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[2026] NSWSC 1087
Supreme Court of NSW
2026-09-11
Adamson JA
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: AAI Limited trading as AAMI v Agyei [2026] NSWSC 1087
Hearing dates: On the papers
Decision date: 11 September 2026
Jurisdiction: Common Law
Before: Adamson JA
Decision: (1) Extend the time for the filing of the summons to 19 December 2025.
(2) Grant leave to the plaintiff to file an amended summons in the form provided in the White Folder.
(3) Direct the plaintiff to file the amended summons on or before 18 September 2026.
(4) Set aside the certificate issued by the third defendant on 8 October 2023 which certified that the psychiatric injury sustained by the first defendant was a threshold injury.
(5) Set aside the fourth defendant’s decision made on 11 April 2024 to refer to the second defendant the first defendant’s application for review of the third defendant’s medical assessment that the psychiatric injury she sustained was a threshold injury.
(6) Set aside the certificate issued by the second defendant on 30 May 2025 which certified that the psychiatric injury sustained by the first defendant was not a threshold injury.
(7) Make no order as to costs.
Catchwords: ADMINSTRATIVE LAW — jurisdictional error — error on the face of the record — where third defendant made a decision about an issue already determined — where original decision was not referred in accordance with the statutory regime in Motor Accident Injuries Act 2017 (NSW) — where as a result subsequent decisions lacked jurisdiction — whether relief ought be refused on discretionary grounds — acquiescence
ADMINISTRATIVE LAW — extension of time to commence proceedings — Uniform Civil Procedure Rules 2005 (NSW), r 59.10
Legislation Cited: Motor Accident Injuries Act 2017 (NSW), ss 1.6, 3.11, 3.24, 3.28, 4.4, 7.17, 7.20, 7.23, 7.24, 7.26, Div 5, Sch 2 cl 2,
Motor Accident Injuries Amendment Act 2022 (NSW), Sch 1
Motor Accident Injuries Regulation 2017 (NSW), cll 4, 13
Personal Injury Commission Act 2020 (NSW), s 33
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), r 59.10
Cases Cited: Insurance Australia Ltd trading as NRMA Insurance as agent for the Nominal Defendant v Toole [2025] NSWSC 777
Insurance Australia Ltd trading as NRMA Insurance v Cahill [2025] NSWSC 828
Katter v Melhem (2015) 90 NSWLR 164; [2015] NSWCA 213
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12
Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71
Pham v NRMA Insurance Ltd [2014] NSWCA 22; (2014) 66 MVR 152
Plaintiff M61/2010E v The Commonwealth of Australia (2010) 243 CLR 319; [2010] HCA 41
Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470
Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97
Tomlinson v Ramsey Food Processing Pty Ltd (2016) 256 CLR 507; [2015] HCA 28
Category: Principal judgment
Parties: AAI Limited trading as AAMI (Plaintiff)
Adelina Agyei (First Defendant)
Review Panel Constituted under s 7.26 of the Motor Accident Injuries Act 2017 (Second Defendant)
Medical Assessor appointed by the President of the Personal Injury Commission under s 33 of the Personal Injury Commission Act 2020 (Third Defendant)
President of the Personal Injury Commission of New South Wales (Fourth Defendant)
Attorney General of New South Wales (Amicus Curiae)
Representation: Counsel:
J Gumbert (Plaintiff)
Submitting appearance (First Defendant)
Submitting appearance (Second Defendant)
Submitting appearance (Third Defendant)
Submitting appearance (Fourth Defendant)
A Sapienza (Amicus Curiae)
Solicitors:
Sparke Helmore Lawyers (Plaintiff)
Sharah Henville Lawyers (First Defendant)
Crown Solicitor’s Office (Second Defendant)
Crown Solicitor’s Office (Third Defendant)
Crown Solicitor’s Office (Fourth Defendant)
Crown Solicitor’s Office (Amicus Curiae)
File Number(s): 2025/493670
[This headnote is not to be read as part of the judgment]
The first defendant (the claimant) was injured in a motor accident in 2021 due to the negligence of the driver for which the plaintiff (the insurer) is the compulsory third party insurer. The insurer sought orders to set aside three decisions purportedly made under the Motor Accident Injuries Act 2017 (NSW) (the Act) in relation to injuries she sustained from the motor accident. The claimant alleges that each of the three decisions was invalid.
