraphs 1.234-1.235 of the Motor Accidents Medical Guidelines. The primary judge dealt with this complaint completely and correctly below by rejecting the applicant’s near identical submission. As his Honour correctly found:

22. [83]

    The primary judge concluded that the applicant did not demonstrate any failure by the Review Panels to comply with the Guidelines. The applicant’s repetitive complaint about paragraphs 1.234-1.235 of the Motor Accidents Medical Guidelines must be rejected. No arguable error has been shown.

23. [84]

    Turning then to the draft notice of appeal, this may be addressed by reference to the same themes as adopted by the primary judge.

24. [85]

    As to draft appeal ground 1.6, this was simply a repetition of the sixth ground of the application for leave to appeal. As we have explained, this is an application for leave to appeal from the decision of the primary judge. It is not an occasion to merely rehash complaints about the original medical assessors or the Review Panels, without regard to the reasons of the primary judge. What must be demonstrated is error on the part of the primary judge. This ground does not allege any such error.

25. [86]

    Draft appeal ground 2.1 was prefatory and does not in terms allege error by anyone.

26. [87]

    As to draft appeal grounds 3.1-3.5, each was addressed to alleged errors made by the Review Panels, largely those addressed in theme 3 by the primary judge. Even if leave were granted, it is inevitable that these grounds must be dismissed.

27. [88]

    As to draft appeal grounds 4.1-4.5, each was addressed to alleged errors made by the Review Panels, being those addressed at themes 2, 5 and 8 by the primary judge. Only one of those grounds, 4.3, alleged an error by the primary judge. We are comfortably satisfied that the applicant’s argument advanced by ground 4.3 about the need for a second cardiologist is untenable.

28. [89]

    As to draft appeal grounds 5.1-5.5 and 6.1-6.5, each was addressed to alleged errors made by the Review Panels in the way in which they undertook the medical assessment exercise. Even if leave were granted it is inevitable that these grounds must be dismissed. These grounds did not allege directly, or serve to identify indirectly, any error by the primary judge.

29. [90]

    As to draft appeal grounds 7.1-7.6, each was addressed to alleged errors in the composition of the Review Panels. For the reasons already set out above, no arguable error of law in this regard has been identified. The same applies in relation to draft grounds 9.1-9.4. Draft appeal ground 9.5 concerned the absence of recordings, which we have already addressed.

30. [91]

    Draft appeal grounds 7.7 and 7.8 correlated to the arguments raised in the summons about the lack of access to medical records and diagnostic tests, and the lack of video or audio recordings during the assessment process. We have already explained why no arguable error on the part of the primary judge was disclosed in respect of those matters. Draft appeal ground 7.9 alleged a failure on the part of the Review Panel to consider or apply medical test results, leading to an incorrect determination of impairment. The cross-reference in support of this contention, to the primary judgment at [120], concerned a different topic namely alleged failure to comply with paragraph 1.234 of the Guidelines. There was otherwise nothing beyond mere assertion in this ground, and the applicant has not demonstrated any arguable basis that the primary judge erred by failing to find a relevant legal error on the part of the Review Panel.

31. [92]

    Draft appeal grounds 8.1-8.3 were repetitive of earlier complaints. Whilst ground 8.1 of the draft notice of appeal was addressed to the decision of the primary judge, the complaint made is essentially so vague as to be meaningless: “The trial judge incorrectly accepted the Review Panels findings without ensuring they adhered to statutory Requirements”; a reference was given to paragraph [168] of the judgment which we have set out above at [53]. If leave were granted on ground 8.1, it is inevitable that the ground as framed would be dismissed.

32. [93]

    In the White Folder in this Court, the applicant sought to include an unfiled affidavit of his dated 7 April 2025 and a purported replacement draft notice of appeal. That purported replacement draft notice of appeal was not properly filed in this Court simply by placing it in the White Folder. Nevertheless, in the absence of objection we have considered it. Although framed as raising for consideration alleged errors of law made by the primary judge, those alleged errors are nowhere identified with sufficient particularity to be meaningful. The only references to the judgement of the primary judge are to:

    1. (1)

       paragraphs [120], [122] (which address Motor Accidents Medical Guidelines 1.234 and 1.235),;

    2. (2)

       [164] (the joint court book issue);

    3. (3)

       [137]-[139] (assertions made by the applicant about medical matters clearly beyond any demonstrated expertise);

    4. (4)

       [166], [167] and [168] which we have set out above; and

    5. (5)

       [172]-[179] (which contain a series of complaints made by the applicant without reference to any apparent medical expertise about factual matters and medical judgments made by medical professionals).

