//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] NSWSC 939
Supreme Court of NSW
2026-08-06
Muston J
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: Jazairy v AAI Limited t/as GIO Insurance [2026] NSWSC 939
Hearing dates: 29 July 2026
Date of orders: 6 August 2026
Decision date: 06 August 2026
Jurisdiction: Common Law
Before: Muston J
Decision: (1) The amended summons is dismissed.
(2) The plaintiff is to pay the first defendant’s costs of the proceedings.
ADMINISTRATIVE LAW — judicial review — judicial review of the decision of a review panel constituted under Motor Accidents Compensation Act 1999 (NSW) — where WPI threshold for availability of award of damages for non-economic loss is 10% — where the original assessor assessed 19% WPI but review panel assessed 7% WPI — whether review panel had to grant leave for the introduction of additional documents — whether failure to allow plaintiff to make a written response concerning the additional documents amounted to a denial of procedural fairness — whether assessor’s conduct and questions amounted to procedural unfairness or gave rise to an apprehension of bias
Legislation Cited: Motor Accident Injuries Act 2017 (NSW) ss 1.6, 4.1, 4.3, 4.4, 4.11, 4.12, 7.1, 7.17, 7.21, 7.23, 7.26
Personal Injury Commission Act 2020 (NSW) s 33
Personal Injury Commission Rules 2021 rr 5, 8, 67, 67C, 128
Cases Cited: AAI Limited trading as GIO v Amos [2024] NSWCA 65
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39
LPDT v Minister for Immigration (2024) 280 CLR 321; [2024] HCA 12
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Services (2023) 279 CLR 148; [2023] HCA 15
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28
Category: Principal judgment
Parties: Jazmine Jazairy (Plaintiff)
AAI Limited t/as GIO Insurance (First defendant)
President of the Personal Injury Commission of
New South Wales (Second defendant)
Review Panel constituted under s 7.26 of the Motor
Accident Injuries Act 2017 (Third defendant)
Representation: Counsel:
A Canceri (Plaintiff)
C Allan (First Defendant)
M Albinowksi (solicitor) (Second and Third Defendants)
Solicitors:
El Baba Lawyers (Plaintiff)
Moray & Agnew (First Defendant)
Crown Solicitor for NSW (Second and Third Defendants)
File Number(s): 2025/00445510
By an amended summons filed 10 February 2026, the plaintiff seeks judicial review of a decision made on 18 August 2025 by a review panel constituted under s 7.26 of the Motor Accident Injuries Act 2017 (NSW) (MAI Act). The individuals who constituted the review panel were Member Elizabeth Medland, Medical Assessor Matthew Jones, and Medical Assessor Ronald Gill.
The circumstances giving rise to the proceedings were largely uncontroversial and can be described briefly.
On 12 December 2018, the plaintiff’s mother was tragically killed in a motor accident. She was standing on a footpath when a truck mounted the pavement and collided with her; causing severe injuries and killing her instantly. The first defendant was the compulsory third party insurer of the truck.
The plaintiff was not present at the accident. However, she was significantly traumatised by the news that her mother had been killed and by information she later received about the injuries her mother suffered in the accident. The plaintiff now suffers from post-traumatic stress disorder (PTSD).
It was not in dispute that the accident was caused by the driver of the truck. The first defendant admitted liability in connection with the accident and that the plaintiff’s PTSD was relevantly caused by the accident. The first defendant accepted that, to the extent permitted by the MAI Act, the plaintiff is entitled to recover damages in connection with that injury.
Sections 4.1 and 4.3 of the MAI Act combine to provide that the only damages that may be awarded for injuries caused by the fault of the owner or driver of a motor vehicle in the use or operation of that vehicle are:
(a) damages for economic loss as permitted by Division 4.2, and
(b) damages for non-economic loss as permitted by Division 4.3.
Section 4.4 of the MAI Act goes on to preclude the recovery of damages for “threshold injuries”. The first defendant has accepted that the plaintiff’s PTSD is a “recognised psychiatric illness” for the purposes of s 1.6(1)(b) of the MAI Act and, as such, is not a “threshold injury”.
