1. The claimant's application to review the medical assessment is dismissed pursuant to s 54 of the Personal Injury Commission Act 2020.

1. Ms Senija Alibabic (the claimant) suffered physical injuries caused by a motor accident on

1. The issues in dispute are the degree of permanent impairment under s 58(1)(d) of the Motor Accidents Compensation Act 1999 (MAC Act), whether various treatment provided or to be provided to the claimant was or is reasonable and necessary in the circumstances under

s 58(1)(a) of the MAC Act, and whether any such treatment relates to the injury caused by the motor accident under s 58 (1)(b) of the MAC Act. 2. Section 57 of the MAC Act defines a "medical dispute" as a disagreement or issue to which Part 3.4 of the MAC Act applies. 3. Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters is referred to as "medical assessment matters". Medical assessment matters include "whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances" and "whether any such treatment relates to the injury caused by the motor accident". 4. Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors. The medical assessment may then be referred to a Review Panel (s 63). The review is by way of a new assessment of all the matters with which the medical assessment is concerned.

1. The medical assessment matters were referred to Medical Assessor Cameron who issued a Medical Assessment Certificate dated 23 February 2024 (the medical assessment certificate).
2. The Medical Assessor found that the motor accident caused soft tissue injuries to various body parts and assessed permanent impairment at 2% (left shoulder). The Medical Assessor found that none of the treatment was reasonable and necessary and not caused by the accident.

1. An application for referral of the medical assessment to a review panel was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.
2. The President's delegate then referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[1]
3. The Review Panel issued a direction dated 21 October 2024 requesting the claimant to file a bundle of documents by 2 December 2024 and the insurer by 13 January 2025. The insurer filed a bundle on or about 13 January 2025.
4. There is no bundle of documents in the portal filed by the claimant in response to this direction.
5. The Review Panel convened on 22 January 2025 and then directed the claimant to attend a medical examination before Medical Assessor Gibson on 4 April 2025.
6. The following history of events is taken from the letters of Barry Nilsson dated 26 June 2025 and Sparke Helmore dated 3 October 2025.
7. The claimant did not attend the medical examination on 4 April 2025.
8. The claimant failed to provide a reason for the non-attendance in response to requests from the dispute officer on 4 April 2025, 15 April 2025, 2 May 2025 and 24 June 2025.
9. The claimant has failed to file its bundle of documents in response to the initial Panel direction.
10. I reject the insurer's assertion that there were non-attendances by the claimant on medical examinations organised on 15 April 2025 and 2 May 2025. There is no record of further examinations organised on those dates. What occurred is that the claimant was requested on those subsequent days to provide an explanation for her non-attendance on 4 April 2025. The claimant failed to respond to the subsequent directions to provide a response for her non-attendance.
11. On 26 June 2025 the insurer, through its solicitors, requested the review proceedings be dismissed for the applicant's failure to comply with directions and failure to prosecute the proceedings with due dispatch.
12. There was no action taken in response to the insurer's request.
13. On 3 October 2025 the insurer, through different solicitors, again requested that the review proceedings be dismissed.
14. The matter was then referred to me and the following direction was issued on 10 October 2025:

"The issue of dismissal for want of prosecution of the claimant's review of the medical assessment of Medical Assessor Cameron dated 23 February 2024 has been referred to me.

I have considered the submissions sent by the insurer dated 26 June 2025 (Barry Nilsson) and 3 October 2025 (Sparke Helmore).

The claimant is to file any submissions in response including any supporting statement by the claimant by close of business, 16 October 2025.

The parties will be advised if there is a need for further submissions. In the absence of a response by the claimant, the parties are advised that the dismissal application will be immediately determined on the papers."

1. The claimant did not respond to this direction.

1. Section 54 of the Personal Injury Commission Act 2020 (the PIC Act) applies to panel review proceedings[2] and relevantly provides that that the proceedings may be dismissed if:

"(a) if it is satisfied that the proceedings have been abandoned, or

(b) if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or

(c) for any other ground of dismissal specified in the Commission rules."

1. Rule 77(b)(ii) and (iii) of the Personal Injury Commission Rules (the PIC Rules) provides that s 54(c) of the PIC Act applies to motor accidents legislation when:

"(ii) the applicant has failed, without reasonable excuse, to comply with a direction given by the Commission or the President, or

(iii) the applicant has failed to prosecute the proceedings with due dispatch".

1. Rule 127(3) of the PIC Rules provides that the function of the Commission under s 54 of the PIC Act is given to the President.
2. Table B of the delegated functions provides that the function under Rule 127(3) is delegated to various persons including a Principal Member.
3. I am conscious that a "strike out" (dismissal) application is exercised sparingly and in circumstances where the applicant's case is taken at its highest: General Steel Industries Inc v Commissioner for Railways (NSW).[3] General Steel was applied in Perera v Genworth Financial Mortgage Insurance Pty Ltd[4] when Leeming JA stated:[5]

"But for present purposes, two matters are clear. One is that common to all the various formulations is the need for 'exceptional caution', as was explained in Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57] and Spencer at [53]-[55]. The other is that the inquiry is as to the demonstrated certainty of the outcome of the litigation, as opposed to its prospects of success."

1. Those comments were in part directed to dismissal where the claim lacked substance. However, I accept that similar caution should be applied in dismissing an application for failing to prosecute.
2. The claimant has failed, without any explanation, to attend a medical examination on 4 April 2025, Since that time the claimant has not responded to directions concerning the prosecution of the review application and, in particular, the reason for non-attendance. The claimant was given a further opportunity by me last week.
3. The claimant has not responded to the recent direction when she was on notice that the review may be dismissed.
4. I am satisfied that the application for review of the medical assessment should not proceed and is dismissed given the claimant's lack of compliance and refusal to attend a medical examination. There has been significant non-compliance with directions from the Panel through the failure to provide a bundle, failure to attend the medical examination and failure to provide a response explaining the non-attendance.
5. The medical assessment on review cannot proceed if the claimant does not attend a further medical examination organised by the Panel as this is a new assessment on all issues.
6. I am satisfied that applicant has breached Rule 77(b)(ii) and (iii) of the PIC Rules by failing, without reasonable excuse, to comply with separate directions (attend the medical examination and provide a bundle of documents) and has failed to prosecute the proceedings with due dispatch by failing to respond to the Commission queries
7. The claimant was on notice that the proceedings may be dismissed due to the failure to prosecute the proceedings with due dispatch. The claimant was also given a further opportunity to place evidence before me as to the prosecution of the review. Given the history of the claimant's failure to prosecute the review and the failure to respond to the recent direction, I conclude that the claimant does not intend to prosecute the review.
8. For these reasons the application for review is dismissed.

[1] Section 7.26(5) of the MAI Act; determination dated 16 February 2023.

[2] See Rule 127 (1)(d) of the PIC Rules.

[3] [1964] HCA 69; (1964) 112 CLR 125 (General Steel) at [129].

[4] [2017] NSWCA 19.

[5] (at [30], Macfarlan and Simpson JJA agreeing).