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[2026] NSWCA 86
respondent. Leave to appeal granted; appeal dismissed. The appellant was directed to file a notice of appeal in the form of the draft within seven days, with service requirements dispensed with. The appellant...
The Court of Appeal held that the Commission did not have to send Kewin's psychiatric-injury claim to a medical assessor simply because he and the insurer disagreed. The application process could require supporting evidence before an assessment was arranged. PIC6 required evidence demonstrating the injury status claimed, and the Commission had given Kewin an opportunity to provide more evidence. Because the application remained insufficiently supported, the delegate could decline to progress it. The Court granted permission to appeal but dismissed the appeal. It did not decide whether the existence of a medical dispute is a jurisdictional fact.
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14 cited instruments linked from this judgment.
2,134 words · generated 08/10/2026
Stephen Kewin claimed that a motor vehicle rear-ended him on 23 November 2018, causing physical and psychological injuries. The relevant statutory scheme was the Motor Accident Injuries Act 2017 (NSW), because the accident occurred after that Act commenced: [1]-[2].
The central dispute concerned the Act's category of “threshold injury”. Section 1.6 includes soft-tissue injuries and psychological or psychiatric injuries that are not recognised psychiatric illnesses. Regulation 4 also specifies acute stress disorder and adjustment disorder as threshold injuries: [3]-[5]. The classification matters because the Act limits or excludes certain benefits and damages where a claimant's injuries are confined to threshold injuries. The Court described limits on weekly compensation and treatment and care expenses, and the exclusion of damages under s 4.4: [2], [17].
By the time the appeal was heard, Kewin no longer challenged the insurer's position that his physical injuries were threshold injuries. The remaining dispute was whether he had a psychological or psychiatric injury that was a recognised psychiatric illness other than acute stress disorder or adjustment disorder: [1], [7].
The evidence he provided about psychological injury consisted of three kinds of material. A general-practitioner record referred to recurring dreams about car accidents and a need for a psychologist referral. An orthopaedic surgeon's report diagnosed physical injuries and added that Kewin had suffered a “significant psychological disturbance”, without explaining how that conclusion was reached or identifying the nature of the disturbance. Work-capacity certificates said he was awaiting a psychologist: [8]-[10]. The Court characterised the material as containing no evidence from a qualified medical expert identifying the claimed recognised psychiatric illness: [9].
Kewin applied to the Personal Injury Commission for medical assessment on 30 July 2024, describing the dispute as one about threshold injury and the injury as a psychiatric condition, depression, shock and anxiety: [11]. The Commission requested evidence of the injury and whether it was threshold or non-threshold, giving a deadline of 12 September 2024: [12]. Kewin's solicitors responded that the existing material was sufficient and argued that the Act did not require evidence from a claimant asserting a non-threshold injury: [13].
On 13 September, the Commission's Team Leader for Medical Disputes said the material did not confirm a psychological diagnosis and that the psychiatric dispute would not proceed. The communication said a new application could be lodged with sufficient and compliant evidence once a confirmed diagnosis had been obtained: [14]. Kewin sought judicial review. The Common Law Division dismissed his proceedings, and he sought leave to appeal. The Court of Appeal granted leave but dismissed the appeal: [6], [84]-[85].
The principal question was what s 7.20 requires. Section 7.20(1) permits specified parties and bodies to refer a medical dispute to the President. Section 7.20(2) says the President “is to arrange” for the dispute to be dealt with by medical assessors. Kewin argued that this mandatory language meant his dispute had to be referred, after which the assessor could request further information under s 7.20(4): [22]-[24], [38]-[39].
Leeming JA rejected the premise that the duty to arrange assessment required acceptance of every referral application. Reading s 7.20 as a whole, the Court distinguished the statutory language about “arrange” in subs (2) from the power to “refuse to accept” a referral in subs (3). The section therefore contemplated an intermediate acceptance step before an assessment was arranged: [53]. Although s 7.20(3) specifically addressed insufficient evidence in disputes about degree of permanent impairment, the Court did not consider that provision exhaustive of all grounds for refusing an application. It considered it unlikely that parties could disregard procedural requirements and still insist on an assessment: [57].
The procedural rules and direction supplied the relevant requirements here. PIC6 cl 17 required the applicant in a threshold-injury dispute to produce evidence demonstrating the injury status asserted. PIC Rules r 66(2)(c) required compliance with other procedural requirements for an application, while r 66(3) authorised refusal of a non-complying application: [31], [35]-[36], [52]. The Commission's request for further material corresponded to a deferral for requested information under PIC6 cl 27(a): [46].
On the facts, the delegate's communications were naturally read as recognising that there was an unresolved dispute but declining to progress an application that lacked the required supporting evidence. The opportunity to provide evidence was given, but no additional evidence was supplied: [46]-[52]. The delegate could conclude that cl 17 had not been satisfied: [52].
The Court also rejected the argument that PIC6 cl 17 was inconsistent with s 7.20. Once acceptance is understood as an anterior step, a procedural power to refuse a non-compliant application can coexist with the obligation to arrange assessment of an accepted dispute: [54]-[56]. The Court said this was not an impermissible reading down of the Act by reference to subordinate instruments. It rested on the distinction in the text between accepting an application and arranging assessment: [55].
The Court referred to the statutory purpose of quick, cost-effective and just resolution of disputes, expressed in s 1.3(2)(g), and the claimant's obligation under s 6.3(2)(c) to promptly do things reasonably necessary to facilitate resolution: [58]-[59]. It regarded a requirement for some evidence, rather than mere assertion, as consistent with that purpose and with the scheme's pre-assessment dispute-resolution process: [62]-[64].
The judgment describes a shift between the Motor Accidents Compensation Act 1999 and the 2017 Act. Under the earlier regime, “threshold injury” was not the same central statutory category. The 2017 Act made the classification significant by restricting benefits and damages for claims confined to threshold injuries: [2], [17]. The judgment notes that the term “minor injuries” was renamed “threshold injuries” by the Motor Accident Injuries Amendment Act 2022: [17].
The new classification generates disputes about whether a particular injury is threshold or non-threshold. Schedule 2 cl 2(e) includes that question among “medical assessment matters”: [19]. The Act provides internal review of an insurer decision about such a matter before referral in the ordinary case, and defines a medical dispute by reference to a dispute about a medical assessment matter: [20].
