AAI Limited t/as AAMI v Elias

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
CITATION:	AAI Limited t/as AAMI v Elias [2025] NSWPICMR 31
CLAIMANT:	Nicholas Sam Akl Elias
INSURER:	AAI limited t/as AAMI
MERIT REVIEWER:	Katherine Ruschen
DATE OF DECISION:	8 October 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; merit review; dispute under section 6.24; whether a request for unredacted bank statements, notices of assessment, and superannuation statements is reasonable and whether the claimant has a reasonable excuse for failing to comply; inconsistencies in the evidence; incomplete evidence; unreliable evidence; credit issues; insurer seeks further documents to determine the claimant’s pre-accident weekly earnings (PAWE) (Schedule 1, clause 4(1)), the claimant’s post-accident loss of earnings for the purpose of payment of weekly benefits under Division 3.3, and to determine the validity of the claim and whether any part of the claim may be fraudulent; Held – the insurer’s request for further information and documents is reasonable and the claimant does not have a reasonable excuse for their failure to comply.
DETERMINATIONS MADE:	CERTIFICATE Issued under s 7.13(4) of the Motor Accident Injuries Act2017 The reviewable decision is about the duty of the claimant to co-operate with the insurer pursuant to s 6.24 of the Motor Accident Injuries Act 2017 (the MAI Act) and is therefore a merit review matter under Schedule 2(1)(x) of the MAI Act. The following determination is made: 1. For the purposes of s 6.24 of the Motor Accident Injuries Act 2017, a request for the claimant to provide the following documents to the insurer is reasonable: (a) unredacted personal bank statements for all accounts to which he is signatory for the period 26 November 2023 to date in PDF format; (b) notice of assessment for the financial year ending 30 June 2024, and (c) the claimant’s BT Superannuation Statement for the period 26 November 2023 to date in PDF format. 2. For the purposes of Schedule 2(1)(x) of the Motor Accident Injuries Act 2017, the claimant does not have a reasonable excuse for failing to comply with the request.

STATEMENT OF REASONS

INTRODUCTION

There is a dispute between Nicholas Sam Akl Elias (the claimant) and the insurer about the duty of the claimant to co-operate with the insurer pursuant to s 6.24 of the Motor Accident Injuries Act 2017 (the MAI Act).
The claimant was involved in a motor accident on 26 November 2024.
The claimant lodged an application for personal injury benefits on 28 November 2024 in which he stated he was employed by Sam and Nic’s IGA Bellambi (the store) as a full-time manager earning $1,500 per week.
On 3 December 2024 the insurer requested proof of income from the claimant.
On 4 January 2025 the claimant sent a limited number of payslips dated in the months of October and November 2024 to the insurer.
On 7 January 2025 the insurer accepted the claimant was an earner for the purpose of the MAI Act and determined the claimant’s pre-accident weekly earnings (PAWE) in the sum of $2,011 based on the limited documents provided by the claimant.
The insurer subsequently detected discrepancies in the payslips and has since requested further documents and information from the claimant so as to:
(a)    verify the claimant’s earnings for the purpose of PAWE;
(b)    verify the claimant’s contentions regarding post-accident loss of earnings, and
(c)    determine the validity of the claim and whether any part of it may be fraudulent.
The claimant refused to provide all of the requested documents. The insurer seeks a merit review as to whether the documents are reasonably required by the insurer and whether the claimant has a reasonable explanation for failing to comply with the request.

