Rotella v AAI Ltd t/as AAMI - [2025] NSWPICPD 49

PRESIDENTIAL DECISION (Motor Accidents Division)
CITATION:	Rotella v AAI Ltd t/as AAMI [2025] NSWPICPD 49
CLAIMANT:	Mario Rotella
INSURER:	AAI Ltd t/as AAMI
FILE NUMBER:	R-M23167/24
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF PRESIDENT’S DECISION:	26 June 2025
ORDERS:	1. Pursuant to r 132 of the Personal Injury Commission Rules 2021, I order that paragraph [23] of the Certificate of the Medical Review Panel issued 11 April 2025 (R-M23167/24) be redacted in full.
CATCHWORDS:	MOTOR ACCIDENTS – Application for redaction and/or de-identification of aspects of a Medical Review Panel Certificate, rule 132 of the Personal Injury Commission Rules 2021 considered and applied – Section 58 of the Personal Injury Commission Act 2020 considered
HEARING:	25 June 2025
REPRESENTATION:	Insurer and law firm:
Ms J Gumbert, counsel
Moray & Agnew Lawyers
Claimant:
Mr Noun (paralegal) (appearing with leave)
Sharah Henville Lawyers

BACKGROUND

Mr Mario Rotella, the claimant, suffered injury in a motor vehicle accident on 26 May 2017. The respondent to the claim is the relevant motor vehicle third party insurer, AAI Limited trading as AAMI. The insurer’s lawyers were at all times the firm Moray & Agnew Lawyers. The claimant’s claim is brought under the Motor Accidents Compensation Act 1999 (MAC Act).
Briefly, the relevant background facts to this dispute are as follows. The claimant brought a claim for multiple types of medical treatment and care said to be related to the subject accident. He was assessed by a Personal Injury Commission (Commission) Medical Assessor, Medical Assessor Shahzad, who issued a Certificate dated 3 June 2024, which decision denied the claims. The claimant then made an application for the referral of his medical treatment claims for assessment by a Commission Medical Review Panel (Panel).
A Panel was convened to review the claimant’s 40 claims for medical treatment. A Direction was issued by the Panel on 12 November 2024 (Direction). The Direction made various comments about how the claim had been framed, noting that “The Panel may comment on the drafting of the medical disputes when the reasons are delivered.” The Direction then proceeded to make standard directions about the filing of submissions and the appointment of a medical examination of the claimant. I would remark that these Directions were directed to the 40 distinct disputes that were live between the parties. The insurer responded to the Direction in a submission dated 22 November 2024, rephrasing the claims which had the effect of expanding the dispute to 120 separate disputes.
The Panel issued a Certificate of Determination dated 11 April 2025 (Certificate), which revoked the 3 June 2024 Certificate and replaced it with their own decision. The Certificate is a detailed decision of 30 pages, comprising 105 paragraphs. At paragraph [23] of the Certificate, the Panel made certain remarks which were critical about the conduct of the proceedings, which have led to this application being made and which I am called upon to decide. I will more fully describe this application below. The Certificate itself has not been challenged.
The subject accident predated the commencement of the Personal Injury Commission on 1 March 2021. However, by virtue of the transitional provisions contained in the Personal Injury Commission Act 2020 (2020 Act),[1] the Commission is the body with the authority to decide the claimant’s dispute.
[1] See clause 14D of Schedule 1 of the 2020 Act.