The judgment's main clarification concerns the procedural route into assessment. Section 7.20(2)'s mandatory language does not, by itself, compel the Commission to accept any application that describes a dispute. An application may be subject to procedural requirements, including the PIC6 evidence requirement, and the distinction between acceptance and later arrangement of assessment is material: [53]-[56]. On the facts considered, insufficient evidence permitted the application not to proceed to assessment after an opportunity to provide compliant evidence: [46]-[52].
The Court did not establish a general rule that a claimant must always obtain a psychiatric report before a threshold-injury application can proceed. Its reasoning addressed the text of PIC6 cl 17 and the evidence submitted in this case. The judgment describes the requirement as evidence demonstrating the injury status asserted, and the dispute here involved an alleged non-threshold psychiatric illness that had not been identified: [48]-[52]. The decision should therefore be read with its procedural and evidentiary context.
Nor did the Court finally resolve whether the existence of a medical dispute is a jurisdictional fact. It explained the jurisdictional-fact concepts and considered the appellant's argument, but held that the decisive question was whether the application could be declined for lack of supporting evidence: [65]-[75]. That question made a conclusive ruling on jurisdictional fact unnecessary.
At [48], the Court explained that cl 17 required an applicant claiming a non-threshold psychiatric injury to demonstrate that status. In context, the claim required establishing that the injury was a recognised psychiatric illness and was not one of the specified threshold conditions. In plain English, naming a psychiatric condition or saying that one exists was not, on these facts, enough to satisfy the procedural requirement.
At [53], Leeming JA said s 7.20 must be read as a whole and that an application must first be accepted before assessment is arranged. The practical point is that the statutory duty to allocate an assessor does not arise merely because a claimant has submitted an application. The acceptance stage and the assessment-arrangement stage are separate.
At [54], the Court said there was no inconsistency between the duty to arrange assessment and a power to refuse a procedurally non-compliant application. Put simply, a mandatory next step after acceptance does not eliminate the preliminary screening of whether the application satisfies applicable requirements.
At [58], the Court relied on the Act's dispute-resolution purpose and s 33 of the Interpretation Act 1987 (NSW), which requires a construction promoting statutory purpose. The Court considered that requiring supporting material before assessment was compatible with early and cost-effective resolution, rather than requiring the scheme to send unsupported claims to assessment.
At [75], Leeming JA said the case turned not on whether “medical dispute” was a jurisdictional fact, but on whether the delegate could dismiss an application unsupported by evidence. In plain English, the appellant's jurisdictional-fact argument did not answer the decisive procedural point.
The decision is most directly relevant where a claimant seeks medical assessment of a threshold-injury dispute under the 2017 Act, asserts that an injury is non-threshold, and the applicable Commission procedure requires evidence demonstrating that asserted injury status. The facts here included a psychological injury claim, no identified recognised psychiatric illness, and no expert diagnosis establishing that the injury fell outside the specified threshold conditions: [8]-[14], [48].
It is also relevant where the Commission has requested further evidence and allowed an opportunity to provide it, but the applicant relies on material that does not substantiate the injury classification asserted. The Court treated the request as consistent with deferring allocation for information and the later refusal as based on non-compliance: [46]-[52].
The judgment is less directly about a case where a claimant provides evidence identifying a recognised psychiatric illness but the insurer disputes whether it was caused by the accident, or disputes its classification on competing medical evidence. Nor does it determine what minimum type or quantum of evidence will satisfy cl 17 in every case. Those questions were not resolved by the stated facts or reasoning.
The judgment text provided contains no decisions made after Kewin and therefore does not establish how later courts have treated it. It would not be grounded in this source to describe subsequent application, limitation, approval, or distinction by later courts.
The Court did discuss earlier authorities. It relied on Jaycar, Exton and Kassam when granting leave because the issue was said to raise a question of general public importance: [6]. It discussed Mandoukas on the meaning of a dispute “about a medical assessment matter”, including that the dispute is the one that has in fact arisen between claimant and insurer: [20]. It cited Bay Simmer on the mandatory quality of “is to arrange” while explaining that the wording did not determine the whole operation of s 7.20: [53].
On jurisdictional facts, the judgment referred to Enfield and Gedeon for descriptions of the concept and to Timbarra, Smith and McMillan on its operation and statutory construction: [65]-[68]. It observed that the primary judge had applied Insurance Australia Ltd v Scott, but considered the jurisdictional-fact issue unnecessary to resolve in the appeal: [75]. These are authorities considered in Kewin, not later treatment of Kewin itself.
The first open question is whether the existence of a medical dispute under this statutory scheme is a jurisdictional fact. The Court set out the relevant framework but did not decide the issue because the application could be resolved on the procedural acceptance point: [65]-[75].
Second, the judgment does not define the minimum evidence required by PIC6 cl 17 for every threshold-injury dispute. It held that the material in this case did not demonstrate the injury status asserted, given the absence of an identified psychiatric illness and a confirmed diagnosis: [8]-[14], [48]-[52]. Different evidence or a different type of injury claim may raise distinct questions.
Third, the judgment does not decide the precise boundary between an insufficiently supported medical dispute and the non-existence of a medical dispute. Leeming JA doubted the insurer's contention that no dispute existed, noting that Kewin asserted that his injury was not threshold and the insurer disagreed: [81]. That alternative issue was not necessary to the outcome.
Fourth, the Court did not determine whether a particular applicant's inability to fund medical evidence could affect the application of the procedural requirements. It rejected the general submission that potential financial hardship altered the construction of s 7.20, and discussed the scheme-level allocation of costs: [60]-[64]. It did not examine a distinct evidence-based claim about an individual's circumstances.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Kewin v AAI Ltd t/as GIO Insurance [2026] NSWCA 86
Hearing dates: 5 May 2026
Decision date: 20 May 2026
Before: Leeming JA at [1]
Kirk JA at [66]
Griffiths AJA at [67]
Decision: 1. Grant leave to appeal.
2. Direct the appellant to file a notice of appeal in the form of the draft notice of appeal at tab 8 of the White Folder within 7 days, and dispense with the requirements as to service.
