Fraser v AAI Limited t/as GIO as agent for the Nominal Defendant [2020] NSWSC 1333

Fraser v AAI Limited t/as GIO as agent for the Nominal Defendant [2020] NSWSC 1333

The Review Panel's certificate was affected by jurisdictional error. The Panel denied procedural fairness by not giving the plaintiff an opportunity to be re-examined or to provide further material, failed to perform the fresh assessment required by s 63(3A), failed to respond to substantial arguments about assessment methodology and causation, and treated the absence of contemporaneous medical records as decisive of causation rather than addressing whether the motor accident caused or materially contributed to the alleged injuries. Grounds 1, 2, 4 and 5 were made out; ground 3 was not made out as an independent inadequate-reasons ground, although the reasons disclosed constructive...

Jurisdiction
Australia
Judgment Date
30 September 2020
Procedural Posture
Application for Judicial Review Under S 69 Supreme Court Act 1970 (nsw) of a Review Panel Certificate Issued Under Part 3.4 of the Motor Accidents Act 1999 (nsw) / In Chambers on the Papers
Outcome
Review Panel Certificate quashed and matter remitted to the Second Defendant for referral to a differently constituted panel of at least three medical assessors for determination according to law.
Legal Topics
['jurisdictional Error' 'procedural Fairness' 'medical Assessment Review' 'permanent Impairment' 'adequacy of Reasons' 'failure to Respond to Substantial Arguments' 'causation']
['administrative Law' 'motor Accidents Compensation' 'judicial Review'] ['jurisdictional Error' 'procedural Fairness' 'medical Assessment Review' 'permanent Impairment' 'adequacy of Reasons' 'failure to Respond to Substantial Arguments' 'causation']

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Procedural Posture

Application for Judicial Review Under S 69 Supreme Court Act 1970 (nsw) of a Review Panel Certificate Issued Under Part 3.4 of the Motor Accidents Act 1999 (nsw) / In Chambers on the Papers

Legal Issues

  1. 1 ['Whether the Review Panel denied procedural fairness by deciding not to re-examine the plaintiff without notice.' 'Whether the Review Panel failed to conduct a fresh assessment required by s 63(3A) and instead merely reviewed the original certificate for error.' 'Whether the Review Panel failed to provide adequate reasons.' 'Whether the Review Panel failed to respond to substantial and clearly articulated arguments.' 'Whether the Review Panel erred by treating the presence or absence of contemporaneous medical records of complaint as decisive of causation.']

Ratio Decidendi

The Review Panel's certificate was affected by jurisdictional error. The Panel denied procedural fairness by not giving the plaintiff an opportunity to be re-examined or to provide further material, failed to perform the fresh assessment required by s 63(3A), failed to respond to substantial arguments about assessment methodology and causation, and treated the absence of contemporaneous medical records as decisive of causation rather than addressing whether the motor accident caused or materially contributed to the alleged injuries. Grounds 1, 2, 4 and 5 were made out; ground 3 was not made out as an independent inadequate-reasons ground, although the reasons disclosed constructive...

Court Disposition

Review Panel Certificate quashed and matter remitted to the Second Defendant for referral to a differently constituted panel of at least three medical assessors for determination according to law.

Orders

  • ['An order in the nature of certiorari quashing the Review Panel Certificate in MAS Matter No. 2019/02/0217 dated 18 December 2019.' "An order in the nature of mandamus remitting the matter to the Second Defendant for reference of the plaintiff's application for medical review to a differently constituted panel of...