BACKGROUND

The insurer calculated PAWE based on limited documents, being payslips for the discreet period October and November 2024. The insurer subsequently detected discrepancies in the payslips, which caused the insurer to question the reliability of these documents.
On 20 January 2025 the insurer sought clarification from the claimant and in a telephone call the claimant advised the insurer, among other things that:
(a)    he had not left the house at all in two months;
(b)    he had not yet made a return to work;
(c)    his employer is a family run business; owned by his father Sam Elias;
(d)    he was not an owner of the store;
(e)    he does not normally receive payslips, and
(f)    payslips were created by his accountant post-accident in support of wage loss.
Accordingly, the payslips are not contemporaneous documents, as first thought by the insurer.
On 20 January 2025 the insurer requested bank statements from the claimant to ensure PAWE had been correctly calculated. On this date the insurer also wrote to “Jess in payroll” care of the email address forwarded by the claimant with the attached payslips. To date, the insurer has not had any response.
On 3 February 2025 the claimant advised the insurer by email that he remained “100%” unfit for work.
On 4 February 2025 the insurer requested that the claimant provide tax returns and bank statements.
On 6 February 2024 the claimant advised he was struggling to focus on this request due to pain and difficulty figuring out how to download and send the documents.
On 7 February 2025 the insurer again requested the claimant provide his bank statements.
On 13 February 2025 the insurer again wrote to ‘Jess in payroll’ seeking a contact number to confirm the employment details provided by the claimant. No response has been received.
On 14 February 2025 the insurer advised the claimant there was insufficient evidence to calculate PAWE and he would be paid the interim rate during the first 13 weeks, pending provision of further information and documents.
On 14 February 2025 the claimant provided redacted bank statements for account number ending 366 for the following periods:
(a)    15 November 2023 to 15 December 2023;
(b)    15 October 2024 to 15 November 2024;
(c)    15 November 2024 to 13 December 2024, and
(d)    13 December 2024 to 15 January 2025.
On 3 March 2025 via a certificate of fitness, the claimant declared he had not engaged in any paid employment since the accident.
On 6 March 2025 the insurer requested a copy of the claimant’s notice of assessment for the financial year ending 30 June 2024.
On 7 March 2025 the claimant advised a functional capacity evaluation arranged by the insurer would need to take place at his parent’s home, as he had moved back into his parent’s house due to psychological distress.
On or about 11 March 2025 the insurer received an Allied health treatment request from The Psychology Spot which indicated the claimant was unable to drive, was isolated from others and spent most of his time in his bedroom. The request stated the claimant needed to move into his family home to be cared for due to reduced capacity to complete activities of daily living (ADLs).
On 14 March 2025 the claimant accepted the insurer’s offer to assist in locating a chiropractor in his area and in doing so, represented he was still unable to drive by stating to the insurer: “If you can secure an appointment for me in the Corrimal/Wollongong area (Wollongong is preferable), that would be appreciated. I am becoming more familiar with the bus route, thank you.”
On 17 March 2025 a treatment provider noted the claimant had developed ‘severe phobia of driving.’ A functional capacity evaluation was completed on 17 March 2025 which observed:
“The claimant reported very high pain levels throughout the assessment and reported they did not subside following rest or task rotation. The claimant was unable to complete the three-minute step test, ceasing at 1 minutes due to an aggravation of groin pain and being unable to continue. The claimant reported he was able to sit in a parked car however was not comfortable.”
In an email to the insurer dated 25 March 2025 the claimant said he was in significant pain.
Dr Qamar issued a certificate of fitness dated 3 April 2025 certifying the claimant fit for work for two hours a day, three days a week from 3 April 2025 to 3 May 2025. He noted the claimant was still struggling with a driving phobia after the accident. The claimant declared in this certificate (despite attending work before the certificate was issued) that he had not engaged in any paid employment since the last certificate provided.
In an email dated 15 April 2025 the claimant advised the insurer he had suffered a significant setback in his mental health and asked the insurer the following:
“I wanted to check something with you regarding work. My main role previously involved a significant amount of driving, which I’m still unable to do due to my current mental state. While someone else has been covering my position during my absence, I’ve been thinking about whether there’s a way for me to trial a return in an unpaid capacity? Just to see if I can manage the management and light duties side of things. I’m still struggling with anxiety, especially in crowds or speaking with people, so I’d like the opportunity to assess if I’m realistically able to return before my employer considers removing the person currently filling my role. This would help avoid unnecessary disruption to the business if it turns out I’m still not ready.”
On 16 April 2025 the insurer received a surveillance report which recorded observations as follows:
(a)    24 March 2025: the claimant attended the store and was observed for 30 minutes walking around the store pointing and instructing workers in the store, putting signs on boxes, organising display cabinets and lifting and carrying a box of produce. On the same day he also drove himself, alone, to his parent's address in Berkeley and attended his psychologist appointment (a distance of approximately 17km);
(b)    25 March 2025: the claimant appeared to commence work in the store at 7.30am and continued to work for six hours. The claimant was observed engaged in various employment activities, including talking to customers, instructing staff and conversing with salespeople. He was observed pulling and pushing large display cabinets, using a handheld forklift, packing produce, including 5kg bags of potatoes onto shelves, carrying large trays of produce, organising display cabinets, carrying a wooden pallet with another male and lifting large signs to another position. On the same day, after working six hours, the claimant was observed driving from the South Coast area to St Leonards and back (a distance of around 90km each way/180km round trip);
(c)    26 March 2025: the claimant appeared to commence work in the store at 7.30am, working until 6.30pm (11 hours). The claimant was observed engaging in various employment activities, including unloading boxes of stock from pallets and loading them onto trolleys, pushing trolleys into the store, lifting large tiles or pieces of concrete and throwing them into a skip bin and walking around the store conversing with staff and customers;