3. Appeal dismissed.
4. Appellant to pay the costs of the first respondent as agreed or assessed.
Catchwords: ADMINISTRATIVE LAW — judicial review — motor vehicle accident — decision under Motor Accident Injuries Act 2017 (NSW), s 7.20 not to refer a claim for assessment — claimed psychological or psychiatric injury — dispute as to whether claimant suffered a threshold injury — application unaccompanied by evidence of claimed injury — whether obligation to refer dispute to assessment — whether existence of medical dispute a jurisdictional fact — whether procedural rules inconsistent with s 7.20
Legislation Cited: Interpretation Act 1987 (NSW), s 33
Motor Accident Injuries Act 2017 (NSW), ss 1.3, 1.6, 2.1, 2.36, 3.11, 3.28, 4.4, 4.8, 4.11, 4.12, 6.3, 6.27, 6.29-6.32, 7.9, 7.15, 7.17, 7.19, 7.20, 7.23, 7.26, sch 2 cl 2
Motor Accident Injuries Amendment Act 2022 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Motor Accidents Injuries Regulation 2017 (NSW), reg 4
Personal Injury Commission Act 2020 (NSW), ss 5, 19, 20, 21
Personal Injury Commission Rules 2021 (NSW), rr 5, 66, 67
Procedural direction PIC6 – Medical Assessments, cll 1, 5, 7-11, 14-19, 17, 27
Subordinate Legislation (Postponement of Repeal) Order 2025
Subordinate Legislation Act 1989 (NSW), s 11
Supreme Court Act (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited: Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49
Bay Simmer Investments Pty Ltd v State of New South Wales (2017) 222 LGERA 286; [2017] NSWCA 135
Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43
Insurance Australia Ltd t/as NRMA Insurance v Scott (2016) 92 NSWLR 741; [2016] NSWCA 138
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Kassam v Hazzard; Henry v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299
Mandoukas v Allianz Australia Insurance [2024] NSWCA 71
McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183
Smith v Blanch (2025) 118 NSWLR 70; [2025] NSWCA
State of New South Wales v Exton [2017] NSWCA 294
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8
Texts Cited: Diagnostic and Statistical Manual of Mental Disorders (DSM-V)
Category: Principal judgment
Parties: Stephen John Kewin (Applicant)
AAI Ltd t/as GIO Insurance (First Respondent)
President of the Personal Injury Commission of New South Wales (Second Respondent, submitting)
Representation: Counsel:
A Canceri (Applicant)
J Gumbert, D Kim (First Respondent)
Solicitors:
CMC Lawyers (Applicant)
Moray & Agney (First Respondent)
File Number(s): 2025/487864
Publication restriction: Nil
The motor accident involving the appellant occurred in 2018 and hence the Motor Accident Injuries Act applies. In contrast to its predecessor (the Motor Accidents Compensation Act 1999 (NSW)), “threshold injury” is an important concept under the current regime. A claimant whose injuries are confined to threshold injuries is subject to limits on payments of weekly compensation (s 3.11) and treatment and care (s 3.28) and is not entitled to damages (s 4.4).
Threshold injury is defined in s 1.6 as follows:
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.
(2) A soft tissue injury is (subject to this section) an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
(3) (Repealed)
(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.
(5) …
The power to include particular psychiatric illnesses in s 1.6(4)(b) was exercised by reg 4 of the Motor Accidents Injuries Regulation 2017 (NSW) which provides that “acute stress disorder” and “adjustment disorder” are included as a threshold injury for the purposes of the Act, as those terms are defined in the D**iagnostic and S**tatistical M**anual of M**ental D**isorders (DSM-V) published by the American Psychiatric Association in May 2013. Regulation 4 has been in force (and remains in force) at all relevant times: see s 11 of the Subordinate Legislation Act 1989 (NSW) and the Subordinate Legislation (Postponement of Repeal) Order 2025.
Accordingly, in order for a psychological or psychiatric injury not to be a threshold injury, it must be a recognised psychiatric illness other than “acute stress disorder” and “adjustment disorder” as those terms are defined in DSM-V.
The underlying facts are uncontroversial and concise. The appellant lodged applications for common law damages and personal injury benefits in July and early November 2021, stemming from a motor accident on 23 November 2018. Most of the claimed injuries were physical, but they included a psychological or psychiatric injury. On 7 May 2024, the insurer determined that the entirety of the claimed injuries were “threshold injuries” and therefore denied liability. The appellant sought and obtained internal review by the insurer of its decision. The review confirmed that none of the claimed physical injuries was other than a threshold injury and that aspect of its decision has not subsequently been challenged.
In relation to the claimed psychological or psychiatric injuries, the appellant had provided three pieces of supporting evidence.
The first was a record of a general practitioner following a consultation on 30 January 2020 stating that “referral to psychologist needed having recurring dreams about car accidents”;
The second was a medico-legal report from an orthopaedic surgeon (Dr Bodel) which included the following passage:
Diagnosis
The diagnosis here is a soft tissue whiplash associated disorder of the cervical spine, musculoligamentous injury to the lower part of the back. He has rotator cuff pathology in both shoulders, lateral epicondylitis in the right elbow, a restricted range of wrist movement because of musculoskeletal injuries to the left wrist but no neurological abnormality. He has also suffered a significant psychological disturbance.
The report did not identify what steps if any were taken by the orthopaedic surgeon to reach the diagnosis of a significant psychological disturbance or anything further as to the nature of that disturbance.
The third was a number of certificate of fitness for work all of which stated that the appellant was unfit for work and also stated in a box headed “referral to another health service or rehabilitation provider” the words “physiotherapy and awaiting to see psychologist”.
In short, there was a claim of non-threshold psychological or psychiatric injury, but no evidence from any qualified medical expert of that injury, nor even any statement of what the recognised psychiatric illness was.
In its internal review, the insurer stated:
I note that, in your Application for Internal Review, your Solicitors reported that you were continuing to experience psychological symptoms.
Dr Bodel provided a diagnosis of significant psychological disturbance.
However, I note there is no evidence to suggest that your GP or a psychologist assessed or diagnosed any psychological injury.
On 30 July 2024, the appellant lodged an application for medical assessment with the Personal Injury Commission. The matter in dispute was defined as “threshold injury” and its nature was described as “psychiatric condition” and “depression, shock, anxiety”. The application was accompanied by a bundle of material, which in so far as it was directed to the claimed psychiatric injury, included only the three classes of evidence identified above.
On 2 September 2024, there was a communication from the Personal Injury Commission as follows:
There has been no evidence provided in relation to a psychological injury and in relation to whether it is a non-threshold or threshold injury.
I note the insurer omitted the psychological injury from the internal review due to lack of evidence.
The Commission requests that evidence relating to the injury be provided to the Commission by close of business 12 September 2024.
If no evidence is provided by this date the injury will not be included and not allocated for assessment.
… We note … Dr Bodel opines that the claimant “has also suffered a significant psychological disturbance”.
