Somyaying v AAI Limited t/as GIO - [2021] NSWSC 1466

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Somyaying v AAI Limited t/as GIO [2021] NSWSC 1466
Hearing dates: 9 July 2021
Date of orders: 15 November 2021
Decision date: 15 November 2021
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court Orders:
(1) The Review Panel decision and certificate dated 16 January 2020 is set aside.
(2) The proceedings are remitted to the second defendant for determination by a differently constituted Appeal Panel according to law.
(3) The first defendant is to pay the plaintiff’s costs on an ordinary basis.

Catchwords:
JUDICIAL REVIEW – Assessment of whole body impairment – Extension of time – UCPR 59.10 –Failure to respond to a substantial and clearly articulated argument – Duty to provide reasons – Jurisdictional error – Error on the face of the record – Denial of procedural fairness – Decision of Review Panel set aside

Legislation Cited:
Motor Accident Authority Guidelines, cl 1.145
Motor Accidents Compensation Act 1999 (NSW), ss 44, 57 to 58, 60 to 63, 106, 131 and 133
SIRA Motor Accident Permanent Impairment Guidelines, Cl 1.111 to 1.117, 1.138 to 1.142, Table 7, Table 8
Uniform Civil Procedure Rules 2005 (NSW), rr 1.2, 59.10

Cases Cited:
Allianz Australia Insurance Limited v Francica [2012] NSWSC 1577
Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244
Balde v AAI Ltd t/as GIO [2020] NSWSC 1623
Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356
Campbelltown City Council v Vegan (2006) NSWCA 284
Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576
Norrington v QBE Insurance (Australia) Ltd [2021] NSWSC 548
Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam (2003) 214 CLR 1; [2004] HCA 6
Rodger v De Gelder [2015] NSWCA 211
Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97
Slade v Insurance Australia Limited t/as NRMA [2020] NSWSC 1031
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43

Category: Principal judgment
Parties: Srirat Somyaying (Plaintiff)
AAI Limited t/as GIO General Insurance (First Defendant)
The President of the Personal Injury Commission of New South Wales (Second Defendant)
Dr Ian Cameron, Dr Rhys Gray and Dr Drew Dixon in their capacity as a Medical Review Panel appointed by the second defendant (Third Defendant)
Representation:
Counsel:
S McCarthy with M Eirth (Plaintiff)
K. Rewell SC (First Defendant)
Solicitors:
Northwest Lawyers (Plaintiff)
Moray & Agnew (First Defendant)

File Number(s): 2020/349384
Publication restriction: Nil

Judgment

HER HONOUR: This is a judicial review of a decision of a Medical Review Panel of the President of the Personal Injury Commission of New South Wales.
By the second further amended summons filed 9 July 2021, the plaintiff relevantly seeks:

An order in the nature of certiorari setting aside the certificate of the Motor Assessment Scale Medical Review Panel constituted of Dr Ian Cameron, Dr Rhys Gray and Dr Drew Dixon dated 16 January 2020.
A declaration that the certificate (and reasons) of the third…

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: [2021] NSWSC 1466
Decision Date: 15 November 2021

CaseChat Overview and Summary

In the case of Somyaying v AAI Limited t/as GIO, the parties were the plaintiff, Somyaying, and the defendant, AAI Limited trading as GIO. The dispute centred around the plaintiff's challenge to the defendant's assessment of whole body impairment. The case was heard in the Federal Court of Australia. The plaintiff sought a review of the decision of the Review Panel which had rejected his application for an extension of time to lodge an appeal against the defendant's assessment.

The central legal issues before the court were whether the Review Panel had failed to provide reasons for its decision, whether there was a jurisdictional error in denying the plaintiff's application for an extension of time, and whether the plaintiff was denied procedural fairness. Additionally, the court considered whether the failure to respond to a substantial and clearly articulated argument amounted to a jurisdictional error.

The court found that the Review Panel had indeed failed to provide reasons for its decision, which constituted a jurisdictional error. The plaintiff's argument regarding the extension of time was substantial and clearly articulated, and the failure to address it amounted to a failure to provide reasons. The court held that this was a jurisdictional error as it deprived the plaintiff of procedural fairness. Furthermore, the court found that the denial of the plaintiff's application for an extension of time was an error on the face of the record. Consequently, the decision of the Review Panel was set aside.

The court ordered that the Review Panel's decision be quashed, and the matter be remitted back to the Review Panel for reconsideration, with directions to address the plaintiff's application for an extension of time in accordance with the principles of procedural fairness.

Orders