At the heart of this matter lies a dispute as to the plaintiff’s entitlement to recover non-economic loss in connection with the PTSD from which she now suffers.
Section 4.11, which is found in Div 4.3 of the MAI Act, provides that:
No damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by a motor accident is greater than 10%.
In making her claim, the plaintiff relied on an assessment made by her treating psychiatrist, Dr Richa Rastogi, of the permanent impairment — hereafter described as “whole person impairment” (WPI) — attributable to her PTSD. Dr Rastogi had assessed the plaintiff’s WPI to be “17% with no adjustment for pre-existing impairment and no adjustment for the effects of treatment.”
The views of Dr Rastogi were to be contrasted with those expressed by Dr Thomas Newlyn, a consultant family and child psychiatrist, following an independent medical examination of the plaintiff conducted on 30 May 2023. Dr Newlyn assessed the plaintiff’s WPI to be “7% with no deduction for pre-existing impairment and no adjustment for the effects of treatment.” I infer that the independent examination of the plaintiff by Dr Newlyn had been requested by the first defendant; although little turns on this.
The difference between the conflicting assessments made of the plaintiff’s WPI was significant in the context of her WPI having to exceed 10% in order to receive any award of damages for non-economic loss.
Section 4.12(1) of the MAI Act deals with the assessment of WPI in circumstances such as those raised by the conflicting conclusions reached by Dr Rastogi and Dr Newlyn respectively. It provides:
If there is a dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss, damages may not be awarded unless the degree of permanent impairment has been assessed by a medical assessor under Division 7.5.
(a) a dispute between a claimant and an insurer about a medical assessment matter…
(a) the degree of permanent impairment of the injured person that has resulted from the injury caused by the motor accident (including whether the degree of permanent impairment is greater than a particular percentage)
The conflicting opinions as to the WPI resulting from the plaintiff’s PTSD was a “medical assessment matter”.
The President of the Personal Injury Commission of New South Wales (PIC) can appoint medical assessors to assess medical disputes: s 33 of the Personal Injury Commission Act 2020 (NSW) (PIC Act). Medical assessors are required to conduct a medical assessment in accordance with the State Insurance Regulatory Authority’s Motor Accident Guidelines: s 7.21(1) of the MAI Act. They must issue a certificate on the matters referred for assessment with reasons explaining their findings: ss 7.23(1), (7) of the MAI Act.
Medical Assessor Glen Smith was appointed to assess the dispute which had emerged between the plaintiff and the first defendant about the WPI attributable to her PTSD. He assessed the plaintiff on 21 October 2024.
On 28 October 2024, Assessor Smith issued a certificate which recorded his assessment that the plaintiff’s PTSD — and a persistent depressive disorder with intermittent major depressive episodes that he found to have been caused by the accident — had resulted in a WPI of 19%.
On 25 November 2024, the first defendant applied to the PIC for a review of the assessment by Assessor Smith of the plaintiff’s WPI.
Section 7.26 of the MAI Act addresses the review of medical assessments. That section relevantly provides that:
(1) A claimant or an insurer may apply to the President to refer a medical assessment under this Division by a single medical assessor to a review panel for review.
(2) An application for the referral of a medical assessment to a review panel may be made only on the grounds that the assessment was incorrect in a material respect.
…
(5) The President is to arrange for the medical assessment to be referred to a review panel, but only if the President is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.
(5A) The panel is to be constituted by 3 persons chosen by the President as follows—
(a) 2 medical assessors,
(b) 1 member of the Commission who is a member assigned to the Motor Accidents Division of the Commission.
(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.
On 13 February 2025, a delegate of the President of the PIC concluded that there was reasonable cause to suspect that the medical assessment conducted by Assessor Smith was incorrect in a material respect. The assessment of the plaintiff’s WPI by Assessor Smith was referred by that delegate to the review panel. It was not suggested by the plaintiff that this decision was affected by jurisdictional error.
On 6 June 2025, the review panel met via videoconference and determined that a re-examination of the plaintiff was required. That re-examination took place via videoconference on 31 July 2025 and was attended by Assessor Gill, Assessor Jones, and the plaintiff.