We further note that the claimant’s GP … states multiple times throughout his records that the claimant would require a referral to see a psychologist…. The claimant advises that he still requires treatment from a psychologist and was under the impression that the insurer would organise same as part of their rehabilitation and recovery programs.
The claimant has since been advised to attend upon his current GP to obtain a referral to see a psychologist.
Noting the above, it is clear that the claimant did in fact suffer a psychological impairment and as a result of the accident and this injury should be referred to assessment.
The above mentioned medicals is sufficient to evidence that there is a psychological injury, and the Act does not require evidence from a party asserting that the injury is a non-threshold injury. It is not economical for medico legal reports to be purchased in circumstances where the cost may not be recovered.
I thank the claimant for the below submissions however this is still not sufficient evidence.
The submissions below and the evidence previously provided does not provide a confirmed diagnosis of psychological injury.
Due to the lack of evidence the psychiatric dispute will not be proceeding.
Should the claimant wish to have the psychiatric dispute determined a new application will need to be lodged with sufficient and compliant evidence once a confirmed diagnosis of psychological injury has been sought and provided.
The objects of the M**otor A**ccidents I**njuries A**ct include in s 1.3(2)(g) “to encourage the early resolution of motor accident claims and the quick, cost-effective and just resolution of disputes”.
An important change between the Motor Accident Injuries Act and its predecessor, the Motor Accidents Compensation Act 1999 (NSW), was that if the only injuries sustained were “threshold injuries” (formerly known as “minor injuries”, until amendments made by the Motor Accident Injuries Amendment Act 2022 (NSW)), then the scheme of the Act was to limit or deny compensation and entitlement to damages. In addition to the prohibition upon damages for non-economic loss 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% (s 4.11), as noted above there is now a prohibition against an award for any damages if the person’s only injuries for the motor accident were threshold injuries (s 4.4). Further, payments of compensation and treatment for care expenses cease no later than 52 weeks after the motor accident if the person’s only injuries resulting from the motor accident were threshold injuries ss 3.11 and 3.28 (at the time of the appellant’s accident, it was 26 weeks, with the amendment being effected by item 16 of Schedule 1 of the Motor Accident Injuries Amendment Act 2022).
One purpose of the Motor Accident Injuries Act was to cut back on the large volume and relatively expensive class of claims for relatively minor personal injury, in order to reduce the costs of the scheme. That is apparent not merely from the concept of “minor injuries” (now renamed “threshold injuries”) to which the consequences in ss 3.11, 3.28 and 4.4 attached. It is also apparent from the extrinsic material accompanying the legislation. The Minister who introduced the bill said:
The bill will reduce costs in a number of ways. The introduction of statutory and no-fault benefits under part 3 will reduce legal costs and the adversarial nature of the scheme because injured people will no longer have to lodge a common law damages claim to get compensation for their injuries. Costs will be further reduced by the removal under part 4 of access to common law damages for soft tissue and minor psychological and psychiatric injuries, which have contributed to a large spike in scheme costs and reduced the proportion of benefits going to those with more serious injuries (Parliamentary Debates, Hansard, 9 March 2017).
The appellant emphasised a further consequence of that change. The introduction of the category of “threshold injuries” for which no or only limited benefits and compensation are available has given rise to a new category of dispute, namely, whether claimed injuries are or are not threshold injuries. That is in turn reflected in cl 2 of schedule 2 of the Act, which defines “medical assessment matters” to include not merely the degree of permanent impairment of a person, including whether it is greater than a particular percentage such as 10% and the degree of impairment which has resulted from the injury caused by the motor accident, but also “whether the injury caused by the accident is a threshold injury for the purposes of the act” (cl 2(e) of schedule 2).
Following a decision by an insurer, s 7.9 authorises the claimant to request an internal review about a “medical assessment matter”. Internal review is ordinarily required before there may be a referral for assessment: s 7.19(1). (There are exceptions but none is applicable here.) Section 7.17 defines a “medical dispute” to mean relevantly a “dispute between a claimant and insurer about a medical assessment matter”. In Mandoukas v Allianz Australia Insurance [2024] NSWCA 71 at [73], it was said:
The phrase “about a medical assessment matter” in s 7.17 does not mean that the medical dispute necessarily encompasses the whole of the medical assessment matter. Rather, a dispute between a claimant and an insurer about a medical assessment matter, in s 7.17, is a reference to the dispute which has in fact arisen between a claimant and an insurer, albeit that, to fall within the definition of ‘medical dispute’ in s 7.17, that dispute must relate to the subject matter of a medical assessment matter. That construction is consistent with one of the objects of the Act being to encourage “the quick, cost effective and just resolution of disputes”: s 1.3(2)(g). It is also consistent with the provisions set out above imposing an obligation upon the parties to do all things reasonably necessary to facilitate the resolution of any dispute involving the claim and providing for part only of a claim to be admitted (emphasis added).
7.20 Medical assessment procedures
(1) A medical dispute about a claim may be referred to the President for assessment under this Division by—
(a) either party to the dispute, or
(b) a court or the Commission, or
(c) a merit reviewer.
(2) The President is to arrange for the dispute to be dealt with by one or more medical assessors.
(2A) The President may arrange for a medical assessor to assess the dispute outside the State—
(a) if requested by a party to the dispute, or
(b) with the consent of the parties to the dispute.
(2B) In deciding whether to make an arrangement under subsection (2A), the President must consider the following—
(a) the interests and wishes of the parties to the dispute,
(b) the nature and complexity of the dispute,
(c) if the arrangement is necessary for the timely and cost effective assessment of the dispute,
(d) other matters the President considers relevant.
(3) The President can refuse to accept the referral by a party to a claim of a dispute about the degree of permanent impairment if the party has provided insufficient evidence in support of the degree of permanent impairment asserted by the party.
(4) 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.
(5) It is a condition of an insurer’s licence under this Act that the insurer must comply with subsection (4).
(6) The medical assessor may decline to make a medical assessment if the claimant or the insurer has failed to provide any such information required by the assessor.
Section 7.20 is the gateway to the regime to resolve disputes by assessment. The regime involves assessment by a medical assessor, who is to give a certificate which is prima facie evidence of the degree of impairment of earning capacity, and conclusive evidence of any other matter certified: s 7.23. Provision is made for the appointment, qualifications, functions and control of medical assessors under Division 4.1 of Part 4 of the Personal Injury Commission Act 2020 (NSW). There is only limited scope for a court to “reject” a medical assessor’s certificate (speaking generally, the court may do so on the ground of procedural unfairness and only if admission of the certificate would cause substantial injustice: see s 7.23). Provision is made for further assessment in certain cases and for review by a review panel: s 7.26. It is sufficient for present purposes to observe that the result is that the matters determined by assessment will to a significant extent supplant determination of those issues by a court when and if a claim for damages is made. Hence the significance of s 7.20 which permits either a claimant or an insurer to apply for the referral of a medical dispute about a claim to assessment.
