AAI Limited t/as GIO v Luk [2022] NSWSC 1007

AAI Limited t/as GIO v Luk [2022] NSWSC 1007

The December 2021 decision was invalid because the Delegate applied the wrong legal test for additional relevant information, failing to apply the approach in Jubb and incorrectly treating expert opinion based on the same material before the original Medical Assessor as incapable of constituting additional relevant information. That error was both jurisdictional error and error on the face of the record. The March 2022 decision was also invalid because it depended upon the first decision having been made according to law. The delay in commencing proceedings was explained, including the late provision of the first decision and the need to seek reconsideration, so time was extended.

Jurisdiction
Australia
Judgment Date
29 July 2022
Procedural Posture
Judicial Review of Personal Injury Commission Delegate Determinations Concerning Motor Accident Compensation / On the Papers
Outcome
Both Delegate decisions were declared invalid and set aside; time to commence proceedings was extended; the subject matter of the first decision was remitted for determination by a different Delegate according to law.
Legal Topics
['judicial Review' 'error on the Face of the Record' 'jurisdictional Error' 'additional Relevant Information' 'extension of Time' 'medical Assessment']
['administrative Law' 'motor Accident Compensation'] ['judicial Review' 'error on the Face of the Record' 'jurisdictional Error' 'additional Relevant Information' 'extension of Time' 'medical Assessment']

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Procedural Posture

Judicial Review of Personal Injury Commission Delegate Determinations Concerning Motor Accident Compensation / On the Papers

Legal Issues

  1. 1 ['Whether the Delegate applied the correct legal test for determining whether material was additional relevant information capable of having a material effect on the outcome of the previous medical assessment under s 7.24(5) of the Motor Accident Injuries Act 2017 (NSW) and Regulation 13(2) of the Motor Accident Injuries Regulation 2017 (NSW).' 'Whether the December 2021 decision contained jurisdictional error and/or error on the face of the record.' 'Whether the March 2022 decision was invalid because it depended on the validity of the December 2021 decision.' 'Whether time to commence the judicial review proceedings should be extended.']

Ratio Decidendi

The December 2021 decision was invalid because the Delegate applied the wrong legal test for additional relevant information, failing to apply the approach in Jubb and incorrectly treating expert opinion based on the same material before the original Medical Assessor as incapable of constituting additional relevant information. That error was both jurisdictional error and error on the face of the record. The March 2022 decision was also invalid because it depended upon the first decision having been made according to law. The delay in commencing proceedings was explained, including the late provision of the first decision and the need to seek reconsideration, so time was extended.

Court Disposition

Both Delegate decisions were declared invalid and set aside; time to commence proceedings was extended; the subject matter of the first decision was remitted for determination by a different Delegate according to law.

Orders

  • ['The decision of the Delegate of the President of the Personal Injury Commission of New South Wales (the second defendant), dated 21 December 2021, is invalid and is set aside.' 'The decision of the Delegate of the second defendant dated 30 March 2022 is invalid and is set aside.' 'The time to commence proceedings...