33. [94]

    None of these references by the applicant are sufficient to identify any arguable error by the primary judge. The remainder of the replacement draft notice of appeal repeated essentially the same arguments as made in the summons and in the draft notice of appeal which we have addressed above.

34. [95]

    On 27 May, the applicant lodged written submissions electronically. On 3 June 2025, the applicant emailed a “Reply to First Respondent’s Bundle of Authorities” to the Researcher to the Court of Appeal. On 4 June 2025, at the hearing, the applicant handed up a written opening statement and made brief oral submissions. We have taken all of these submissions into account.

35. [96]

    As to the principal written submissions dated 27 May 2025, we make the following observations (adopting the same numbering as the applicant has used):

    1. (1)

       As we have found, leave to appeal is required by applicant. We note that Mr Khanna, in oral submissions, accepted as much.

    2. (2)

       We note the applicant’s complaint about procedural delays by the Insurer, however, no prejudice has been asserted as a result and we are not satisfied that any procedural delays affected the outcome of this matter.

    3. (3)

       We reject the submission that the primary judge erred in his Honour’s consideration of the Motor Accident Guidelines. In relation to the assertions about paragraphs 1.234-1.235 of the Motor Accident Guidelines and the failure to appoint a qualified endocrinologist as part of the medical review process as affecting the outcome of the Review Panels, his Honour’s conclusions at [104] of the primary judgment were clearly correct. The applicant has not demonstrated an issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable.

    4. (4)

       The applicant’s reference to the inapplicability of House v The King (1936) 55 CLR 499; [1936] HCA 40 to the issues in this case is correct as far as it goes. We have not applied this as the appropriate standard of review of the primary judge’s decision.

    5. (5)

       We have not taken into account costs considerations in determining whether leave should be granted. The applicant is correct that “costs follow the event”.

    6. (6)

       We accept that the applicant’s written submissions have been filed on time. We do not discern any relevant prejudice to the applicant by what he said was the late service of material by the Insurer. No application for any adjournment was made by the applicant.

    7. (7)

       We reject the applicant’s submission that by reason of his self-represented status, no costs order should be made against him should leave be refused. As the applicant earlier, correctly, submitted, costs follow the event and there is no reason that they should not do so in the case of this leave application.

    8. (8)

       We reject the applicant’s submission that there was any arguable error in the primary judge failing to intervene about “the absence of a qualified endocrinologist”. In this complaint, the applicant has not demonstrated an issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable.

    9. (9)

       As we have explained, causation is a question of fact and, subject to the “no evidence” ground of review and, perhaps, the legal unreasonableness ground of review, the factual assessment of causation will be a matter for the Review Panel to determine. We are not satisfied that the applicant has demonstrated an issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable.

    10. (10)

        The applicant’s complaints about the way the Review Panel addressed his psychiatric history cannot be accepted. The primary judge approached this issue carefully and thoroughly. There was no arguable denial of procedural fairness nor was there failure to observe mandatory relevant considerations. We are not satisfied that the applicant has demonstrated an issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable.

    11. (11)

        The applicant’s complaints about a denial of procedural fairness at the “medical and judicial level” cannot be sustained. The applicant was given more than a fair opportunity to address the matters raised against him. As we have explained, there was an extensive process of consultation related to the physical examination of the applicant and extensive written and oral submissions were made to the primary judge. The primary judge afforded very considerable latitude to the applicant, including allowing two days of oral submissions and a 14 day period for supplementary submissions after the completion of the hearing. We are not satisfied that the applicant has demonstrated an issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable.