In the present case, the appellant claimed to be entitled to a referral of the medical dispute for assessment pursuant to s 7.20(1)(a) and (2). The dispute was not about the degree of permanent impairment, and so the discretionary power to refuse to accept the referral for insufficient evidence in s 7.20(3) was not available. According to the appellant, the mandatory words in s 7.20(2) (“is to arrange”) required the President to arrange for medical assessment, and then a medical assessor would determine if the appellant had sustained a recognised psychiatric illness which was not adjustment disorder or acute stress disorder, if necessary requesting further information from him pursuant to s 7.20(4). For reasons that I shall explain below, I do not accept that is how the section works.
Unsurprisingly, in a high-volume administrative regime to resolve disputes between claimants and insurers, there are procedural requirements, which are summarised below.
Section 21 of the Personal Injury Commission Act 2020 (NSW) authorises the President to give procedural directions relating to the practice and procedures to be followed in proceedings before the Commission or medical assessors.
“Procedural direction PIC6 – Medical Assessments” was in force at the relevant time. It stated in cl 1(d) that it provided information about applying for and the assessment of, inter alia, “threshold injury disputes under schedule 2(e) of the 2017 Act.”
Clause 3 authorised the President or a member before whom a matter was listed to excuse a party from complying with any aspect of a direction.
Clause 5 provided that the direction was to be “read with and subject to any provision of … the enabling legislation”, and that included the Motor Accident Injuries Act.
Clauses 7, 8, 9, 10 and 11 imposed administrative requirements for the lodgement of applications and cl 12 entitled the President to refuse to accept, seal or issue a non-compliant document. The requirements included using and complying with the approved forms, all documents being indexed and paginated, and not exceeding 500 pages unless an “Application to Lodge Additional Documents” form was completed.
Clauses 14-19 were headed “Motor Accidents Division”. Clause 15 provided that a medical dispute about a decision of an insurer may not be referred as an assessment until there had either been an internal review or the insurer had declined to conduct a review. Clauses 16, 17 and 18 were as follows:
- For an application for assessment of permanent impairment dispute under the 2017 Act, the President can refuse to accept the referral by a party to a claim of a dispute about the degree of permanent impairment if the party has provided insufficient evidence in support of the degree of permanent impairment asserted by the party.
- For an application for assessment of whether the injury caused by the motor accident is a threshold injury (as defined in section 1.6 of the 2017 Act) for the purposes of the 2017 Act (see Schedule 2, clause 2(e)), the applicant party must produce with the application the evidence that demonstrates the injury status as asserted by them, namely that the claimant has suffered a threshold injury or has not suffered a threshold injury within the meaning of section 1.6 of the 2017 Act.
18. A party must lodge medical evidence in support qualified by a treating health practitioner or a practitioner authorised by the Motor Accident Guidelines to give evidence in the proceedings (this includes holding a general or specialist registration with the Australian Health Practitioner Regulation Agency). Otherwise, the medical evidence will be inadmissible under section 7.52 of the 2017 Act
- The allocation of an application may be deferred for a period of time that the President considers appropriate in the following circumstances:
(a) further information or documentation has been requested;
(b) there are other claims or issues in dispute or likely to be in dispute which would more conveniently be determined at the same time;
(c) if the President is satisfied that the matter may be resolved by the parties and to allow the parties an opportunity to settle the claim;
(d) the issues in dispute involve medical disputes which require a medical assessment, and that medical assessment has not occurred;
(e) the claimant’s injury has not sufficiently recovered to enable the claim to be quantified having regard to any medical evidence attached to the application or reply, or
(f) if there are other good reasons to defer the allocation of the application.
The Personal Injury Commission Act also authorises the making of rules (which are disallowable instruments) by the Rule Committee: ss 19 and 20. The Personal Injury Commission Rules 2021 (NSW) defined “applicable proceedings” to include “medical assessment proceedings”, and defined the latter term to be proceedings before a medical assessor under enabling legislation: rr 5(2) and 5(5). “Enabling legislation” includes the Motor Accidents Injuries Act: see Personal Injury Commission Act, s 5.
Rule 66 provided that:
66 Application to commence applicable proceedings
(1) Applicable proceedings may be commenced by lodging an application for the proceedings concerned in the approved form.
(2) The application must—
(a) set out, or be accompanied by, the particulars and information required by the approved form relevant to the resolution of the real issues in the proceedings, and
(b) be lodged within the period specified by enabling legislation or these Rules for applications of the kind concerned, and
(c) comply with other procedural requirements for the application.
(3) The President may refuse to accept an application that does not comply with a requirement of this Part.
Rule 67(1)(a), in the form it took when the appellant’s application was lodged, required a party to lodge and serve on the other parties “the information and documents relevant to the resolution of the real issues in the proceedings on which the party proposes to rely that (i) are in that party’s possession and (ii) that have not been lodged in the current proceedings”.
It is clear enough that rr 66 and 67 proceed on the basis that while there may be a dispute between a claimant and an insurer, “proceedings” will only be commenced when an appropriate originating process is lodged with the Commission. That is consistent with the way the term “proceedings” is used in the statutes in this area. When the Motor Accident Injuries Act is referring to litigation in a court, it may refer to “court proceedings” (see eg ss 2.31(3), 6.27, 6.29, 6.30, 6.31, 6.32, etc) but sometimes the word “proceedings” is used to include proceedings in the Commission (thus s 2.36(3) confers authority on a licensed insurer to deal with a claim “and any proceedings relating to the claim”, ss 4.8 and 4.12 refer to “proceedings before a court or the Commission” while the review by a review panel under s 7.15 is to be within the time permitted “for the kind of proceedings in accordance with the Commission rules”). Likewise, Part 5 of the Personal Injury Commission Act proceeds on the basis that there are “proceedings” in the Commission, hence the headings to Divisions 5.2 (“Commencement of Proceedings”), 5.3 (“Participation in Proceedings”), 5.4 (“Conduct of Proceedings”) and 5.5 (“Determination of Issues and Proceedings”).