(d)    3 April 2025: the claimant was observed working in the store from 8.52am until at least 3.14pm, other than a period of about one hour between 9.08am and 10.30am when he left the store briefly, drove himself to a private residence in Corrimal and visited that residence before returning to the store, and
(e)    8 April 2025: the claimant was observed working in the store. He was observed engaging in a range of employment activities, including directing other staff, taking phone calls, stocking fruit, taking deliveries and pushing a large amount of Easter stock on a trolley into the store. On the same day, the claimant drove himself to St Leonards and return (180km approximately).
Surveillance took place at a time when the claimant had stated he had not returned to work, remained in pain, had moved in with his parents as he was unable to cope with ADLs and was struggling with a driving phobia. At all material times during surveillance the claimant was observed residing in his own residence in Bellambi, not at his parents’ home in Berkeley.
The insurer provided the claimant with a copy of the surveillance on 17 April 2025 and requested an explanation for the inconsistencies between the surveillance observations and the certificate of fitness dated 3 April 2025.
On 17 April 2025 the insurer also requested the claimant provide unredacted copies of statements from all bank accounts to which he is a signatory from the date of the accident to date and his notice of assessment and individual tax return for the financial year ending
30 June 2024.
On 17 April 2025 the claimant requested an extension to 1 May 2025 to respond and on
24 April 2025 the claimant requested a further extension to 9 May 2025.
On 28 April 2025 Dr Qamar issued a certificate of fitness certifying the claimant fit for work for four hours, five days a week from 28 April 2025 to 28 May 2025. He noted the claimant still had a driving phobia which was getting better although he still could not drive a work truck and the van. The claimant declared in the certificate that he had not engaged in any form of paid employment since the last certificate provided.
On 6 May 2025, after becoming aware of the surveillance observations, the claimant wrote to the insurer as follows:
“I wish to draw your attention to an ongoing issue with page 3 of the certificate, which I have attempted to rectify by contacting the clinic on three separate occasions. Despite these efforts, the form continues to incorrectly state that I have not participated in paid employment. While I have been making genuine efforts to gradually re-engage in some limited duties, I have not yet been paid and am still awaiting payslips. Regarding the certificate, I note that my treating doctor has increased my work capacity slightly to reflect these efforts. However, the section on page 3 remains inconsistent with both the doctor's narrative and my actual situation. This discrepancy is beyond my control, but I am doing my best to have it corrected.”
In response to the surveillance the claimant provided a statement dated 13 May 2025, in which he states:
(a)    he resides in the property directly behind IGA Bellambi which is a family owned business;
(b)    he did not engage in any paid employment from the date of the accident until
3 April 2025 when he was certified fit to return to work;
(c)    on the certificate of fitness dated 3 April 2025 the claimant’s treating doctor incorrectly ticked the box regarding paid employment due to an administrative error, as he had returned to work that day;
(d)    he notified the insurer of his intention to attempt a gradual return to work in April;
(e)    he was awaiting payslips and payment information to forward once available; and
(f)    nothing he did was hidden or in breach of his legal obligations, he has acted in good faith and inconsistencies in his certificates had been identified.
The claimant detailed the following in his statement in respect of specific dates:
(a)    24 March 2025: the claimant states:
“Entered the store briefly in casual clothing; no duties performed. Fencing contractor attended regarding residence-not the store. Travelled directly to a psychologist appointment in Wollongong. I did not attend Berkely. No takeaway was purchased from a pizza store”;
(b)    25 March 2025: the claimant states:
“Not working, not in uniform, not rostered. Attempted to lift pallet briefly but stopped due to pain. I was visibly distressed, showing signs of psychological symptoms including disorientation, freezing, emotional breakdown, pacing and self-directed speech – none of which are reflected in the surveillance summary”;
(c)    26 March 2025: the claimant states:
“I did not lift concrete, bricks, or 5kg potato bag. Movements were hesitant, brief and ceased when discomfort occurred”, and
(d)    3 and 8 April 2025: the claimant states:
“I returned to work on 3 April 2025 in accordance with my Certificate of Capacity. My presence at the IGA Store was part of a gradual return to work process. I had already notified the insurer of my intention to return to work in April and was waiting to forward payslips. My return to work was lawful, medically supported and fully transparent.”
The claimant’s solicitors indicated the claimant was in the process of obtaining the following:
(a)    unredacted copies of bank statements from all bank accounts from the date of the accident to date;
(b)    notice of assessment 2024; and
(c)    tax return 2024.
On 14 May 2025 the claimant’s solicitors provided a OneDrive link for access to the claimant’s bank statements, however, the insurer was unable to view same.
On 16 May 2025 a list of selected credit transactions for accounts ending 366 (Westpac Choice) and 933 (Westpac Life) for the period 26 November 2024 to 17 April 2025 was emailed to the insurer.
On 19 May 2025 the insurer wrote to the claimant’s solicitors noting the claimant had not supplied all of the information requested and that it was evident from the transactions provided that the claimant was signatory to at least three bank accounts.
On 22 May 2025 the claimant’s solicitors advised the insurer by email as follows:
“[the claimant] does not wish to provide his bank statements, as he is uncomfortable with the insurer having access to his personal spending information. He has also confirmed that he only holds two bank accounts. The number ending in ***685, as referred to in your email, appears to be a BSB rather than an account number.”
On 25 June 2025 the claimant’s solicitors provided the claimant’s draft 2024 individual tax return, which had been prepared post-accident on 5 June 2025.
On 24 July 2025 the claimant’s solicitors provided a list of credit transactions for account ending 366 for the period 23 Aril 2025 to 22 July 2025.
On 30 July 2025 the insurer wrote to the claimant outlining inconsistencies in the evidence and requested further information and documents again.
On 6 August 2025 the claimant declined to provide unredacted bank statements and indicated he had already provided the 2024 notice of assessment (although he had not). The claimant indicated he would provide his superannuation statement upon receipt.

