AAI Limited trading as AAMI v Boga - [2020] NSWSC 1903

Supreme Court

New South Wales

Medium Neutral Citation: AAI Limited (t/a AAMI) v Boga [2020] NSWSC 1903
Hearing dates: 13 November 2020
Date of orders: 24 December 2020
Decision date: 24 December 2020
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1) The time for the filing of the summons is extended until 29 May 2020.
(2) The amended summons is dismissed.
(3) The plaintiff to pay the first defendant’s costs.

Catchwords:
ADMINISTRATIVE LAW — Whether reviewable error of law — Jurisdictional error — Error of law on the face of the record — Injured person assessed for degree of permanent impairment under Motor Accidents Compensation Act 1999 (NSW) — Whether assessor failed to give reasons — "Nguyen principle" — Whether assessor failed to assess in accordance with the guidelines — Whether assessor bound to raise inconsistencies observed in earlier medico-legal reports — Where assessor observed no inconsistency — Whether denial of procedural fairness — Whether proper officer of the Authority applied the incorrect statutory test — Extension of time

Legislation Cited:
Motor Accidents Compensation Act 1999 (NSW), Pt 3.4, ss 58, 60, 61, 62, 63, 131, 132, 133
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), r 59.10

Cases Cited:
AAI Limited v Fitzpatrick [2015] NSWSC 1108
Alchinv Daley [2009] NSWCA 418
Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22
Campbelltown City Council v Vegan & Ors (2006) 67 NSWLR 372; [2006] NSWCA 284
Collector of Customs v Pozzolanic Enterprises Pty Ltd; Collector of Customs v Pressure Tankers Pty Ltd (1993) 43 FCR 280; [1993] FCA 456
Dominice v Allianz Australia Insurance Ltd [2017] NSWCA 171
IAG Ltd (t/as NRMA Insurance) v Chahoud [2019] NSWSC 767
Insurance Australia Group Limited t/as NRMA Insurance v Saraceni [2020] NSWSC 1045
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11
Nguyen v Motor Accidents Authority of New South Wales & Anor [2011] NSWSC 351
Partridge v IAG Limited t/as NRMA Insurance [2019] NSWSC 127
Politis v Commissioner of Taxation (Cth) [1988] FCA 446; 20 ATR 108
Qushair v Raffoul [2009] NSWCA 329
Re Minister for Immigration and Multicultural Affairs; Ex Par Miah (2001) 206 CLR 57; [2001] HCA 22
Rodger v De Gelder & Anor (2011) 80 NSWLR 594; [2011] NSWCA 97
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43

Texts Cited:
American Medical Association, Guides to the Evaluation of Permanent Impairment (4th ed)
State Insurance Regulatory Authority, Motor Accidents Permanent Impairment Guidelines (2018), cls 1.6, 1.8, 1.9, 1.10, 1.17, 1.18, 1.41

Category: Principal judgment
Parties: AAI Limited (trading as AAMI) (Plaintiff)
Suleyman Boga (First Defendant)
State Insurance…

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.

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Details

Case: [2020] NSWSC 1903
Decision Date: 24 December 2020

CaseChat Overview and Summary

AAI Limited trading as AAMI sought judicial review of a decision by the Motor Accident Authority of New South Wales (MAA) to assess the permanent impairment of a claimant under the Motor Accidents Compensation Act 1999 (NSW). The claimant had been assessed by a medical assessor, who determined a 12% degree of permanent impairment. The Authority subsequently rejected the claimant's application for an internal review and dismissed his appeal. The central issue was whether there was a reviewable error of law in the Authority's decision.

The court examined whether the assessor's failure to provide reasons constituted a jurisdictional error. It considered the "Nguyen principle," which holds that such a failure might be a jurisdictional error if the assessment was made in accordance with guidelines that required reasons to be given. The court found that the assessor was not bound by the guidelines to provide reasons and thus, the failure to do so was not a jurisdictional error. Additionally, the court held that the assessor was not required to raise inconsistencies observed in earlier medico-legal reports if they did not consider them inconsistent. The court found that the assessor's observations were reasonable, and therefore, the claimant's argument regarding procedural fairness failed.

The court determined that the Authority had not made an error of law in rejecting the claimant's application for an internal review and dismissing his appeal. The court also considered whether the Authority applied the incorrect statutory test, but found that the Authority had correctly applied the relevant statutory provisions. The court further addressed the issue of the extension of time, holding that the Authority had the discretion to extend time and had exercised it appropriately. Consequently, the court dismissed the application for judicial review.

Orders