The applicant’s argument is that it is a jurisdictional fact as to whether a medical dispute exists or not, and the Court can enquire as to whether that fact exists, and in terms of evidence to establish a threshold injury, that is within the province of the medical assessor. There’s a situation where the dispute gets referred, it goes to the medical assessor, and then it’s within the medical assessor’s functions to ask for information.
KIRK JA: Your argument boils down to this I think, or at least has this consequence. If a claimant says I have injury X and it’s said there’s just not a skerrick of evidence that you have injury X, and the claimant says “Yeah but I have it,” there is then a dispute which must be referred to a medical assessor. Do you accept that’s the consequence?
CANCERI: Yes, that is a consequence, but your Honour has left out the safety mechanism in the form of s 7.20(4) and (6).
I do not accept the appellant’s submissions, and I shall explain why below. However, it is better to take a broader approach, lest it be thought that the limited challenge made by the appellant has left in place a decision whose validity was capable of challenge but not on the basis advanced by him.
The starting point in proceedings in the nature of judicial review of the exercise of executive power is to identify the decision and power (or powers) capable of sustaining the decision.
The decision challenged by the appellant was the decision to decline to take any step to advance the application for referral to assessment. It was anticipated on 2 September 2024 and made on 13 September 2024. It was expressed in neutral, informal terms: “Due to lack of evidence the psychiatric dispute will not be proceeding”.
The applicant’s submission was not merely that the existence of a medical dispute was a jurisdictional fact. It was also that the President’s delegate was to be taken to have determined that there was no medical dispute, and on that basis was not required by s 7.20(2) to arrange for a referral.
The appellant relied upon a submission (which in substance invokes the expressio unius maxim) based upon the express power to refuse to accept a referral in the case of a dispute concerning the degree of permanent impairment where there was insufficient evidence in s 7.20(3). The presence of that express power was said to tell against there having been any corresponding power to refuse to accept a referral on the basis of insufficient evidence concerning a dispute about threshold injury.
I do not accept that the appellant has correctly characterised the President’s delegate’s decision. Nor do I not accept the construction of s 7.20 on which the appellant’s submissions rest. Further, I do not think that an analysis in terms of jurisdictional fact is productive or indeed relevant.
In the present case, it may be seen that the President’s delegate’s communication of 2 September 2024 referring to the absence of evidence concerning the psychological injury and whether it was a non-threshold injury requesting that evidence be provided by 12 September 2024 corresponded to the deferral for a period of time contemplated by cl 27(a) of Procedural Direction 6. The insistence that there be medical evidence concerning whether claimed psychological or psychiatric injury was a non-threshold injury is consistent with cl 17 of the Procedural Direction.
The parties’ submissions were framed in terms of jurisdictional error in failing to find that there was a medical dispute. But that is not a natural way of reading the Team Leader’s request for evidence and dismissal of the application for referral. Instead, the natural way of reading it is that the President’s delegate fully appreciated that while there was an unresolved medical dispute between the claimant and insurer, it was not sufficiently evidenced to comply with cl 17 of Procedural Direction 6 and therefore should not be accepted.
Clause 17 provides that where the application is whether the injury is a threshold injury, “the applicant party must produce with the application the evidence that demonstrates the injury status as asserted by them, namely that the claimant has suffered a threshold injury or has not suffered a threshold injury within the meaning of section 1.6 of the 2017 Act”. The appellant was the “applicant party” and was claiming that his psychiatric injury was not a threshold injury. That involved establishing that the injury was a recognised psychiatric illness and not “acute adjustment disorder” or “adjustment disorder” within the meaning of DSM-V. After all, cl 17 bound both the claimant and the President’s delegate.
Further, the President’s delegate also advised that a new application could be lodged “with sufficient and compliant evidence once a confirmed diagnosis of psychological injury has been sought and obtained”. That advice is simultaneously (a) inconsistent with a decision that there is no medical dispute, and (b) supportive of the conclusion that no steps would be taken to arrange for the dispute to go to assessment because the claimant’s application was insufficiently supported by evidence.
All of this tells against treating what the President’s delegate did as determining that there was no medical dispute and declining to make the referral on that basis.
A decision in the exercise of executive power may be characterised in more than one way. However, I do not consider that the characterisation of what occurred for which the appellant contends is available. There is nothing to suggest that the President’s delegate considered that there was no medical dispute, as opposed to proceeding on the basis that the medical dispute sought to be referred for assessment was a dispute which was unsupported by sufficient evidence.
Turning now to s 7.20, the appellant’s submissions do not attend to important distinctions in the subsections, which differentiate “arranging” and “refusing to accept”.
Subsection (1) entitles various persons to refer a dispute to the President. It makes no explicit provision for what the President is to do when a dispute has been referred.
Subsections (2), (2A) and (2B) use the verb “arrange”. That refers to a power to allocate a particular dispute to one or more medical assessors; no doubt the President’s discretion involved identifying assessors who had appropriate expertise, and availability and were not conflicted. The appellant’s submissions seized on the fact that subs (2) is expressed in terms which impose an obligation. So much may be accepted (see for example Bay Simmer Investments Pty Ltd v State of New South Wales (2017) 222 LGERA 286; [2017] NSWCA 135 at [77]). However, that overlooks how the section operates as a whole.
It is axiomatic that s 7.20 must be read as a whole. That involves giving it a legal meaning which prima facie respects the different verbs “arrange” in subs (2), (2A) and (2B) and “accept” in subs (3). It is clear that before the assessment of a medical dispute is to be arranged, the application must first be accepted. That is to say, subs (3) confirms that there must be an intermediate step between referral of a medical dispute and arranging for it to be dealt with by a medical assessor. The intermediate step is that the President can refuse to accept the application for referral, at least if it is about the degree of impairment and the President is of the view there is insufficient evidence.
The dispute between the appellant and the insurer is not about the degree of permanent impairment, and thus s 7.20(3) is inapplicable. But s 7.20(3) makes it clear that there will be at least some medical disputes that can be refused by the President. There is nothing to suggest that the distinction between accepting a referral and arranging for its assessment is confined to medical disputes concerning the degree of permanent impairment.
Ground 2 of the appeal is that the Procedural Direction was inconsistent with s 7.20 of the Act. Nothing was said in support of this in oral submissions, save that it was consequential upon the success of ground 1. But there is no inconsistency between an obligation upon the President (or the President’s delegate) to refer a dispute to medical assessment, and a power to refuse to accept an application if it does not comply with procedural requirements, once it is appreciated that acceptance of an application is an anterior step to arranging for its assessment.