SUBMISSIONS

Insurer’s submissions

The insurer submits their request for further documents is reasonable in the circumstances of this matter and that by failing to provide the requested information the claimant has failed to comply with his duty to co-operate under s 6.24 of the MAI Act.
The insurer submits s 6.24 is clear in that the claimant must comply with any reasonable request by the insurer to furnish specified information, including to enable the insurer to assess whether all or any part of the claim may be fraudulent.
The insurer highlights various inconsistencies and non-disclosures in the evidence, including:
(a)    the claimant maintained he had a fear associated with driving and was using public transport, yet surveillance shows the claimant driving on multiple occasions, including long distances. The claimant has not provided any explanation for this inconsistency;
(b)    the claimant states he had not engaged in employment prior to 3 April 2025 yet surveillance footage shows him engaging in work related activities on
25 March 2025 and 26 March 2025 as well as 3 April 2025;
(c)    contrary to the claimant’s contention he was upfront with the insurer and had notified his insurer about his intended return to work on 3 April 2025 there was no such notification to the insurer. The claimant only disclosed his return to work after being provided with the surveillance;
(d)    the claimant had only advised the insurer he was considering trialling a return to work and even then, he did not do so until 15 April 2025, almost two weeks after he had in fact returned to work on 3 April 2025, a matter the claimant failed to disclose in his 15 April 2025 email;
(e)    the claimant states his treating doctor incorrectly ticked the box in the
3 April 2025 certificate of capacity that he had not engaged in any paid employment due to an administrative error. The insurer notes, however, that the claimant signed the declaration and provided a copy of the certificate directly to the insurer and in doing so, did not highlight the contended doctor error;
(f)    it was only after the claimant was provided with the surveillance that he disclosed he had returned to work; and
(g)    the claimant did not disclose he was appointed as director/secretary/shareholder of N Elias Enterprises Pty Ltd and Prime Grocers Pty Ltd (with registered business name of Sam, Nic’s & Chris’ IGA Local Grocer) as of 7 March 2025 and director/secretary of 1 Elias Investments Pty Ltd as of 7 March 2025.

The insurer submits there are significant inconsistencies and concerns around the claimant’s employment and driving capacity not adequately explained by the claimant after provision of the surveillance to him. The insurer submits this raises issues of reliability and credit in connection with the claimant’s evidence.
The insurer submits further information is required to calculate PAWE and that:
(a)    the claimant has only provided payslips for a period of approximately one month from 21 October 2024 to 24 November 2024;
(b)    the claimant conceded the payslips are not contemporaneous documents, and
(c)    the claimant provided a selection of redacted bank statements but has not provided bank statements for the whole of the 12 month period before the day of the motor accident.
The insurer submits in light of the issues raised above, including the credit issue their request for the claimant to provide the following is reasonable for the purpose of calculating PAWE:
(a)    unredacted personal bank statements for all accounts to which he is signatory for the period 26 November 2023 to 25 November 2024 in PDF format;
(b)    notice of assessment for the financial year ending 30 June 2024, and
(c)    BT superannuation statement for the period 26 November 2023 to
25 November 2024 in PDF format.
In light of the issues the insurer submits their request for the following is reasonable for the purpose of verifying whether the claimant has suffered any loss of earnings post-accident so as to determine whether the claimant is entitled to payment of weekly benefits:
(a) unredacted personal and business bank statements for all accounts to which he is a signatory for the period 26 November 2024 to date in PDF format, and
(b) BT superannuation statement for the period 26 November 2024 to date in PDF format.
The insurer submits their requests are also reasonable when considering the objects of the MAI Act to deter fraud in connection with compulsory third-party insurance (s 1.3(2)(f)) and that their requests for further documents in relation to PAWE and post-accident loss of earnings is also reasonable for the purpose of the insurer determining the validity of the claim and whether any part of the claim may be fraudulent.
The insurer submits the claimant does not have a reasonable excuse for failing to comply with their request for further information and documents.
The insurer seeks a merit review as to whether, for the purposes of s 6.24:
(a) their request for further documents is reasonable, and
(b) the claimant has a reasonable excuse for failing to comply.