THE APPLICATION

The insurer and the insurer’s solicitors make a joint application under r 132 of the Personal Injury Commission Rules 2021 (Rules) for the redaction of paragraph [23] of the Certificate in its entirety and that they both be identified in the Certificate. Given the nature of the application, I will merely refer to the offending paragraph without re-producing it in these reasons, as to do so may render nugatory any redaction order that I may make.
For ease of reference, I will refer to the law firm and the insurer as the applicants on this application. No differentiation between the positions of the respective applicants’ is made in this application, it is apparent to me that the submissions are joint in all respects.
The application is as set out in the written submission from Moray & Agnew Lawyers dated 30 April 2025. This was supported by an affidavit of the solicitor sworn 19 June 2025, which was admitted before me without objection at the hearing on 25 June 2025.[2] The written submissions were augmented by Counsel’s oral submissions before me on 25 June 2025. The applicants submit the following;
“In support of this application, the insurer makes the following submissions with reference to the considerations set out in Rule 132(4) of the PIC Rules:
(a)     In circumstances where the insurer lodged the further submissions at the direction of the Review Panel, the insurer submits that the requested redaction or de-identification is consistent with the objects of the PIC Act, in particular Section 3(b)(i) of the PIC Act ‘to ensure the Commission is accessible, professional and responsive to the needs of all of its users’, Section 3(d) of the PIC Act ‘to ensure that decisions of the Commission are timely, fair, consistent and of high quality, Section 3(e) of the PIC Act ‘to promote public confidence in the decision-making of the Commission and in the conduct of its Members’, and Section 3(f)(ii) of the PIC Act ‘to ensure the Commission establishes effective liaison and communication with interested parties concerning its processes and the role of the Commission.
(b)     In circumstances where the comments at paragraph 23 of the Review Panel Certificate relate exclusively to the purported conduct of the insurer and the insurer’s legal representatives, it is submitted that the requested redaction does not impede the Commission’s object of being ‘open and transparent about its processes.’
(c)     Similarly, it is submitted that the requested de-identification would not impose prejudice upon the proper administration of justice. On the other hand, it is respectfully submitted that publication of the Certificate with paragraph 23 would occasion significant prejudice to Moray & Agnew and the insurer, in circumstances where they did not have the opportunity to respond to the assertions made by the Review Panel prior to the Certificate being issued.
(d)     It is also submitted that the requested redaction is in the public interest and ‘significantly outweighs’ the public interest of ‘open justice’ in circumstances where the insurer and Moray & Agnew were not afforded procedural fairness. Furthermore, the statements in that paragraph relate exclusively to the insurer and Moray & Agnew and do not impact the Review Panel findings and/or decision.”[3] (emphasis in original)
[2] Exhibit A on the application.
[3] Appellant’s submissions 30 April 2025, [13].
Formally, the applicants seek the redaction of paragraph [23] in its entirety and that the decision be de-identified by removing reference to the law firm and the insurer.[4]
[4] Applicants’ submissions 30 April 2025, [12(a) and (b)].
The claimant filed a short submission dated 17 June 2025. The claimant submitted that the redaction order sought would have no bearing on the claim and whether the order was made was a matter for the Commission. In short, the effect of the submission was not to actively oppose the order sought.

LEGISLATION

Section 58(1) of the Personal Injury Commission Act 2020 provides:
“58 Publication of decisions
(1) The Commission must cause details of the following to be published in accordance with the Commission rules—
(a) decisions of the Commission,
(b) decisions of merit reviewers under Division 7.4 of the Motor Accident Injuries Act 2017,
(c) decisions of review panels for merit reviewers under Division 7.4 of the Motor Accident Injuries Act 2017,
(d) decisions of Appeal Panels for medical assessments under Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998,
(e) decisions of review panels for medical assessments under Part 3.4 of the Motor Accidents Compensation Act 1999 or Division 7.5 of the Motor Accident Injuries Act 2017,
(f) any other decisions prescribed by the Commission rules.”
Rule 132 of the Personal Injury Commission Rules 2021 provides:
“132 De-identification or redaction of publishable decisions
(1)     The Commission or the President may, of their own motion or on the application of a relevant person, direct either or both of the following—
(a) that all or part of a publishable decision be de-identified before it is published,
(b) that part of a publishable decision be redacted before it is published.
(2)     An application for a direction may be made during, or after the completion of, the proceedings in which the publishable decision is issued.
(3)     An application for a direction is to be made to—
(a) for proceedings being heard by the Commission that have not been completed—the Commission, or
(b) for other proceedings that have not been completed—the President, or
(c) for proceedings that have been completed—the President within 7 days after the publishable decision is issued.
(4)     In determining an application for a direction, the Commission or the President is to have regard to the following matters—
(a) the objects of the PIC Act and enabling legislation and, in particular, the object that the Commission be open and transparent about its processes,
(b) the prevention of prejudice to the proper administration of justice,
(c) the safety, health and wellbeing of a person affected or named by the publishable decision,
(d) the views of any other party to the proceedings,
(e) whether it is necessary in the public interest for the direction to be given and whether the public interest in giving the direction significantly outweighs the public interest in open justice.
(5)     If the Commission grants an application for a direction under subrule (3)(a), the President may, despite the direction of the Commission, direct that the publishable decision be published without the de-identifications or redactions directed by the Commission or with different de-identifications or redactions.
(6)     In this rule—
publishable decision means a decision details of which are required to be published by section 58 of the PIC Act.
relevant person, in relation to an application for a direction, means—
(a) a party to the proceedings in which the publishable decision is made, or
(b) a person named in the publishable decision, or
(c) another person the Commission or the President considers to have a sufficient interest to make the application.”