That conclusion involves no impermissible reading down of the statute by reference to the regulations and rules of the Procedural Direction. It rests instead upon the distinction present in the text of s 7.20 between refusing to accept an application and arranging for it to be referred, coupled with the fact that the statute contemplates that many matters of detail in the statutory regime are left unstated.
GRIFFITHS AJA: Why is it not implicit in that definition of threshold injury that the delegate is fully entitled to require the applicant for the referral to put forward some evidence that demonstrates that there is a psychological or psychiatric injury that is not a recognised psychiatric illness and that the injury has been caused by the motor accident?
CANCERI: Because, in short, so many claimants would be cut off from receiving compensation and/or damages if that occurs.
GRIFFITHS AJA: That’s a consequence. There’s still a threshold issue of construction here.
CANCERI: That is a consequence that, I submit, will be visited upon many claimants in this system.
GRIFFITHS AJA: It may well be, but there are lines that are drawn in this legislation. Some of them favourable to claimants, some of them favourable to insurers. I don’t see that the fact that it has that consequence is going to be determinative of the issue of construction.
The second is that it is difficult to see what is “harsh” about the construction. It is to be borne steadily in mind that the referral of disputes to medical assessment is an aspect of a regulatory regime to resolve disputes efficiently and outside court. The regime insists that before a dispute is referred, there must first be a decision by the insurer and an internal review, and it requires claimants to do all things reasonably necessary to facilitate the resolution of disputes. There is nothing unusual, let alone harsh, in insisting that a claimant who wishes to receive compensation or damages for a psychological injury first provide some evidence (as opposed to an assertion) that demonstrates that injury to the insurer. Until some evidence is supplied demonstrating that a claimant has sustained an injury which is not a threshold injury, there is no sound basis for the insurer to accept the claim. Far from being harsh, the construction for which the appellant contends would subvert the legislative purpose of facilitating the resolution of disputes between claimants and insurers before the delay and expense of assessment occurs.
Further, it is asserted that to require an application to be accompanied by evidence would deny claimants access to the scheme and that would be harsh. True it is that some more speculative claims may not proceed. But these considerations expose that in truth the claimed harshness is no more and no less than that the costs are not borne by insurers (and ultimately by drivers), through the levies that fund the scheme. It is difficult to conclude that there is any relevant harshness if (a) the claimant is unable or unwilling to pay for evidence supporting his or her claimed psychiatric injury, and (b) no one else is prepared to fund it because funders form the view that it is too speculative. Put differently, it is difficult to conclude that the costs in such marginal cases are costs which should be borne by the scheme as a whole, or that the policy choice that that not occur is “harsh”.
To summarise, an essential premise of the appellant’s argument is that the President’s delegate had no choice but to refer the dispute. That premise is not made out. That is dispositive of the appeal.
The term “jurisdictional fact” (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome.
The expression “jurisdictional fact” was used somewhat loosely in the course of submissions. Generally the expression is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker.
That was the sense in which the appellant sought to invoke that term in this litigation. He submitted that if there were a medical dispute, then it had to be referred to assessment, and the President’s delegate’s decision refusing to do so was wrong in law.
Ordinarily if the precondition to the exercise of a power is satisfied by the opinion of the donee of the power, a submission based on jurisdictional fact will fail, and a litigant challenging the validity of a decision must impugn the formation of the opinion. On the other hand, if the exercise of a power is only available if the precondition exists as a matter of fact, then the precondition will be a jurisdictional fact and a court may in judicial review proceedings determine whether the precondition existed, including on evidence not before the donee of the power: see, for example, Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8 at [36], [41] and [94]; Smith v Blanch (2025) 118 NSWLR 70; [2025] NSWCA 188 at [8]. It is well settled that whether or not a precondition to the exercise of power is a jurisdictional fact is a question of statutory construction: see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [60].
Turning to the appellant’s submissions, either the existence of a medical dispute is a jurisdictional fact for the purposes of the implied power to refuse to refer a dispute to assessment or it is not. (As it happens, there is authority that it is not, but that may for the moment be put to one side). If as the appellant submits it is a jurisdictional fact, the essential step in his argument is that the President’s delegate wrongly determined that there was no medical dispute and on that basis acted contrary to the Act, because instead of referring the dispute to medical assessment, he dismissed the application.
The appellant came close to accepting that nothing turned on the submissions based on jurisdictional fact. His submissions proceeded as follows. It was said that (a) s 7.20 carried with it an implied power to dismiss an application to refer a medical dispute only in circumstances that there was no medical dispute, (b) the existence of a medical dispute was a jurisdictional fact, (c) the President’s delegate had erred in finding that there was no dispute and on that basis dismissing the application, and (d) it was open to this Court to conclude that there was a dispute and set aside the dismissal. That emerges from this exchange:
LEEMING JA: What was the power that was purportedly exercised according to you? And where do we see the precondition to that power?
CANCERI: The power is contained in s 7.20(2), the President is to arrange for the dispute to be dealt with by one or more medical assessors, in the event that there is a medical dispute in s 7.21.
LEEMING JA: The power is implicitly there, is that the idea?
CANCERI: Yes, the power is--
LEEMING JA: Implicitly this compulsory power upon the President to arrange for disputes carries with it a power to dismiss your application?
CANCERI: Yes.
LEEMING JA: Okay, and what’s the jurisdictional fact?
CANCERI: The jurisdictional fact is the existence of a medical dispute.
LEEMING JA: There’s an implied power to dismiss, and as a matter of construction we say that implied power is subject to a jurisdictional fact, what, that there is no dispute?
CANCERI: Is subject to a jurisdictional fact that there is no medical dispute, yes, because if there is a medical dispute then there is no discretion vested in the President. The President is to arrange for the dispute to be dealt with by one or more medical assessors.
LEEMING JA: How does it fit with cl 17 of Procedural Direction 6?
CANCERI: It doesn’t fit in, because what I’m contending is once there is a medical dispute, then the President is to arrange for the dispute to be dealt with by one or more medical assessors.
LEEMING JA: That submission doesn’t seem to turn on jurisdictional fact. You seem to be saying irrespective of whether there’s some precondition to the exercise of power, if there is a dispute in fact, or if the donee of the power thinks there is a dispute, then there’s no choice, it must be referred?
CANCERI: Yes.
It is for that reason that I have commenced these reasons with an analysis of whether s 7.20 obliged the President to make the reference, and have hitherto delayed addressing the submissions invoking jurisdictional fact.