On 18 August 2025, the review panel issued a certificate under s 7.23(1) of the MAI Act in which it:
revoked the certificate issued by Assessor Smith on 28 October 2024; and
certified that the plaintiff’s PTSD and a persistent depressive disorder caused by the accident had resulted in a WPI of 7%.
It is this decision of the review panel which is said by the plaintiff to have been affected by jurisdictional error. In support of this contention, she relied on the following four grounds:
First, that the review panel failed to decide whether the first defendant should be granted leave to introduce additional documents in the review panel proceedings (in circumstances where the additional documents had been produced) and, thereby, failed to exercise its jurisdiction.
Secondly, that the review panel did not allow the plaintiff to provide a written response to the first defendant’s submissions regarding the additional documents, and that this amounted to a denial of procedural fairness.
Thirdly, that the conduct of Assessor Jones during the re-assessment was such that he “adopted the role of advocate” for the first defendant, to the extent that it denied the plaintiff procedural fairness.
Fourthly, that certain statements made by Assessor Jones — and, generally, his conduct throughout the re-assessment— gave rise to an apprehension of bias.
A fifth ground — Ground 2 — was not pressed by the plaintiff.
To properly understand the complaint made by the plaintiff through Ground 1, it is necessary to consider certain aspects of the procedural history which produced the certificates issued by Assessor Smith and the review panel respectively.
For the purposes of his assessment of the plaintiff, Assessor Smith was provided with an academic transcript issued by Western Sydney University in relation to certain studies undertaken by the plaintiff in 2015 toward a Bachelor of Arts (Pathway to Primary Teaching). The results achieved by the plaintiff had been redacted in the version of the academic transcript made available to the first defendant and Assessor Smith.
An unredacted version of that academic transcript was requested by the solicitors for the first defendant but had not been provided when Assessor Smith issued his certificate.
The solicitors for the first defendant had also requested copies of any statements issued to the plaintiff by her bank since 1 January 2018. These too had not been provided by the plaintiff when Assessor Smith issued his certificate.
The first defendant’s application to the PIC for a review of Assessor Smith’s certificate relied, in part, on the fact that these documents had not been provided by the plaintiff.
The assessment by the review panel was governed by the Personal Injury Commission Rules 2021 (PIC Rules): PIC Rules r 5. PIC Rules r 128(1) provided that:
A panel for panel review proceedings is to conduct and determine the proceedings in accordance with procedures determined by the panel.
On 27 March 2025, the review panel relevantly directed that:
The first defendant was to “upload to the portal” an indexed and paginated bundle of all documents it relied upon in connection with the review by 2 May 2025.
The plaintiff was to “upload to the portal” an indexed and paginated bundle of all documents she relied upon in connection with the review (avoiding as far as possible any duplication of the documents uploaded by the first defendant) by 30 May 2025.
The directions given by the panel on 27 March 2025 went on to provide that:
“Other than set out above, the parties are not to upload any further material to the portal unless it is in the interests of justice and:
(a) reasonable notice is provided to the other party that this step is being taken and the nature of the further evidence, and
(b) explanation provided by that party that further material is being served during the deliberations by the Panel and why that material was not previously served.”
“The [first defendant] notes that the [plaintiff] remains yet to produce her unredacted academic transcript and bank statements for the period following 1 January 2018 which the [first defendant] maintains is relevant. The [first defendant] reserves the right to provide this additional evidence as the matter progresses.”
On 27 May 2025, the plaintiff uploaded to the portal her paginated bundle of documents; it contained neither the unredacted academic transcript nor the bank statements said by the first defendant to be relevant.
On 2 June 2025, the plaintiff uploaded to the portal an “Application to Lodge Additional Documents”, which included:
an unredacted version of the academic transcript;
statements issued by the plaintiff’s bank between 1 July 2022 and 30 December 2024; and
a letter dated 27 May 2025 written by the plaintiff’s solicitors to the solicitors for the first defendant, in which a range of contentions regarding those documents were advanced.
