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AAI Ltd T/as GIO v McGiffen

AAI Ltd T/as GIO v McGiffen

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Case Copied 25 August 2016 47 min read

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Court of Appeal
Supreme Court

New South Wales

Case Name:	AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen
Medium Neutral Citation:	[2016] NSWCA 229
Hearing Date(s):	25 May 2016
Decision Date:	25 August 2016
Before:	Meagher JA; Simpson JA; Payne JA
Decision:	Appeal dismissed with costs.
Catchwords:	ADMINISTRATIVE LAW – judicial review – claim for compensation for injuries suffered in motor accident – Motor Accidents Compensation Act 1999 (NSW) – medical assessment – finding that injuries not caused by motor accident – no requirement for assessment of degree of permanent impairment – finding confirmed by review panel – application for judicial review – Supreme Court Act 1970 (NSW), s 69 – primary judge quashed certificate of review panel – jurisdictional error – causation – Motor Accidents Compensation Act 1999 (NSW), s 58(1)(d) – review panel failed to apply itself to real question posed by s 58(1)(d) – statutory function under s 58(1)(d) not exercised – jurisdictional error established ADMINISTRATIVE LAW – judicial review – motor vehicle accident – error on the face of the record – whether primary judge was correct to conclude that review panel erred in law by finding critical fact on basis of no evidence
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW), ss 3, 44, 57, 58, 59, 60, 61, 63, 65, 131, 133 Supreme Court Act 1970 (NSW), s 69
Cases Cited:	Ali v AAI Ltd [2016] NSWCA 110 Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 443 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 Frost v Kourouche [2014] NSWCA 39; 86 NSWLR 214 Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 Rodger v De Gelder [2011] NSWCA 97; 80 NSWLR 594 Rodger v De Gelder [2015] NSWCA 211; 71 MVR 514 Spratt v Perilya Broken Hill Ltd; Spratt v Rowe [2016] NSWCA 192 Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480
Category:	Principal judgment
Parties:	AAI Ltd trading as GIO as agent for the Nominal Defendant (Applicant) Clinton McGiffen (First Respondent) State Insurance Regulatory Authority (Second Respondent) Assessor Richard Crane as medical assessor appointed by State Insurance Regulatory Authority (Third Respondent) Assessors Ian Cameron, Robin Fitzsimmons and John Carter as Medical Review Panel appointed by State Insurance Regulatory Authority (Fourth Respondent)
Representation:	Counsel: M A Robinson SC/A Poljak (Appellant) E G Romaniuk SC/R D Glover (First Respondent) Submitting Appearance (Second, Third and Fourth Respondents) Solicitors: Moray & Agnew (Appellant) Edwards Michael Powell Lawyers (First Respondent) Crown Solicitor’s Office of NSW (Second,…

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: [2016] NSWCA 229
Decision Date: 25 August 2016

CaseChat Overview and Summary

AAI Ltd trading as GIO (the insurer) appealed a decision of the Supreme Court of New South Wales to the Court of Appeal. The dispute concerned a claim for compensation for injuries allegedly suffered by Mr McGiffen in a motor accident. A medical assessment found that Mr McGiffen's injuries were not caused by the motor accident, and therefore, there was no requirement to assess the degree of permanent impairment. This finding was subsequently confirmed by a review panel. Mr McGiffen then applied to the Supreme Court for judicial review of the review panel's decision.

The primary judge quashed the certificate of the review panel, finding that it had committed a jurisdictional error. The insurer argued on appeal that the primary judge erred in concluding that the review panel had made an error of law on the face of the record by finding a critical fact on the basis of no evidence. The central legal issue was whether the review panel, in confirming the finding that the injuries were not caused by the motor accident, had failed to apply itself to the real question posed by section 58(1)(d) of the *Motor Accidents Compensation Act 1999* (NSW), thereby failing to exercise its statutory function and committing a jurisdictional error.

The Court of Appeal held that the review panel had indeed committed a jurisdictional error. The panel's finding that the injuries were not caused by the accident was a finding of fact that was central to the determination of the claim. However, the court found that the panel had failed to properly consider the evidence before it in relation to causation, and in doing so, had not applied itself to the actual question required by section 58(1)(d) of the Act. This failure meant that the statutory function entrusted to the panel had not been exercised, constituting a jurisdictional error. The appeal was therefore dismissed.

Orders

Orders of the court

Appeal dismissed with costs.

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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