Bothe v AAI Limited ACN 005 297 807 Trading as GIO (Motor Accident Injuries)

In the matter of Bothe v AAI Limited ACN 005 297 807 Trading as GIO (Motor Accident Injuries), the applicant sought leave to present additional information and evidence to the tribunal, specifically clinical notes held by Dr Andrew Serafim and a report dated 11 July 2021. The dispute centered around the respondent's refusal to approve the cost of a right total hip replacement for the applicant. The Administrative and Commercial Division of the Administrative Appeals Tribunal (ACAT) was tasked with reviewing the application and determining whether the additional information could be admitted as evidence.

The legal issues before the court were whether the clinical notes and the report could be admitted as evidence, given that they were not reasonably available at the time the decision under review was made. The tribunal had to consider the relevance of the information to the dispute, the timing of the request for the information, and whether admitting the information would prejudice the respondent.

The tribunal held that the clinical notes were relevant and should be admitted, as they were not reasonably available to the decision-maker at the time of the reviewable decision. However, the tribunal denied leave to admit the report dated 11 July 2021, as it did not contain sufficient information to enable the tribunal to amend or substitute the reviewable decision. The tribunal found that if the reviewable decision was set aside, further medical opinion would be necessary to determine whether the total hip replacement was necessary and reasonable treatment.

The tribunal set aside the respondent's reviewable decision and remitted the matter back to the respondent for reconsideration in accordance with the Motor Accident Injuries Act 2019 and the Motor Accident Injuries Guidelines. The tribunal also ordered the applicant to provide an itemised list of costs incurred and gave the respondent the opportunity to submit any relevant information or objections regarding the costs. The tribunal would make a decision on the applicant's application for costs once it received the necessary information from both parties.