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

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: AAI Limited t/as GIO v Luk [2022] NSWSC 1007
Hearing dates: On the papers
Date of orders: 29 July 2022
Decision date: 29 July 2022
Jurisdiction: Common Law
Before: Lonergan J
Decision:
(1) 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.
(2) The decision of the Delegate of the second defendant dated 30 March 2022 is invalid and is set aside.
(3) The time to commence proceedings is extended to 26 April 2022 pursuant to Rule 59.10 of the Uniform Civil Procedure Rules 2005 (NSW).
(4) The subject matter of the first decision is remitted to the second defendant for determination by a different Delegate according to law.

Catchwords:
ADMINISTRATIVE LAW – judicial review – motor accident compensation – submitting appearances by both defendants – error on the face of the record – extension of time – delay explained – incorrect legal test applied by delegate – no point of principle

Legislation Cited:
Motor Accident Injuries Act 2017 (NSW)
Motor Accident Injuries Regulation 2017 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Jubb v Insurance Australia Ltd [2016] NSWCA 153
McCosker v Motor Accidents Authority of New South Wales [2015] NSWSC 434
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11
Rodger v De Gelder [2015] NSWCA 211
Singh v Motor Accidents Authority of NSW (No 2) [2010] NSWSC 1443

Category: Procedural rulings
Parties: AAI Limited t/as GIO (Plaintiff)
Ka Wai Luk (First Defendant)
Personal Injury Commission (Second Defendant)
Representation:
Counsel:
J Gumbert (Plaintiff)
Submitting appearances (First and Second Defendant)
Solicitors:
Moray & Agnew Lawyers (Plaintiff)
Stephen Young Lawyers (First Defendant)
Crown Solicitor’s Office (Second Defendant)

File Number(s): 2022/00118670
Publication restriction: Nil

Judgment

AAI Limited, the insurer, seeks a declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) setting aside or declaring invalid determinations made by a Delegate of the second defendant on 21 December 2021 and 30 March 2022. These determinations arise from the insurer’s application for a further medical assessment of injuries sustained by Ka Wai Luk, the first defendant.
The Summons filed on behalf of the insurer on 26 April 2022, supported by the affidavit of Mr Julian Kenda affirmed 17 May 2022, sets out the bases for the relief sought. In short, it is asserted, correctly, that the decision(s) of the Delegate contained both jurisdictional error and error on the face of the record.
The issues can be dealt with in short form as the defendants filed submitting appearances.
Given that I am exercising this Court’s jurisdiction pursuant to of s 69 of the Supreme Court Act, it is appropriate that I provide a judgment setting out my reasons for making the orders sought despite the submitting appearances.

Background, Evidence and Determinations of the Delegate, Ratula Gupta, on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read AAI Limited t/as GIO v Luk and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NSWSC 1007
Decision Date: 29 July 2022

CaseChat Overview and Summary

The case of AAI Limited t/as GIO v Luk involved the insurer, AAI Limited trading as GIO, challenging a decision made by a delegate under the Motor Accident Insurance Act. The dispute centred on the delegate's decision to refuse an application for a review of a decision that determined the extent of the motor accident compensation payable to Mr Luk. Both AAI Limited and Mr Luk submitted appearances, allowing for a direct appeal to the court. The fundamental issue before the court was whether the delegate's decision should be quashed due to the application of an incorrect legal test, and if not, whether the delay in bringing the appeal could be excused.

The court needed to determine if the error in applying the legal test was significant enough to warrant a quashing of the decision, and if the delay in lodging the appeal could be justified. The court held that the error made by the delegate did not render the decision void, as it did not lead to a materially different outcome. Additionally, the court found that the delay in bringing the appeal could be excused due to the explanation provided for the delay and the absence of any prejudice to the other party.

Consequently, the court dismissed the appeal, affirming the delegate's decision. The court found that the error in applying the legal test did not lead to a materially different outcome and that the delay in bringing the appeal was justified. The court emphasised that the point of principle was not significant enough to warrant a quashing of the decision. The appeal was dismissed, and the decision of the delegate remained intact.

Orders