AAI Limited trading as AAMI v Boga

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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…
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Details
Case
[2020] NSWSC 1903
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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