    12. (12)

        The applicant’s submission that “extensive supporting documentation” was not considered at all or “only superficially addressed” must be rejected. There was no “clearly articulated argument” presented by the applicant within the meaning of Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26. In any event, all of the evidence and submissions advanced by the applicant were carefully considered by the primary judge who did his best to address each of the “themes” advanced by a self-represented litigant. We are not satisfied that the applicant has demonstrated an issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable.

    13. (13)

        The applicant’s complaint that the outcome was legally unreasonable must be rejected. To the extent that this complaint was addressed to the decision of the primary judge, it is not open to the applicant. To the extent that the complaint was addressed to the decisions of the Review Panels, there was no error on the part of the primary judge in the way that he approached those decisions. It is not reasonably arguable that any of those decisions were legally unreasonable in the sense described in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18. We are not satisfied that the applicant has demonstrated an issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable.

    14. (14)

        The applicant complained that the primary judge did not critically engage with detailed medical assessments, which assessments the applicant has chosen not to put before this Court. We are not satisfied that there was any clearly articulated case about any medical report advanced by the applicant, let alone one that the primary judge failed to engage with. The suggestion that the primary judge did not give adequate reasons for his Honour’s decision must be rejected. The reasons are extensive and detailed. We are not satisfied that the applicant has demonstrated an issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable.

    15. (15)

        The applicant’s repetitive complaint about the absence of a qualified endocrinologist has already been rejected. There was no error by the primary judge in the way that his Honour dealt with this issue.

    16. (16)

        The applicant’s complaint about “psychiatric injury evidence” was difficult to understand in circumstances where those alleged treatment records were not put before this Court by the applicant. No process of reasoning or submission made to the primary judge was identified by the applicant about this issue. We are not satisfied that the applicant has demonstrated an issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable.

    17. (17)

        The applicant complained, again, about the “principles” of causation. As we have explained, the applicant fundamentally misunderstood those principles, which we have earlier addressed. The applicant referred to “Jebb v Commissioner of Police [2020] NSWCA 144”. There is no case by that name. There was no error in the way that the primary judge addressed the issue of causation and established authority such as Amaca Pty Ltd v Ellis (2010) 240 CLR 111; [2010] HCA 5 is taken from a different statutory context. We are not satisfied that the applicant has demonstrated an issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable.

    18. (18)

        Contrary to the applicant’s submission, there was no obligation on the primary judge to “reconcile” alleged “contradictions” between the original assessors and the Review Panels. We are not satisfied that the applicant has demonstrated an issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable.

    19. (19)

        The applicant’s allegation that he raised “multiple procedural fairness breaches in the NCAT and medical phases”, which were not dealt with appropriately by the primary judge must be rejected. The primary judge was faced with a morass of material and fairly and accurately addressed the matters of substance raised by the applicant. We are not satisfied that the applicant has demonstrated an issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable.

    20. (20)

        The repeated complaint by the applicant that the primary judge failed to address all substantial and clearly articulated arguments must be rejected. No error was shown in the primary judge’s approach to the Review Panels’ clinical judgment. We are not satisfied that the applicant has demonstrated an issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable.

    21. (21)

        As noted at the outset, in oral submissions the applicant accepted that leave to appeal was required and that, as he submitted in writing, he has not been able to complete or present a full “Schedule of Damages”. As we have explained, whether there is a real prospect that the change in financial position as a result of successful appeal will exceed $100,000 is a matter which must be proved by the applicant. This he has failed to do. The additional relief sought by the applicant could not in any event be provided even if leave to appeal were granted.

36. [97]

    No additional matters to those addressed in the written submissions were raised by the applicant in the Reply to First Respondent’s Bundle of Authorities, opening statement or oral submissions.

Conclusion and orders

1. [98]

   There is no doubt as to the correctness of the primary judge’s decision. For the reasons given by the primary judge, the arguments made by the applicant in the proceedings below do not identify any jurisdictional errors or errors of law on the face of the record in any of the Review Panel decisions. No issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable has been identified by the applicant.

2. [99]

   For the forgoing reasons we make the following orders:

   1. (1)

      Leave to appeal refused.

   2. (2)

      Applicant to pay the respondent’s costs of the application for leave to appeal.