The purported decisions related to an alleged “medical dispute” between the claimant and the insurer about whether the first defendant’s psychiatric injury sustained in the motor accident was a “threshold injury”. However, this dispute had been determined in 2022 by Medical Assessor Sidorov, who certified that it was. No review of this assessment was sought. In 2023, the President of the Personal Injury Commission (the President), the fourth defendant, referred a treatment dispute (relating to proposed psychiatric treatment) to Medical Assessor Fukui, the third defendant. However, Medical Assessor Fukui, in addition to determining the treatment dispute, which had been referred, also purported to certify that the psychiatric injury was a threshold injury, which had not been referred. The claimant sought review of Medical Assessor Fukui’s assessment that her psychiatric injury was a threshold injury. The President referred the application to the Review Panel, the second defendant, which determined that the claimant’s psychiatric injury was not a threshold injury. Each of the defendants filed submitting appearances. The Attorney General of NSW made submissions as amicus curiae.
Adamson JA held:
(1) The certificate issued by Medical Assessor Fukui on 8 October 2023 which certified that the psychiatric injury sustained by the first defendant was a threshold injury was unauthorised by the Act and in excess of jurisdiction as the matter fell outside the terms of the parties’ dispute and the referral. There was no jurisdiction to proceed to assessment when none of the statutory preconditions of s 7.24 of the Act had been met. The certificate ought be set aside: [35]-[41].
Insurance Australia Ltd trading as NRMA Insurance as agent for the Nominal Defendant v Toole [2025] NSWSC 777 applied.
(2) The President’s referral of the review of this matter to the Review Panel was made in excess of its jurisdiction and ought be set aside: [44]-[45].
(3) The decision of the Review Panel must also be set aside as none of the statutory preconditions was met: [46].
(4) An extension of time ought be granted and the discretion to grant relief ought be exercised. The errors were material and the insurer did not acquiesce in the decisions. Further, it would be unsatisfactory for there to be two extant, inconsistent decisions (one lawful and the other unlawful) about the same matter: [47]-[54].
(5) No order for remittal ought be made as Medical Assessor Sidorov’s decision remains extant and has not been challenged: [55].
By summons filed on 19 December 2025, the plaintiff, AAI Limited trading as AAMI (the insurer), sought orders setting aside decisions (the detail of which is outlined below) in respect of claims made by the first defendant, Adelina Agyei (the claimant), under the Motor Accident Injuries Act 2017 (NSW) (the Act) for injuries she sustained in a motor accident on 14 February 2021.
Submitting appearances have been filed by all defendants: the claimant; the second defendant (the Review Panel); the third defendant, a medical assessor; and the fourth defendant (President of the Personal Injury Commission of New South Wales (the President)). The Attorney General of New South Wales was granted leave to participate in these proceedings as amicus curiae in order to provide the Court with a contradictor.
The insurer sought leave to file an amended summons to add a further claim for relief. For the reasons set out below, the relief sought in this further claim is necessary to remedy the illegality of purported decisions. The amendment ought be allowed.
In the amended summons, the insurer asks the Court to set aside the following decisions:
the certificate issued by Medical Assessor Fukui dated 8 October 2023 certifying that the claimant’s psychiatric injury was a threshold injury;
the decision of the President’s delegate (the Delegate) made on 11 April 2024 to refer the claimant’s application for review of Medical Assessor Fukui’s assessment that her psychiatric injury was a threshold injury to the Review Panel; and
the certificate issued by the Review Panel on 30 May 2025 revoking the certificate issued by Medical Assessor Fukui (in so far as it related to the threshold injury dispute) and certifying that the claimant’s psychiatric injury was not a threshold injury.
Proceedings for judicial review of a decision are required to be commenced within 3 months of the date of the decision unless time is extended. As the summons was not filed until 19 December 2025, the insurer requires an extension of time under r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) in respect of each of the three decisions.
My reasons for extending time for the filing of the summons and granting the relief claimed largely reflect an acceptance of the insurer’s helpful and comprehensive submissions which were prepared by Ms Gumbert of counsel.
The written submissions filed on behalf of the Attorney General on 4 September 2026 confirmed that the orders sought on behalf of the insurer could be made, if an extension of time were granted and the discretion to make them was exercised. The Attorney General’s submissions, which Ms Sapienza of counsel prepared, focussed on whether an extension of time ought be granted and whether the relief ought be granted as a discretionary matter.