On 16 July 2025, the review panel advised the parties that a re-examination of the plaintiff was required; it provided details of when and how that was to occur. On the same day, the solicitors for the first defendant sent further submissions to the plaintiff’s solicitors. The further submissions were said to have been made “in reply to [the plaintiff’s] application to lodge additional documents” and, in substance, addressed the content of the unredacted academic transcript and bank statements.
The first defendant sought the plaintiff’s consent to upload the further submissions to the platform. That consent was not given.
On 16 July 2025, the first defendant uploaded to the platform an application to lodge additional documents. The application related to the further submissions — a copy of which was attached — and set out why the first defendant believed it was in the interests of justice for them to be included amongst the material considered by the review panel. In the application, the first defendant had checked the box to indicate that it was “seeking leave from an appropriate decision maker to introduce additional documents in accordance with r 67C(3)(a) or (b)” of the PIC Rules, and went on to assert that the application had been made in compliance with the requirements of those rules.
On 17 July 2025, a representative of the PIC posted a message in the portal, which confirmed that the first defendant’s application had “been referred to the [review panel] for decision”.
On 21 July 2025, the plaintiff’s solicitor posted a response to the portal in which she noted that the first defendant’s application to rely on the further submissions was “vigorously opposed”. On 22 July 2025, a representative of the PIC confirmed that the plaintiff’s response had also been shared with the review panel.
The reasons which accompanied the review panel’s 18 August 2025 certificate make clear that — in reaching the view expressed in that certificate — the review panel considered the additional documents provided by the plaintiff on 2 June 2025, and the further submissions uploaded by the first defendant on 16 July 2025. Those reasons make no reference to the review panel having granted leave to the first defendant to rely on the further submissions.
Through Ground 1, the plaintiff contended that by failing to turn its mind to the question of whether the first defendant should be granted leave to rely on the further submissions, the review panel “failed to exercise its jurisdiction”.
PIC Rules r 67C relevantly provided that:
(1) A party who wishes to introduce an additional document in applicable proceedings must—
(a) serve the document on each other party to the proceedings as soon as practicable after becoming aware of or obtaining possession or control of the document, and
(b) lodge the document in the approved form—
(i) for medical assessment proceedings—no later than 14 days before the medical assessment, or
(ii) for all other proceedings—no later than 3 working days before the conference or hearing, and
(c) lodge additional documents on one occasion only.
(2) An additional document is automatically introduced in medical assessment proceedings by a party if—
(a) the party obtains written consent to the introduction of the document from each other party to the proceedings, and
(b) the document is served and lodged in accordance with subrule (1), and
(c) the document complies with rule 67(1).
(3) An additional document may also be introduced in applicable proceedings by a party—
(a) if—
(i) the party applies to the appropriate decision-maker for leave to introduce the document, and
(ii) the document complies with rule 67(1) and is served and lodged in accordance with subrule (1), and
(iii) the appropriate decision-maker gives leave, or
(b) if the appropriate decision-maker otherwise gives leave on the application of the party.
(4) The appropriate decision-maker may give leave if satisfied the introduction of the document is necessary to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.
It was ultimately accepted by the plaintiff that the further submissions complied with PIC Rules r 67(1) and had been served and lodged in accordance with PIC Rules r 67C(1). The plaintiff contended that PIC Rules r 67C(3)(a)(iii) nevertheless required the review panel to have granted leave before the further submissions could be relied upon and that it had not explicitly done so.
At a threshold level, a question arises as to how PIC Rules r 67C was to operate in the context of the somewhat conflicting direction given by the review panel on 27 March 2025 (which is extracted above at [34]). That direction, made under the very wide power given to the review panel by PIC Rules r 128, was silent on the question of whether leave was required to rely on any material uploaded pursuant to its terms. On one view, that direction displaced PIC Rules r 67C in the context of the review being undertaken by the review panel. If it did not, a further question arises as to whether the review panel’s decision to have regard to the further submissions ought to be taken to reflect an implicit grant of leave to the first defendant to rely on that document.