Some principles about redaction and/or de-identification of decisions in the Commission pursuant to r 132 of the Rules

Section 58 of the 2020 Act reflects the longstanding position of the general law that justice takes place in the open and that orders regarding suppression or non-publication are departures from that principle.[5] Section 58 of the 2020 Act reflects a very clear Parliamentary intention supporting the general principle of open justice. To this general rule I would add that the categories of redaction and de-identification provided for by r 132 should also be considered as departures from this general principle. Given the general principle and the clear Parliamentary intention as expressed in the mandatory nature of Section 58 of the 2020 Act, decision-makers need to be satisfied that in any r 132 application, that the case is an appropriate one in which to depart from the general principle.
[5] Council of New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339 (EFA), [217]; Misrachi v The Public Guardian [2019] NSWCA 67 (Misrachi), [10]–[13]; Haddad v The GEO Group Australia Pty Ltd (No 2) [2024] NSWCA 140 (Haddad), [20]–[22].
The scheme regarding the publication of decisions in the Commission is as follows. Section 58 mandates the publication of the categories of Commission decisions appearing in s 58(1) of the 2020 Act. This is consistent with the statutory objects contained in s 3 of the 2020 Act.[6] Rule 132 provides an exception to this general rule by permitting redaction and/or de-identification of all or part of a decision after the consideration of the various subclauses in r 132. This balances the need for open justice and the need in some cases to have regard to, inter alia, the safety and wellbeing of “relevant persons”,[7] and a weighing of the public interest as opposed to what I will describe as the default position, namely that justice takes place in the open.
[6] See especially s 3(b)(ii), s 3(e) and s 3(f) of the 2020 Act.
[7] Rule 132(6) of the Rules.
The power to be exercised under r 132 is discretionary. The factors in the rule are matters for which regard is to be had, but this is in the context of the scheme of the Act (outlined above) and the position at general law that justice takes place in the open. This is the starting point for any consideration of an application under r 132, and which must be displaced by a consideration and weighing of the factors in r 132.
The applicants bear the burden of displacing the usual position, which mandates publication of decisions without redaction or de-identification.