The quality and comprehensiveness of the written submission of the insurer and the Attorney General have enabled me to determine this matter on the papers without the need for an oral hearing.
All references to legislation in these reasons are, unless indicated otherwise, references to the Act.
A “medical dispute” is, relevantly, “a dispute between a claimant and an insurer about a medical assessment matter”: s 7.17(a).
Section 1.6 relevantly provides:
1.6 Meaning of “threshold injury”
(1) For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following—
(a) a soft tissue injury,
(b) a psychological or psychiatric injury that is not a recognised psychiatric illness.
…
(4) The regulations may—
(a) exclude a specified injury from being a threshold injury for the purposes of this Act, or
(b) include a specified injury as a threshold injury for the purposes of this Act.
…
The term “threshold injury” was inserted into the Act in April 2023 (by the Motor Accident Injuries Amendment Act 2022 (NSW), Sch 1, [1]-[9]) and replaced the former term “minor injury”, without substantive change.
The Motor Accident Injuries Regulation 2017 (NSW) (the Regulation) relevantly provides, by cl 4(2):
4 Meaning of “threshold injury”, section 1.6(4) of the Act
…
(2) Each of the following injuries is included as a threshold injury for the purposes of the Act—
(a) acute stress disorder,
(b) adjustment disorder.
…
The effect of an injury being a threshold injury is that a claimant’s entitlement to statutory benefits ceases after 52 weeks if the claimant’s only injuries arising from the motor accident are threshold injuries: ss 3.11 and 3.28 of the Act. A claimant who has suffered only threshold injuries is not entitled to damages: s 4.4 of the Act.
Section 3.24 relevantly provides that an injured person is entitled to treatment and care expenses, including “the reasonable cost of treatment and care”: s 3.24(1)(a).
Section 7.20 outlines procedures for medical assessment. Either party to a medical dispute about a claim may refer the dispute to the President for assessment under Division 7.5 of the Act: s 7.20(1). The President is to arrange for the dispute to be dealt with by one or more medical assessors: s 7.20(2). The claimant and the insurer must provide to the medical assessor such information as the assessor may reasonably require for the purposes of the medical assessment: s 7.20(4).
Section 7.23 provides that a medical assessor is to conduct an assessment in accordance with the State Insurance Regulatory Authority’s Motor Accident Guidelines and issue a certificate (s 7.23(1)). The certificate is conclusive evidence as to any matter certified: s 7.23(2)(b). Section 7.23(7) provides:
A certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence.
7.24 Further medical assessment after initial medical assessment
(1) A medical dispute referred for assessment under this Division may be referred again for assessment under this Division at any time by a court, a merit reviewer or the Commission.
(2) A medical dispute referred for assessment under this Division may be referred again for assessment under this Division by the claimant or the insurer, but only on the grounds prescribed by the regulations (if any) in relation to the medical assessment matter to which the dispute relates.
(3) A medical dispute may not be referred again for assessment by the claimant or the insurer on more than one occasion.
(4) Referral of a medical dispute under this section by a claimant or an insurer is to be by application to the President.
(5) The President is to arrange for the medical dispute to which the application relates to be referred to one or more medical assessors for a further medical assessment, but only if the President is satisfied that the application meets the requirements for referral under subsection (2).
…
13 Grounds for further medical assessment (section 7.24 (2))
(1) A medical dispute may be referred again for assessment under Division 7.5 of the Act on the grounds of deterioration of the injury or additional relevant information about the injury.
(2) A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment.
Review of medical assessment by review panel
…
(6) The review of a medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.
…
(7) The review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned.
…
As referred to above, the claimant was injured in a motor accident on 14 February 2021. A “medical dispute” (as defined by s 7.17 of the Act) arose between the claimant and the insurer as to a “medical assessment matter”: namely, whether the injuries, both physical and psychiatric, caused by the motor accident were threshold injuries, as defined by s 1.6 of the Act (the threshold injury dispute).
The threshold injury dispute as to whether the physical injuries sustained by the claimant were threshold injuries was resolved by the issue of a certificate by Medical Assessor Rosenthal that all physical injuries were threshold injuries. These injuries need not be further considered.