Ultimately, there is a more direct answer to the complaint made by the plaintiff through Ground 1. Even if PIC Rules r 67C is to be treated as a condition which regulated the exercise by the review panel of its statutory power, a failure to have complied with its terms could only have invalidated the decision made by the review panel on 18 August 2025 if there can be discerned a legislative purpose to invalidate any act that failed to comply with that rule: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [91]-[93]. I discern no such intention in so far as PIC Rules r 67C is concerned. To the contrary, PIC Rules r 8 expressly provided:
(1) If these Rules are not complied with in relation to the commencement or conduct of Commission proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or a decision in the proceedings unless the Commission determines otherwise.
(2) The Commission may deal with an irregularity by wholly or partly setting aside—
(a) the proceedings, or
(b) a step taken in the proceedings, or
(c) a decision in the proceedings.
The plaintiff attempted to answer PIC Rules r 8 by pointing to the absence of any evidence of whether the PIC had dealt with the relevant irregularity under sub-rule (2). In circumstances where the plaintiff conceded that she had made no request that the PIC take action under sub-rule (2), I do not consider the failure by either party to have addressed in their evidence the possibility of the PIC having taken such action to have any bearing on Ground 1.
For the above reasons, Ground 1 is not made out.
By Ground 3, the plaintiff asserts that she was denied procedural fairness by the review panel.
I have described above the circumstances in which the further submissions came to be considered by the review panel. The response posted to the platform on 17 July 2025 by the plaintiff’s solicitor — through which the plaintiff opposed the first defendant’s application to rely on the further submissions — concluded by stating:
“In the event that the application is granted, we respectfully request adequate time to prepare a written response, given the extensive submissions made by the [first defendant]”.
As will be apparent from my description of the relevant events, the plaintiff was not given an opportunity to provide a written response to the further submissions. This underpinned her claim that she was denied procedural fairness by the review panel.
Although described by the plaintiff as “extensive”, the substantive portion of the further submissions was actually quite brief and limited in its scope. In effect, it was contended by the first defendant that:
The unredacted academic transcript revealed that the plaintiff had failed each of the units studied and, for this reason, did not support the plaintiff’s contention that, but for the accident, “she would have returned to complete a degree in primary school teaching and ultimately succeeded in that degree.” This largely repeated a submission already made in relation to the redacted version of the academic transcript which had been placed before Assessor Smith.
The plaintiff’s bank statements revealed:
(a) several government payments received by the plaintiff; (b) transactions involving the plaintiff and her ex-partner; (c) transactions showing that money had been spent in regional locations, which was said to have been evidence of travel by the plaintiff; and (d) transactions which were said by the first defendant to potentially relate to a business involving the purchasing, registering and reselling of motor vehicles.
The above transactions suggested a greater level of function — with respect to concentration, persistence, pace and adaption — than the plaintiff claimed to have had since the accident.
The bank statements “further supported that the [plaintiff] has not returned to employment due to her lifestyle choices, rather than any accident related impairment”. How the bank statements supported this conclusion was not otherwise explained by the first defendant.
Although she was not afforded an opportunity to respond in writing to the further submissions, those submissions were provided to the plaintiff’s solicitors. It was not suggested that she had not seen the further submissions prior to the re-examination by the review panel on 31 July 2025. The issues addressed in those submissions were expressly taken up with the plaintiff by Assessor Jones during the re-examination on 31 July 2025; the fact that he did so lies at the heart of the complaint the plaintiff makes through Grounds 4 and 5.
I will consider the tone and content of the questions asked by Assessor Jones during the re-examination on 31 July 2025 when addressing Grounds 4 and 5 below. For present purposes, it is sufficient to note that each of the matters raised by the first defendant in the further submissions was specifically raised with the plaintiff by Assessor Jones, and she responded to those contentions in the answers she gave to his questions.
The plaintiff was asked about the transactions said by the first defendant to have potentially related to the conduct of a business. She confirmed that she did not own or operate a business.
The plaintiff was asked whether she was working. She confirmed that she was unemployed. She confirmed that she was receiving a number of different government payments and that she had an entitlement to receive those payments.