CONSIDERATION

Before turning the crux of this application, it is necessary to set out some formal matters which establish that the power or authority for the orders sought by the applicants are present in this matter.
The Certificate issued in this matter constitutes a decision as contemplated by s 58(1)(e) of the 2020 Act. It is a decision of a Medical Review Panel constituted under the MAC Act and is therefore a “publishable decision” as defined in r 132(6).
The applicants for the order seeking the redaction of paragraph [23] of the Certificate, I accept are both “relevant persons” for the purposes of r 132(6), as the insurer and the law firm are both named in a publishable decision.[8] As a consequence of this status, both have standing to seek an order under the rule.
[8] Rule 132(6)(b) of the Rules.
As President, I hold appointments to each Commission Division[9] and am empowered to make orders under r 132.
[9] Section 15(1) of the 2020 Act.
The controversy in this application can be stated in the following terms. Doubtless the application for a medical assessment and then the application for a review was somewhat tortuous with various claims being advanced which were vague and poorly particularised. From my reading of the submissions before the Panel and the Certificate, the succinct articulation of the disputes to be quelled was an important task for the Panel to finalise before embarking on its deliberations. For this reason, the Panel quite properly issued the Direction in order to bring some clarity to the dispute they would decide. The Direction did warn the parties that comment may be made on the drafting of the medical dispute when their reasons were delivered. This was a situation that was obvious to the parties.
Notwithstanding this position, the applicants in their submission in response to the Direction rephrased the disputes, which had, I accept, the unintended effect of multiplying the disputes before the Panel.[10] Counsel explained that as two questions were alive in respect to each claim, that is causation and whether the treatment was reasonable and necessary, this had the effect of doubling the number of matters requiring decision by the Panel. Counsel submitted that the solicitor’s intention was to assist the Panel. This submission is supported by what appears at paragraph [29] of Exhibit A. Counsel also submitted that this situation could fairly be described as a breakdown in communication between the Panel and the applicants.
[10] Submission dated 22 November 2024, Exhibit A, pp 82; 95–98, [11]; [35]–[45].
However, notwithstanding the expressed intention to assist the process (which explanation I accept), the effect of the applicants’ submission in response to the Direction only served to exacerbate an already labyrinthian dispute. I can thus well understand the frustration expressed by the Panel at paragraph [23]. The intent of the Direction, on its face, was designed to bring order to the dispute and was in no way inviting its expansion, no matter how well intentioned.
The applicants complain that they were not afforded procedural fairness by the Panel with respect to the precise remarks which appear at paragraph [23] of the Certificate. The solicitor deposes at paragraph [28] of Exhibit A as to her surprise at the contents of this paragraph and the fact that the law firm had been given no opportunity to be heard on the matter before the Certificate was issued.
In my opinion, the element of procedural fairness, or a lack thereof, on this issue does not weigh highly in the applicants’ favour. This was a complicated dispute which the Panel was doing its best to manage. The Direction is expressed in such terms so as to alert the parties to the Panel’s concerns and noted specifically that comments might be made. I understand that the complaint is that no indication of the specific comment, which was critical of the applicants, had been foreshadowed. But experienced litigators like the law firm and the insurer must have understood the Direction. And if it was not understood, or since the applicants were apparently convinced of the correctness of their approach, the matter should have been relisted before the Panel for further directions. This would have otherwise avoided the need for the Panel to make its remarks which in turn produced the obvious umbrage that has been taken to paragraph [23] and the need for this application to be made.
I would also remark that it is a part of the decision-making process, whether judicial or administrative, for remarks to occasionally be made in decisions about the conduct of the parties in a matter.[11] Decisions are read by practitioners and remarks like those appearing at paragraph [23] can serve as a cautionary warning for others. Such comments are also a vehicle for decision-makers to control and manage the conduct of matters before them. This is a fact of life for all lawyers and clients appearing in the courts and tribunals of this state, especially parties who regularly appear such as the applicants for the order.
[11] See for example Bevan v Bingham [2023] NSWSC 19, [7]–[11] per Bellew J; Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163, [441]–[442].
In the applicant’s favour, I accept that the redaction of the offending paragraph would not prejudice the proper administration of justice in this matter. This is confirmed by the claimant who submits that it has no bearing on his claim. Reviewing the paragraph and the Certificate as a whole, I am in concurrence with this view. The integrity of the decision would be unaffected by an order redacting paragraph [23].
I would also note that the claimant does not oppose the application, which is a factor in the applicants’ favour.
Additionally, when one considers the offending paragraph, were it to be redacted, this would have little or no adverse effect upon the public interest in the publication of the decision. The paragraph is not part of the Panel’s dispositive reasoning, without the paragraph any reader would readily be able to read and understand the Panel’s reasoning process.
Finally, I turn to counsel’s submissions about possible adverse effects upon the wellbeing and health of those who are subject to the criticism in paragraph [23]. Whilst no evidence has been led to substantiate this submission, and the terms of Exhibit A are silent on this aspect, I accept that such criticism could tend to have the effect asserted. Whilst criticism, sometimes publicly, is the hard lot of professional life, there is nothing in the applicants’ behaviour in this matter that warrants that outcome in this matter. I have accepted that their intention was to assist the Panel. Whilst the expressed intention was fine, its execution did not achieve that aim.

For the reasons outlined above, on balance, I am prepared to accede to the application and redact paragraph [23] of the Certificate in its entirety. I am satisfied that the matters referred to in r 132 that have been established are sufficient for me to make the order sought without adversely affecting the public interest or the administration of justice.
I was much persuaded by the attitude of the claimant, the submissions made by counsel for the applicants that the paragraph was not part of the Panel’s reasoning and that the decision’s integrity would therefore not be affected. I also take into account the potential for such criticism to adversely affect the applicants.
The applicants have also sought an order de-identifying both of them in the Certificate. I decline to make this order. Once paragraph [23] is redacted in full, the Certificate is merely the usual type of decision regularly issued by the Commission. The applicants’ real concerns are with what appeared in paragraph [23]. Those concerns are addressed in full by the order that I will make. No public interest is served by making this additional order.
Finally, I hasten to add that by making this order I am not being critical of the Panel. The Panel was dealing with a complicated matter and their frustration with the parties’ approach was manifest. Additionally, the making of this order should not be seen as an affirmation of the approach taken by the applicants. Experienced litigators like the applicants should have taken the steps I have outlined above before unilaterally attempting to rephrase, and thus expand the dispute.

DECISION

Pursuant to r 132 of the Personal Injury Commission Rules 2021, I order that paragraph [23] of the Certificate of the Medical Review Panel issued 11 April 2025 (R-M23167/24) be redacted in full.

Judge Phillips
President

26 June 2025