The threshold injury dispute regarding the claimant’s psychiatric injury was referred by the Commission for assessment to Medical Assessor Sidorov who, on 18 March 2022, certified that the claimant’s psychiatric injury was “Adjustment Disorder with Mixed Anxiety and Depressed Mood” which was “a minor injury” (and therefore “a threshold injury”). The certificate was, as provided by s 7.23(2)(b), conclusive evidence of those matters. The claimant did not apply for review of Medical Assessor Sidorov’s assessment.
On 2 February 2022, the claimant applied for assessment of a treatment dispute relating to proposed psychiatric treatment with Dr Kuljic, psychiatrist. She asked the Commission to determine whether such treatment was “reasonable and necessary” in accordance with Sch 2, cl 2(b) (the treatment dispute).
On 17 July 2023, the President referred the treatment dispute to Medical Assessor Fukui, a psychiatric medical assessor. The President did not refer the question whether the claimant’s psychiatric injury was a threshold injury to Medical Assessor Fukui since this matter was no longer in dispute, having been resolved by Medical Assessor Sidorov certifying that this injury was a threshold injury.
On 8 October 2023, Medical Assessor Fukui issued three certificates, two of which related to the treatment dispute which is not presently relevant. Of significance, she certified that the claimant’s psychiatric injury (adjustment disorder with mixed anxiety and depressed mood) was a threshold injury, although this question had not been referred to her.
The insurer submitted that the certification that the claimant’s psychiatric injury was a threshold injury was invalid as being in excess of jurisdiction and not relating to a medical dispute since that dispute had already been determined by Medical Assessor Sidorov. Dr Fukui’s assessment corresponded with Medical Assessor Sidorov’s assessment and would have, had the matter not gone further, lacked material effect on that basis.
However, the matter did go further. The claimant applied for review of Medical Assessor Fukui’s assessment that her psychiatric injury was a threshold injury. On 11 April 2024, the Delegate determined that the claimant’s application for review ought be referred to the Review Panel, which the President constituted in accordance with s 7.26(5A).
On 30 May 2025, the Review Panel issued a certificate and decision revoking the certificate issued by Medical Assessor Fukui (insofar as it related to the threshold injury dispute) and certifying that the claimant’s psychiatric injury was not a threshold injury (the Review Panel decision). The Review Panel’s reasons revealed that its conclusion was based on its diagnosis that the claimant suffered from Post-Traumatic Stress Disorder, which is a non-threshold injury.
The Review Panel decision (that the psychiatric injury was not a threshold injury) was inconsistent with Medical Assessor Sidorov’s decision (that it was a threshold injury), in circumstances where no review had been sought of Medical Assessor Sidorov’s decision.
1 The threshold injury dispute had been determined by Assessor Sidorov, whose decision was conclusive evidence of that medical assessment matter by virtue of s 7.23(2)(b) of the MAI Act and the doctrines of res judicata and issue estoppel. There had been no application for further assessment in accordance with s 7.24 of the MAI Act and no consideration of whether the preconditions for a further assessment had been satisfied. By issuing a Certificate as to threshold injury, Assessor Fukui was purporting to determine a dispute that had not arisen between the parties and had not been referred for assessment. The Certificate of Assessor Fukui as to the threshold injury matter was made in circumstances where there was want of jurisdiction and in excess of her jurisdiction. The decision of Assessor Fukui is invalid and if necessary should be set aside.
2 For the reasons set out in ground 1, the purported referral by the President’s Delegate of the threshold injury medical assessment matter to a review panel was also legally erroneous and in excess of jurisdiction and should be set aside.
3 As a consequence of the errors set out above, the review panel decision was afflicted by jurisdictional error in that it was made in circumstances where there was want of jurisdiction and in excess of the jurisdiction of the review panel. Accordingly, the decision of the review panel is invalid and should be set aside.
As is evident from the amended summons, the insurer sought that the following decisions be set aside: that part of Medical Assessor Fukui’s decision that relates to the threshold injury dispute; the Delegate’s decision to refer the matter to the Review Panel; and the Review Panel decision.
The Court’s jurisdiction to make the orders sought by the insurer arises from its inherent jurisdiction and s 69 of the Supreme Court Act 1970 (NSW).
The effect of s 7.23(7) is that the Review Panel’s reasons form part of the record since they are part of the certificate and the certificate is the record: Pham v NRMA Insurance Ltd [2014] NSWCA 22; (2014) 66 MVR 152 at [27] (Leeming JA, Tobias AJA agreeing); Insurance Australia Ltd trading as NRMA Insurance v Cahill [2025] NSWSC 828 at [40]. In these circumstances, it is not necessary for the claimant to rely on the extended definition of “record” in s 69(4) of the Supreme Court Act.