When asked about particular transactions, she explained that many of the transactions recorded in her bank statements related to purchases made by various relatives whom she trusted and had allowed to use her bank card.
With regards to the unredacted academic transcript, the plaintiff was asked why she had failed the various subjects. She could not identify any particular reason but confirmed that she had attended her classes and completed her assignments. When asked why she had initially provided a redacted version of the academic transcript, she indicated that she had been embarrassed by her results and went on to assert that failing those subjects had not changed her aspirations in 2015. She explained that she went on to pursue other studies with the intention of seeking employment within the education sector on a long-term basis.
The reasons given by the review panel in support of its 18 August 2025 decision largely reflect an acceptance of the answers given by the plaintiff in response to questions asked of her in relation to these matters during the 31 July 2025 re-examination.
In AAI Limited trading as GIO v Amos [2024] NSWCA 65 at [54]-[58], Adamson JA (with whom Kirk JA and Basten AJA agreed) noted that:
“The High Court considered what procedural fairness requires in the context of a body such as the Review Panel in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (Wingfoot) and said, at [47]:
‘The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’
(Emphasis added and footnotes omitted.)
Having regard to Wingfoot, it can be seen that the legislative choice to have the assessment of %WPI performed by a medical assessor or a review panel (constituted by three members, two of whom are medical assessors) rather than in court proceedings, had significant ramifications for the nature and extent of procedural fairness which was required. In the context of a medical assessment conducted by a medical assessor or a review panel, procedural fairness requires that the critical issue or factor on which the decision will turn be brought to the parties’ attention in order that they can provide material and make submissions about it: Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [32] and [35] (Leeming JA, Beazley P and Basten JA agreeing), citing Kioa v West (1985) 159 CLR 550 at 587; [1985] HCA 81.
…
The requirements of procedural fairness in a context similar to the present were considered by this Court in Frost v Kourouche in which this Court allowed an appeal from an evidentiary ruling by a primary judge. The primary judge rejected a review panel’s certificate (that the %WPI was less than the threshold), finding that the review panel had denied the plaintiff (the respondent on the appeal) procedural fairness by not adjourning its review to permit her to obtain legal advice about the effect of social media posts submitted by the defendant (the appellant), which painted a very different picture of the plaintiff than appeared in the expert reports. Leeming JA (Beazley P and Basten JA agreeing) considered, at [41], that the test was whether the plaintiff had been accorded ‘practical justice’: see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37] (Gleeson CJ).
Leeming JA said, at [42]:
‘The materials before the court do not suggest any practical injustice or absence of a fair hearing. It was perfectly clear that NRMA was contending that Ms Kourouche’s claimed psychological conditions did not accord with what was recorded in her social media profile. It was perfectly clear that NRMA submitted that Ms Kourouche’s history was false. It was perfectly clear that NRMA submitted that the review panel should certify a psychological impairment of less than 10% such that s 131 would apply. And it was perfectly clear when the review panel determined to re-examine Ms Kourouche that the possibility that all or some of its members might disbelieve her history was real. This is not a case where the possibility of the panel’s adverse conclusion ought to have taken Ms Kourouche by surprise.’”
Applying those principles in the context of the present case, the plaintiff has not established that she was denied procedural fairness by the review panel. Although the plaintiff was not given what her counsel described as “the forensic opportunity of putting something in writing”, I am not satisfied that she was thereby denied any forensic advantage in the context of the assessment being undertaken by the review panel and am satisfied that she was accorded practical justice in the sense discussed in Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [41]; see also Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37].
To the extent that the matters raised in the further submissions had not already been addressed by the written submissions previously made to the review panel on the plaintiff’s behalf, she was given ample opportunity to respond to them through the answers she gave to the questions asked of her by Assessor Jones on 31 July 2025.
If, contrary to the view that I have reached, the inability to respond in writing to the further submissions had amounted to a denial of procedural fairness, I would nevertheless need to have been satisfied that it met the threshold of materiality: LPDT v Minister for Immigration (2024) 280 CLR 321; [2024] HCA 12 at [9]-[15].