Claimant’s submissions

The claimant submits he has provided the following, which ought to be sufficient for the insurer’s purposes:
(a)    a letter from his accountant dated 12 September 2025 stating his employer is in the process of arranging its business affairs to make superannuation guarantee payments due to cashflow issues;
(b)    income statements showing payment of wages over the last four years; and
(c)    a letter from his employer’s accountant stating he has been in receipt of gross regular wage payments of $2,012 per week since around 2021.
The claimant objects to providing unredacted bank statements on the basis of protecting his privacy. The claimant submits the redacted sections pertain to his personal spending which is unrelated to determining earnings paid by his employer (the claimant has also redacted all credit transactions other than those he says are wage payments but has provided no explanation for this additional redaction).
The claimant makes submissions about s 6.25 of the MAI Act, which pertains to provision of particulars in connection with a claim for damages and says:
(a)    the insurer is not permitted to engage in “fishing expeditions”;
(b)    the insurer’s right to request information is not unlimited and must be justified by the needs of the claim;
(c)    before making a request for further information, the insurer must take into account all relevant information already available, including any information from a related statutory benefits claim;
(d)    the claimant may lawfully decline to provide documents or information if it is not relevant to the claim and irrelevance is a reasonable excuse;
(e)    legal professional privilege, privacy concerns, or where the request is unduly onerous or oppressive is also a reasonable excuse, and
(f)    the necessity of the documents is to be assessed in light of the issues in dispute, the material already available, and whether the documents will materially assist in determining liability, quantum, causation or other contested matters.
The claimant does not make any submissions specific to the section of the MAI Act under consideration in this merit review, which is s 6.24 noting the matter concerns a claim for statutory benefits and not a claim for damages. However, whilst s 6.25 applies to a claim for damages only the principles are, to an extent, not dissimilar to those applicable to s 6.24.

REASONS
Legislation

Relevantly, the claimant has a duty under s 6.3(2) of the MAI Act to “act honestly, not to mislead and to disclose all relevant information in a timely manner”.
In addition, s 6.24 of the MAI Act provides:
“Duty of claimant to co-operate with other party
6.24 Duty of claimant to co-operate with other party
(1) A claimant must co-operate fully in respect of the claim with the other party to the claim (being the insurer on the claim or, if there is no insurer, the person against whom the claim is made) for the purpose of giving the other party sufficient information--
(a) to be satisfied as to the validity of the claim and, in particular, to assess whether the claim or any part of the claim, may be fraudulent, and
(b) to be able to make an early assessment of liability, and
(c) to be able to make an informed offer of settlement in the case of a claim for damages.
(2) In particular, the claimant must comply with any reasonable request by the other party--
(a) to furnish specified information (in addition to the information furnished in the claim) or to produce specified documents or records, or
(b) to provide a photograph of and evidence as to the identity of the claimant.
(3) The reasonableness of a request may be assessed having regard to criteria including the following--
(a) the amount of time the claimant needs to comply with the request,
(b) whether the information sought is cogent and relevant to a determination of liability or quantum of loss, having regard to the nature of the claim,
(c) the amount of information which has already been supplied to or is available to an insurer to enable liability and quantum of loss to be assessed and an offer of settlement made,
(d) how onerous it will be for the claimant to comply with the request,
(e) whether the information is privileged,
(f) whether the information sought is sufficiently specified,
(g) the time of the request and whether the claimant will be delayed in commencing proceedings for damages by complying with the request.
(4) A duty under this section in respect of a claim for damages applies only until court proceedings are commenced in respect of the claim but if the claimant fails without reasonable excuse to comply with this section, court proceedings cannot be commenced in respect of the claim while the failure continues.”

Consideration

My task is not to make any determination as to any of the underlying issues in dispute, namely the amount of the claimant’s PAWE, whether he has undisclosed post-accident earnings or whether any part of the claim may be fraudulent.
My role is to assess whether the insurer’s request for further documents for the purpose of the insurer considering these underlying issues is reasonable (s 6.24(2) of the MAI Act) having regard to the particular circumstances of this matter and the criteria in s 6.24(3). The criteria for consideration set out in s 6.24(3) is not, in my view, exhaustive noting the word “including”. I am of the view I may also consider any other matter I consider to be relevant.
The insurer is under an obligation to be satisfied as to the validity of the claim. Pursuant to s 6.24 a claimant is under a mandatory obligation to “co-operate fully” with the insurer for such purpose.
Where a claimant fails to provide sufficient documents and/or fails to provide relevant documents requested by the insurer they potentially do so at their own peril given they bear the onus of establishing a valid claim for statutory benefits.
The insurer seeks further documents from the claimant for the following purposes:
(a)    verifying pre-accident earnings for the purpose of calculation of PAWE;
(b)    verifying post-accident loss of earnings for the purpose of determining the claimant’s entitlement to payment of weekly benefits;
(c)    verifying the validity of the claim, and
(d)    assessing whether any part of the claim may be fraudulent.
The above purposes are all permitted by s 6.24.
At present, the documents provided by the claimant are scant and there is a lack of contemporaneous documents. Further, the claimant’s evidence is riddled with inconsistencies which are not explained or not adequately explained by the claimant despite the insurer giving him ample opportunity to do so.