The effect of s 7.23(2)(b) is that, once Medical Assessor Sidorov issued a certificate, the certificate became conclusive evidence that the psychiatric injury suffered by the claimant was a threshold injury. The express wording of s 7.24(2) and cl 13 of the Regulation imposed limitations on the referral of that matter for re-assessment by providing that the matter could be referred for further assessment if and only if:
there was a further medical dispute between the parties (as to the effect of deterioration of the injury or additional information about the injury);
one of the parties to the medical dispute applied for assessment of that dispute;
the President or Delegate, as the gatekeeper, had determined that the deterioration or additional relevant information was such as to be capable of having a material effect on the outcome of the previous assessment; and
the President or Delegate exercised the discretion to refer the matter for further assessment.
None of these four requirements was met before the referral to Medical Assessor Fukui which was confined to the (new) treatment dispute. Medical Assessor Fukui approached the assessment of whether the claimant’s psychiatric injury was a threshold injury on the mistaken basis that her assessment was an original assessment. The certificate issued by Medical Assessor Fukui was unauthorised by the Act and in excess of jurisdiction as there was no jurisdiction to proceed to assessment in respect of a matter which had not been referred and in circumstances where none of the statutory preconditions had been met.
As referred to above, there was no longer a “medical dispute” about whether the claimant’s psychiatric injury was a threshold injury since the matter had been determined conclusively by Medical Assessor Sidorov against whose decision no application for review had been made: see Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71 at [78] and [94] (Stern JA, Leeming and Kirk JJA agreeing).
The factual dispute between the parties was, at the time of referral, limited to the treatment dispute, which confined the ambit of the referral: Insurance Australia Ltd trading as NRMA Insurance as agent for the Nominal Defendant v Toole [2025] NSWSC 777 at [40]. As Medical Assessor Fukui exceeded the limits of her jurisdiction, the certificate ought be set aside.
It follows that ground 1 has been made out.
Ms Gumbert also called in aid the common law doctrines of issue estoppel and res judicata. These principles apply to the exercise of judicial power resulting in a judicial determination of a dispute: Tomlinson v Ramsey Food Processing Pty Ltd (2016) 256 CLR 507; [2015] HCA 28 at [20]. The present case concerns administrative power conferred by legislation which makes express provision for its exercise. The statutory wording referred to above is sufficient to make out ground 1 and to make it appropriate that the relief claimed in respect of the certificate issued by Medical Assessor Fukui be set aside. In these circumstances, it is not necessary to address how the common law doctrines of issue estoppel and res judicata might apply by analogy to a situation such as the present.
The certificate issued by Medical Assessor Fukui was unlawful for the reasons given above. There was therefore no lawful assessment which could be referred to the Review Panel for review. Further, before the President or Delegate may refer a matter to a Review Panel, the pre-conditions for such referral need to be satisfied. For the reasons given above, none of the pre-conditions for that referral was met.
In these circumstances and for the reasons given above, the referral by the Delegate of the threshold injury medical assessment matter to the Review Panel was made in excess of jurisdiction and ought be set aside. Ground 2 has been made out.
There are two competing public interests: first, the public interest in a decision affected by jurisdictional error being set aside (Katter v Melhem (2015) 90 NSWLR 164; [2015] NSWCA 213 at [51] (Campbell AJA at [124], in respect of a judgment)); and, second, the public interest in the finality of decisions, once applicable time limits for their challenge have expired (Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470 at [15] (McHugh J)).
In the present case, the public interest in setting aside decisions affected by error on the face of the record or jurisdictional error substantially outweighs the public interest in finality. The current proceedings were brought by the insurer to undo the consequences of errors which resulted in decisions being made which were not authorised by the Act. It is in the interests of justice that this Court set aside the two certificates and the referral decision.
Further, it would be highly unsatisfactory for there to be two extant, inconsistent decisions about the same matter when the latter (the Review Panel’s decision that the claimant’s psychiatric injury was not a threshold injury) was not a review of the former (Medical Assessor Sidorov’s decision that it was). If this Court were not to grant relief, any semblance of finality would be illusory. Uncertainty as to which certificate prevails (Medical Assessor Sidorov’s or the Review Panel’s) has the potential to give rise to a sense of grievance in both the claimant and the insurer.
