Pinarbasi v AAI Ltd t/as GIO - [2023] NSWSC 80

Supreme Court

New South Wales

Medium Neutral Citation: Pinarbasi v AAI Ltd t/as GIO [2023] NSWSC 80
Hearing dates: 1 February 2023
Date of orders: 14 February 2023
Decision date: 14 February 2023
Jurisdiction: Common Law
Before: Schmidt AJ
Decision:
I order that:
1. The delegate’s decision is quashed.
2 There be no order as to costs in relation to the President’s appearance.
3. In the event that the other parties wish to be heard on the question of costs they should approach within 14 days and if there is any dispute, file short written submissions about what lies in dispute. Otherwise consent orders should be filed.

Catchwords:
ADMINISTRATIVE LAW — motor vehicle accident — Motor Accidents Injuries Act 2017 (NSW) — claim rejected by insurer — application for review —medical assessor finds shoulder injury not minor — insurer’s application for review of assessor’s certificate — gateway function of President of Personal Injury Commission of NSW under section 7.26(5) of the Act— where delegate referred review application to review panel — whether there is an implied obligation to give reasons for decision — gateway function of an administrative character — no implied obligation to give reasons for decision
ADMINISTRATIVE LAW — judicial review — jurisdictional error — gateway function requiring President to consider whether there was reasonable cause to suspect material error in medical assessment — whether assessor not accepting medical opinions relied on by insurer on a medical dispute can provide the basis for the required statutory opinion — delegate fell into error — decision to refer assessment to review panel quashed

Legislation Cited:
Motor Accident Injuries Regulation 2017 (NSW), Pt 1, cl 4
Motor Accidents Compensation Act 1999 (NSW), s 63
Motor Accidents Injuries Act 2017 (NSW), Pt 7, Div 7.5, ss 1.6, 4.4, 7.13, 7.16, 7.19, 7.20, 7.21, 7.23, 7.26
Supreme Court Act 1970 (NSW), s 69
Workplace Injury Management and Workers Compensation Act1998 (NSW), s 327

Cases Cited:
AAI Ltd v Fitzpatrick [2015] NSWSC 1108
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353; [1949] HCA 26
Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24
Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 248
Doyle’s Farm Produce Pty Ltd v Murray Darling Basin Authority (No 2) (2021) 106 NSWLR 41; [2021] NSWCA 246
Insurance Australia Ltd v Marsh [2022] NSWCA 31
Meeuwissen v Boden (2010) 78 NSWLR 143; [2010] NSWCA 253
Public Service Board (NSW) v Osmond (1986) 159 CLR 656; [1986] HCA 7
QBE v Miller [2013] NSWCA 442
R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13
Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission (NSW) [2007] NSWCA 149
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43

Category: Principal judgment
Parties: Mr Ahmet Duran Pinarbasi (Plaintiff)
AAI Ltd t/as GIO (First Defendant)
Ms Ratula Gupta, Delegate of the President of the…

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: [2023] NSWSC 80
Decision Date: 14 February 2023

CaseChat Overview and Summary

In Pinarbasi v AAI Ltd t/as GIO, the dispute centred around a motor vehicle accident claim under the Motor Accidents Injuries Act 2017 (NSW). Pinarbasi, the claimant, had filed a claim for compensation after an accident. The insurer, AAI Limited trading as GIO, rejected the claim. The claimant sought review of this decision, and a medical assessor concluded that Pinarbasi's shoulder injury was not minor. The insurer then applied for a review of the assessor's certificate. The case reached the court as it involved the President of the Personal Injury Commission of NSW exercising a gateway function under section 7.26(5) of the Act to decide whether there was reasonable cause to suspect a material error in the medical assessment. The President referred the review application to a review panel, a decision which Pinarbasi challenged.

The primary legal issues the court had to decide were whether the President's gateway function was administrative in nature, and if so, whether there was an implied obligation for the President to give reasons for the decision to refer the case to the review panel. Additionally, the court had to determine if the President's decision to refer the case to the review panel constituted a jurisdictional error, particularly in relation to whether the President had considered the statutory criteria correctly.

The court found that the President's gateway function was indeed of an administrative character, thus subject to judicial review. However, it held that there was no implied obligation for the President to provide reasons for their decision to refer the case to a review panel. The court further ruled that the President's decision to refer the case constituted a jurisdictional error. This was based on the President's failure to consider whether there was reasonable cause to suspect a material error in the medical assessment, particularly when the medical assessor had not accepted the medical opinions relied upon by the insurer. The court concluded that the President's decision to refer the matter to a review panel was erroneous and quashed the decision.

The final orders of the court quashed the decision of the President to refer the case to the review panel, thereby invalidating the referral and leaving the initial assessment by the medical assessor as the determination of the case.

Orders