Documents in relation to PAWE

The current evidence is clearly insufficient for the purpose of PAWE. In this regard:
(a)    the payslips cannot be relied upon because they are both incomplete and are not contemporaneous documents (they were created post-accident for the sole purpose of the claim for weekly benefits). The payslips also relate to a family business in circumstances where the insurer has been unable to verify the claimant’s role in the business or his earnings with a third party that is, someone other than the claimant (the email address for the covering email to the claimant attaching payslips appears to potentially be an email address controlled by the claimant rather than a third person – see insurer’s Online Investigation Report);
(b)    the 2024 tax return is also not a contemporaneous document, appears to be a draft (an Australian Tax Office issued notice of assessment is not provided) and does not cover the 12 month period in question which is from 26 November 2023 to 25 November 2024;
(c)    the accountant’s letter is unverified hearsay in circumstances where there is a lack of source documents to verify the statement;
(d)    income statements only evidence intended payments (not payments actually “received” by the claimant in the relevant period). Given the questions arising about other documents the income statements should also be questioned. The income statements also do not allow calculation of PAWE over the precise 12 month period required by schedule 1, cl 4(1); and
(e)    the bank statements provided are incomplete for the purpose of PAWE as they do not extend for the whole of the 12 month pre-accident period in question.
As at the date of the accident (and prior to the accident) the registered business name of the store appeared to Sam and Nics IGA Xpress, held by the trustee for F & S Elias Trust with Sam Elias (understood to be the claimant’s father) as the trustee. The claimant has conceded he is to take over the family business at some point in 2025. It seems probable on the available evidence (including ongoing deposits into the claimant’s bank account post-accident) that the clamant might already be receiving some of the proceeds of the business (as a beneficiary of the trust for example). The claimant’s 2022 and 2023 tax returns and corresponding notices of assessment may assist to shed light on this.
The superannuation statement requested is also likely to assist to verify issues concerning pre-accident earnings, having regard to the inconsistencies in the claimant’s evidence. As the claimant’s credit is in issue, it is justifiable for the insurer to carefully scrutinise the claim for weekly benefits and the evidence provided in support. Requiring documents that go beyond the documents that might ordinarily be required is not unreasonable in this circumstance.
For the reasons set out above, I conclude the insurer’s request for further documents in relation to PAWE is reasonable.