The matters raised in the further submissions were canvassed with the plaintiff through questions asked during her re-examination by the review panel on 31 July 2025. Her evidence makes clear that she responded to those questions. The reasons given in support of its subsequent decision point to those answers having been accepted by the review panel. In these circumstances, I am not satisfied that the decision of the review panel could “realistically” — as that term is used in LPDT at [14] — have been different had the plaintiff been afforded an opportunity to respond in writing to the further submissions.
For the above reasons, Ground 3 is also not made out.
Grounds 4 and 5 are interrelated and were addressed collectively by both the plaintiff and the first defendant. I will take the same approach.
In support of Grounds 4 and 5, the plaintiff pointed to what she perceived to be the aggressive tone adopted by Assessor Jones during her re-examination by the review panel on 31 July 2025, and the fact that he is said to have asked “why are you still not over the death of your mum?” and suggested that she should instead be “celebrating her life”. The plaintiff said that this conduct gave rise to an apprehension of bias or, in some other way, rendered the review panel’s re-examination of the plaintiff unfair.
The parties both drew to my attention the well-recognised “double might” test for identifying apprehended bias articulated in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]. That test asks whether a fair-minded lay observer might reasonably apprehend that a decisionmaker might not bring an impartial mind to the resolution of the question they are required to decide. In its practical application, the test requires (1) identification of the factor which is said might lead a decisionmaker to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer: QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Services (2023) 279 CLR 148; [2023] HCA 15 at [38].
In seeking to apply that test in the context of the assessment being undertaken by the review panel, the inquisitorial nature of its task must not be ignored. As noted by the plurality in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [29]-[31]:
“Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the Tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented.
Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented – often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.
Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fairminded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decisionmaker's view.”
Acknowledging that much can turn on tone and volume, I am not satisfied that the plaintiff’s perception that Assessor Jones adopted “an aggressive tone” during the re-examination conducted on 31 July 2025 is, alone, sufficient to establish that she was overborne or intimidated to an extent that might cause a fair-minded lay observer to infer that any answer she might have given to his questions could not have changed his views. To the limited extent that it has any bearing on the question of how Assessor Jones conducted himself at the re-examination, history reveals that the plaintiff’s answers to the questions he asked of her were accepted by the review panel.
Turning to the fact that Assessor Jones asked the plaintiff why she was “not over the death of [her] mum”, it is to be recalled that the review panel’s assessment was directly concerned with the plaintiff’s claim that she continued to suffer from debilitating PTSD as a result of her mother’s death in the accident.
Whilst much could again turn on the tone in which such a question was asked, the question itself was directed to a matter which lay at the very heart of the plaintiff’s claim. As the plaintiff herself pointed out, the answer she gave to that question was accepted — without apparent qualification — in the reasons subsequently given by the review panel for their decision.
I am not satisfied that by asking that question — or observing that the plaintiff should be “celebrating” her mother’s life — Assessor Jones conducted himself in a manner that might reasonably have led a fair-minded lay observer to apprehend that he might not bring an impartial mind to the resolution of the question the review panel was required to determine.
For the above reasons, Grounds 4 and 5 are also not made out.
For the reasons given above, the plaintiff’s amended summons should be dismissed with costs. As each of the second and third defendants have filed submitting appearances, I will not, at this point, make any order as to their costs of the proceedings but will instead provide an opportunity to them to make any application that they might wish to make in that regard.
I make the following orders:
The amended summons is dismissed.
The plaintiff is to pay the first defendant’s costs of the proceedings.
Should any party wish to be heard further on the question of costs, they are to notify my associate of that fact by no later than 4pm on 11 August 2026 and the matter will be relisted for that purpose.
**********
Jazairy
AAI Limited t/as GIO Insurance
[2000] HCA 63
[2003] HCA 6
(2000) 205 CLR 337
(2014) 86 NSWLR 214
(2024) 280 CLR 321
(1998) 194 CLR 355
(2023) 279 CLR 148
(2003) 214 CLR 1
(2013) 252 CLR 480
(1985) 159 CLR 550