For the reasons given above, each of the grounds has been made out. The further question arises whether the orders sought ought be made. I accept the insurer’s submission, which was accepted by the Attorney General, that the errors made by Medical Assessor Fukui, the Delegate and the Review Panel were material in the sense that it cannot be “affirmatively concluded that the outcome would inevitably have been the same had the error not been made”: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [16] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).
There has been an unfortunate non-compliance with the Act, which, as it was not detected in a timely way, resulted in further acts of non-compliance with the Act. It is desirable that these invalid acts be set aside since the process mandated by the legislature is to be respected and complied with.
The Attorney General submitted that there was a basis for considering that the insurer acquiesced in the invalidity of the Delegate’s decision to refer the dispute to the Review Panel and the Review Panel’s decision. The Attorney General submitted, that “acquiescence and waiver … [is] a reference to circumstances where conduct could properly give rise to an inference [based on the person’s full knowledge of their rights] that the person had abandoned his or her rights”: Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 at [90], read with [82] (Beazley JA, McColl JA agreeing). Acquiescence provides a reason not to exercise the discretion to grant relief. The Attorney General submitted:
… the invalidity of the referral and review panel decisions was entirely derivative, and the necessary consequence, of the invalidity of the medical assessment decision. Accordingly, to refuse the relief sought on the basis of acquiescence, the Court would need to be satisfied that the plaintiff acquiesced in the invalidity of the medical assessment decision. On one view, it cannot reasonably be said that the plaintiff acquiesced in the invalidity of the medical assessment decision, of which, unlike the referral and review decisions, it had no advance notice. On another view, had the plaintiff had adequate processes for managing different claims in respect of the same accident in place, it would have identified the error and brought it and Dr Sidorov’s assessment to the PIC’s attention, perhaps by its own application for review pursuant to s. 7.26(1), thereby obviating the need for the review and the consequent errors.
(Emphasis added.)
It was not until August 2025 that the insurer’s employees actually knew of the errors on which the insurer relied to obtain relief in this Court. While it may be accepted that had the insurer’s processes been better, it would, or could, have appreciated the error earlier, acquiescence does not extend, at least in this context, to constructive notice.
I do not accept that there was any relevant acquiescence by the insurer. While it would have been preferable for the error to be detected earlier (by the claimant, the insurer or the President), it is to the insurer’s credit that, as soon as it became aware of the errors, it investigated the matter and, on 5 December 2025, sought advice from Ms Gumbert who provided prompt advice. This led to the insurer taking the only avenue available to it to rectify the errors by commencing these proceedings on 19 December 2025.
I accept the Attorney General’s submission that there is no need for the matter to be remitted to the President for redetermination of the matter since the matter – whether the claimant’s psychiatric injury was a threshold injury – has already been determined according to law by Medical Assessor Sidorov. The only effect of the orders is that decisions which were unauthorised by legislation and, on that ground, unlawful, will be set aside. I also accept the Attorney General’s submission that the dicta that there may be no utility in granting an order in the nature of certiorari in circumstances where there is no need for an order in the nature of mandamus (Plaintiff M61/2010E v The Commonwealth of Australia (2010) 243 CLR 319; [2010] HCA 41 at [100]) do not apply in the present case.
For the reasons given above, I make the following orders:
Extend the time for the filing of the summons to 19 December 2025.
Grant leave to the plaintiff to file an amended summons in the form provided in the White Folder.
Direct the plaintiff to file the amended summons on or before 18 September 2026.
Set aside the certificate issued by the third defendant on 8 October 2023 which certified that the psychiatric injury sustained by the first defendant was a threshold injury.
Set aside the fourth defendant’s decision made on 11 April 2024 to refer to the second defendant the first defendant’s application for review of the third defendant’s medical assessment that the psychiatric injury she sustained was a threshold injury.
Set aside the certificate issued by the second defendant on 30 May 2025 which certified that the psychiatric injury sustained by the first defendant was not a threshold injury.
Make no order as to costs.
**********
AAI Limited trading as AAMI
Agyei
(2015) 90 NSWLR 164
(2024) 280 CLR 321
(2014) 66 MVR 152
(2010) 243 CLR 319
(2000) 75 ALJR 470
(2011) 80 NSWLR 594
(2016) 256 CLR 507