Documents in relation to post-accident earnings/loss of earnings

The claimant contends he had no income post-accident, at least until he attempted a return to work on 3 April 2025. It appears at all material times before 13 May 2025 the claimant says he suffered a total loss of earnings. The claimant’s 13 May 2025 statement infers there have been post-accident earnings from 3 April 2025 not yet disclosed because the claimant is waiting on payslips. This is not a reasonable explanation for any non-disclosure about pre 13 May 2025 earnings, particularly given payslips are not ordinarily prepared and were only prepared at the claimant’s direction.
The claimant was provided with the surveillance and given an opportunity to explain inconsistencies between surveillance observations and the claimant’s self-reported symptoms, limitations and impediments to driving and returning to work. The claimant’s explanations in my view are inadequate and raise further concerns about the claim.
The claimant contends he made the insurer aware of his intention to trial a return to work on or about 3 April 2025. However, there is no evidence to support this contention. Rather, the evidence establishes the claimant gave no prior notification to the insurer about an intention to return to work on or about 3 April 2025. Tellingly, even when the claimant raised the issue of a possible trial return to work with the insurer, he:
(a) did not do so until 15 April 2025, 12 days after he had returned to work; and
(b) failed to disclose in this email that he had in fact already returned to work.
The claimant’s email of 15 April 2025 querying whether there was a way for him to trial a return to work in an unpaid capacity is inconsistent with his 13 May 2025 statement that he had returned to work on 3 April 2025 and also represents non-disclosure of matters the claimant is required to disclose under the MAI Act. In my view, this email is clearly misleading in the circumstances.
The claimant’s statement on 13 May 2025 that he had returned to work on 3 April 2025 in accordance with the certificate of capacity dated 3 April 2025 is inconsistent with:
(a) surveillance which, in my view, clearly establishes the claimant had returned to work by at least 25 March 2025 (given the claimant’s credit is in issue the question arises as to whether the return to work occurred earlier than this); and
(b) the certificate of capacity itself, as on 25 March 2025, 26 March 2025 and
3 April 2025 the claimant was observed working hours (6, 11 and at least 5 hours respectively) that far exceeded his certified capacity of only two hours per day (the hours worked also exceed the capacity limit of four hours per day specified in the subsequent, 28 April 2025 certificate).
The claimant has offered no explanation for the inconsistency between surveillance showing he continued to live at his own residence in Bellambi and his reports to the insurer that at all material times he was living with his parents in Berkeley due to an inability to manage ADLs (including that the claimant insisted the functional capacity assessment arranged by the insurer take place at his parents’ home in Berkeley because that was where he was living).
The claimant states that following his return to work on 3 April 2025 he was “waiting to forward payslips” yet he continued to receive payment of weekly benefits in March and April 2025 understood as calculated based on total loss of earnings. An absence of payslips is not a reasonable explanation for the claimant’s failure to disclose his return to work to the insurer until 13 May 2025.
The claimant has offered no explanation for the inconsistency between his ongoing self-reports to the insurer and treatment providers that he was unable to drive/had a driving phobia and surveillance observations made of the claimant driving. On 17 March 2025 for example, the claimant contended he could only sit in a parked vehicle and even this made him uncomfortable and on 3 April 2025 he told his general practitioner that he still struggled with a driving phobia. Yet in the same period (24 and 25 March 2025 and 3 and 7 April 2025) the claimant was seen driving on several occasions, including long distances.
Further:
(a)    the claimant denies engaging in any employment duties on 24 March 2025 but offers no explanation as to why surveillance shows the claimant engaging in employment type activities on this date (instructing other workers, putting signs on boxes, organising display cabinets and lifting a box of lettuce);
(b)    the claimant denies working on 25 March 2025 but offers no alternative explanation for his presence at the store for six hours on this date, particularly in circumstances where he contends he suffered serious psychological symptoms – it seems implausible that the claimant would remain in the store for six hours talking to customers, instructing staff, conversing with salespeople and carrying out physical employment duties after suffering such psychological symptoms;
(c)    it also seems implausible that the claimant would be able to drive 180km (Bellambi to St Leonards and return) after working in the store for six hours and after suffering such severe psychological symptoms including disorientation, freezing and an emotional breakdown on 25 March 2025, particularly given his alleged inability to drive is said to arise from psychological injury;
(d)    the claimant denies lifting concrete bricks on 26 March 2025 but does not offer any alternative explanation for footage showing him lifting and throwing objects into a skip on this date that appear to be tiles, bricks or blocks of concrete; and
(e)    the claimant does not address the fact surveillance appears to show him working many hours on 25 and 26 March 2025, despite his contention he did not return to work until 3 April 2025.
As to the claimant’s contention there is an administrative error made by the doctor in the certificate of capacity dated 3 April 2025 (the claimant says the doctor inadvertently ticked the box that the claimant had not engaged in any paid employment since the last certificate):
(a)    this does not explain how the claimant came to declare that he had not engaged in any paid employment by signing the declaration on 3 April 2025 thereby declaring that this was true and correct, despite having engaged in employment earlier that day;
(b)    this does not explain why the claimant provided an apparently false declaration to the insurer or why the claimant did not flag the contended administrative error to the insurer at the time of providing the certificate to the insurer and/or at any time before 6 May 2025 (which was after he became aware of the surveillance). There is no evidence to support the claimant’s contention he had made the insurer aware of the alleged doctor error prior to 6 May 2025, and
(c)    the contended doctor error in the 3 April 2025 certificate does not explain how the claimant came to again declare on 28 April 2025 in a subsequent certificate that he had not engaged in any paid employment.
On the evidence before me there is clearly a question of whether the claimant has received undisclosed post-accident earnings and questions about the claimant’s credit generally, which put the validity of the claim in issue. Accordingly, the insurer’s desire to further investigate the claim is reasonable in the circumstances.
Concerns also arise from various versions of bank statements submitted by the claimant. The claimant has not provided complete, consecutive, unredacted bank statements for the 12 months before the accident (relevant to PAWE) or from the date of the accident to date (relevant to the insurer’s assessment of post-accident loss of earnings).
The claimant has disclosed two bank accounts – a Westpac Life account ending 933 and a Westpac Choice account ending 366. The claimant has denied being a signatory to any other account, however, the bank records indicate the claimant is likely a signatory to at least one other account being a Westpac Flexi First account.

The claimant has provided bank statements for the periods 15 November 2023 to
15 December 2023 (statement number 129) and 15 October 2024 to 15 January 2024 (statement numbers 140, 141 and 142) for his Westpac Choice account. However, they are heavily redacted both in relation to debit and credit entries. Statement 141 mostly covers a post-accident period and shows $28,215 deposited into this account in this period, which is not accounted for by the single unredacted deposit entry of $1,500 on
28 November 2025.
Westpac Choice statement 142 shows $49,710 deposited in the post-accident period
13 December 2024 to 15 January 2025 (when the claimant says he had no income) which is not accounted for by payment of weekly benefits (paid into the Westpac Life account). A transaction summary redacted by the claimant using refined search terms shows significant sums paid regularly into the Westpac Choice account post-accident, including multiple transfers from what appears to be an undisclosed Flexi First account held or controlled by the claimant.
The transaction summaries provided in lieu of bank statements are not formal bank statements and appear to be a limited list of transactions for the Westpac Choice and Westpac Life accounts, generated by the claimant using refined search criteria such as only search for “credits” and in some cases, only for credit transactions in the specific amount of “$1,500”.
Curiously, the transaction summaries are inconsistent with the heavily redacted but formal numbered bank statements for the Westpac Choice account and for this reason, I consider the transaction summaries to be unreliable. For example, statement number 129 is for the period 15 November 2023 to 15 December 2023 and has been redacted by the claimant to show that he only received two payments of $1,500 contended to be wages in this period (on 5 and 12 December 2023) yet the transaction summaries suggest the claimant received four such payments in this same period (two additional payments on 21 and 28 November 2023 which do not appear in the redacted bank statements).
The current evidence establishes a probability exists that the claimant has received undisclosed post-accident earnings, including that he may be receiving a share of the profits of the business (potentially via trust distributions as a beneficiary of the trust controlled by his father and/or shareholder distributions from the companies in which the claimant became a shareholder in March 2025). As this probability arises it is reasonable for the insurer to require complete, unredacted bank statements for all accounts (including the Westpac Choice, Life and Flexi First accounts and any other account to which the claimant is a signatory) of the claimant from the date of the accident to date to determine the extent of any post-accident loss of earnings (in so far as the Westpac Choice account is concerned this would require the claimant to provide unredacted, consecutive statement numbers 141 to 151 inclusive).
For the reasons set out above I conclude the insurer’s request for unredacted personal and business bank statements (not transaction summaries) for all accounts to which the claimant is a signatory for the period 26 November 2024 to date together with a copy of the claimant’s superannuation account statement for the same period to be reasonable.

Documents relevant to determining the validity of the claim and whether any part of the claim may be fraudulent

The insurer also seeks further documents for the purpose of considering the validity of the claim and whether any part of the claim may be fraudulent.
I agree with the insurer that the state of the claimant’s evidence is such that the veracity of his evidence is in question in particular, in relation to post-accident loss of earnings. The reasons for reaching this conclusion are set out above. As a result, it is reasonable for the insurer to require the requested further documents.
Unredacted bank statements so as to show all transactions that is, credit and debit (deposits, transfers and withdrawals) may relevantly assist the insurer to test the validity of the claim, including that withdrawal activity may establish a pattern of activity by the claimant post-accident that is inconsistent with his reported symptoms, including the claimant’s contention he had not left the house (other than occasionally walking to the front gate) in the first two months post-accident. Deposits and transfers may assist the insurer to test the validity of the claimant’s post-accident loss of earnings contentions, including whether the claimant has been receiving any of the proceeds of the business in addition to any undisclosed wages.
In all the circumstances I conclude the insurer’s request for further information and documents in connection with assessing the validity of the claim and whether any part of the claim may be fraudulent is reasonable.

Summary of criteria considered under s 6.24(3)

The claimant has had ample time to comply with the insurer’s request (s 6.24(3)(a)).
I have set out reasons above as to why I consider the information sought to be cogent and relevant to a determination of quantum of loss (PAWE and post-accident loss of earnings), having regard to the nature of the claim (s 6.24(3)(b)).
The amount of information already supplied or available to the insurer is scant and/or incomplete and/or unreliable for reasons set out above and therefore not sufficient to enable the insurer to assess quantum of loss (s 6.24(3)(c)).
It should not be onerous for the claimant to comply with the insurer’s request for further documents (s 6,24(3)(d)). All of the requested documents should be readily available to the claimant. The claimant has to hand some bank statements and ought to be in a position to immediately provide the insurer with unredacted versions of these statements. Any statements not to hand can be requested by the claimant from his bank. Tax returns and notices of assessment will be available to the claimant via his MyGov account, and his superannuation statement should be available for download by logging into his online superannuation account. It is unclear why the claimant would be waiting on receipt of the superannuation statement (as contended) when this should be immediately available to him online by logging into his superannuation account.
None of the documents requested by the insurer could be the subject of a valid claim of privilege (s 6.24(3)(e)) and no claim of privilege is made in any event.
The information sought by the insurer is sufficiently specified (s 6.24(3)(f)) and is clear.
The claimant has had ample time to comply with the request and compliance with the request would not delay commencement of any proceedings for damages (s 6.24(3)(g)).
The claimant objects to provision of unredacted bank statements showing his withdrawal/debit transactions due to privacy concerns in relation to his spending habits. However, I consider this privacy concern does not outweigh the claimant’s disclosure obligations in connection with his motor accident claim or the insurer’s obligation to consider the validity of the claim and whether any part of the claim may be fraudulent. I have given reasons above as to how complete, unredacted bank statements may be relevant to the issues under consideration by the insurer. It is not unusual for bank statements, including withdrawals/debits, to have relevance to a claim for personal injury compensation.
Whilst I acknowledge and appreciate the claimant’s privacy concerns, I do not consider the privacy concern to be a reasonable excuse in the circumstances of this matter for the claimant’s failure to comply with the insurer’s request for further information and documents.
In my view, the claimant has not provided any reasonable excuse for failing to provide the documents requested by the insurer and the claimant is in breach of s 6.24 of the MAI Act.

CONCLUSION

For the reasons set out above I consider the request for the claimant to provide the following documents is reasonable:
(a)    unredacted personal bank statements for all accounts to which he is signatory for the period 26 November 2023 to date in PDF format;
(b)    notice of assessment for the financial year ending 30 June 2024, and
(c)    superannuation statement for the period 26 November 2023 to date in PDF format.

I conclude the claimant does not have a reasonable excuse for failing to provide these documents.

LEGISLATION AND GUIDELINES

In making this decision, I have considered the following:
· the Application, Reply and supporting documentation;
· MAI Act;

· Motor Accident Guidelines, and
· the Regulation.

[2025] NSWPICMR 31

8 October 2025