The appellant’s submissions in the Common Law Division and in this Court focussed upon the proposition that whether or not there was a “medical dispute” was a jurisdictional fact. The submission was an unusual one. Ordinarily, whether or not some issue is a “jurisdictional fact” is a legal conclusion on the construction of the statute designed to permit a Court to review the finding of jurisdictional fact, including perhaps on different evidence than what had been before the decision maker. Indeed, the appellant disavowed an ability to rely on facts not before the President’s delegate, as seen in the following exchange:
GRIFFITHS AJA: … [O]ne of the critical characteristics of a jurisdictional fact is that the court determines for itself the matter, not limited to the material that was before the primary decision maker, but is entitled to take into account material which is then put before the court, which is quite different of course to the normal orthodox judicial review doctrine.
What your argument effectively invites this Court to find is that if it’s a jurisdictional fact, then the claimant can come along before a judicial review court and put before the judicial review court all this new material that it declined to put forward, despite the request of the delegate, and it’s difficult I must say to reconcile such an outcome with the object of the Act in s 3, which talks about the desirability of early resolution of these matters.
CANCERI: I totally agree with what your Honour says. But if that scenario eventuated before the reviewing court, I apprehend that the reviewing court would have excellent grounds to dismiss the application for judicial review relief on discretionary grounds, namely that the plaintiff who approaches this Court now does so on the basis of so much other evidence that was not put before the original decision maker. The scenario which your Honour mentions I think would not escape the clutches of a refusal of relief on discretionary grounds.
As was also pointed out in argument, if as a matter of construction the valid exercise of a power is conditioned by something which is a jurisdictional fact, then it will ordinarily follow, again as a matter of construction, that that precondition may be challenged in judicial review proceedings on different evidence. The appellant’s submission is markedly at odds with the ordinary concept of jurisdictional fact.
In the present case, the appellant does not seek to rely on any different evidence. In the present case, the appellant submitted that irrespective of whether or not there was medical evidence supporting the appellant’s contention that he suffered from a non-threshold psychological injury, the President (by his delegate) was obliged under s 7.20(2) to arrange for the dispute to be dealt with by medical assessment. The appellant maintained that thereafter, pursuant to the powers conferred upon medical assessors to request medical information which was reasonably required for the purpose of the assessment, reports of the psychological injury could be obtained. But the appellant denied that it was necessary for such evidence to accompany the application for referral, and insisted that there was a dispute which mandated a referral.
The primary judge dismissed this aspect of the appellant’s submissions on the basis that her Honour was bound by what this Court had held in Insurance Australia Ltd t/as NRMA Insurance v Scott (2016) 92 NSWLR 741; [2016] NSWCA 138 concerning jurisdictional error. In this Court, an attempt was made to distinguish that reasoning. But for the reasons I have already given, this aspect of the case was misconceived. The issue is not whether a medical dispute is or is not a jurisdictional fact, but instead whether it was open to the President’s delegate to dismiss the application because it was unsupported by evidence. It is not necessary to address this further.
For completeness, I should address the additional submissions on behalf of the insurer. These too departed from the matters on which the validity of the President’s delegate’s decision turns.
The insurer contended that there was not in fact any dispute at all, because not only did there have to be a (claimed) injury, but also the injury had to fall within the scope of the definitions of the Act:
GUMBERT: There must be at a basic level an assertion of injury, but it would have to be injury that falls within the scope of the definitions in the Act, which is a recognised psychiatric or psychological injury. What was asserted here was not within the scope of the Act. The way the injury was expressed was not in any term that is within the DSM-5 recognised psychiatric injury terminology.
The insurer said that although it appeared that the application had been refused because it was unaccompanied by evidence, it was not possible to look inside the mind of the President’s delegate, and it may have been that in fact it had been determined that there was no medical dispute within the meaning of that term in the Act. It was said that in calling for further evidence to support the claimed psychiatric injury, “the delegate was getting to the heart of the issue of whether or not a dispute existed in the first place, albeit framed in terms of whether there is evidence, but equally it could be as to the existence in fact of that dispute”.
It was also said that it was necessary to ask if the application had been “validly” made:
there is only a mandatory requirement to refer a dispute if the application has first been validly made, and then secondly, there is only a mandatory requirement to refer a dispute if there is a dispute that in fact exists.
It’s only once there’s been compliance with the procedural requirements that attach to s 7.20(1) that one would even get to s 7.20(2). In short, the dispute must be validly commenced before there is anything for the President to refer or otherwise.
I am doubtful of this approach. A “medical dispute” is defined to mean, relevantly, “a dispute between a claimant and an insurer about a medical assessment matter”, which in turn picks up the matters declared in Schedule 2, here, whether the injury caused by the motor accident is a “threshold injury”. The appellant claimed his injury was not a threshold injury. He did not particularise why that was so, nor did he identify the recognised psychiatric illness from which he claimed to suffer. But that did not mean that there was no dispute – plainly there was and is a dispute between claimant and insurer, hence this litigation – and I fail to see why that extant dispute is not a “medical dispute” within the meaning of the Act. I see no reason to give a strained meaning to “medical dispute” so as to make the provision of sufficient articulation or evidence an element of the dispute’s existence. I can also see that doing so might also have the effect of imposing undue burdens and technicalities on the operation of the scheme.
Further, it is problematic, to say the least, to regard proceedings as “valid” or “invalid”. In Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32 at [13] the High Court referred to there being “a very real difficulty in characterising proceedings as ‘invalid’”. That statement was addressed to judicial proceedings, and need not necessarily extend to the administrative regime under the Act, but analogous difficulties apply as were elaborated at [13]-[16], in particular, the Commission must have authority to respond to the application which has been made to it, and that is apt to be by dismissing it for some procedural or substantive defect, rather than noting that it is “invalid”.
For those reasons the application must be dismissed. I have concluded that the appellant’s submissions are bad in law, and also that the underlying premise is not made out. Although I am doubtful of a number of the insurer’s submissions, I see no reason to depart from the general rule in UCPR r 42.1.
For those reasons, I propose these orders:
1. Grant leave to appeal.
2. Direct the appellant to file a notice of appeal in the form of the draft notice of appeal at tab 8 of the White Folder within 7 days, and dispense with the requirements as to service.
3. Appeal dismissed.
4. Appellant to pay the costs of the first respondent as agreed or assessed.
KIRK JA: I agree with Leeming JA.
GRIFFITHS AJA: I agree with Leeming JA.
**********
[8](2): "party" replaced by "part"
[3] and [8](2): formatting error corrected
Kewin
AAI Ltd t/as GIO Insurance
[2000] HCA 5
[2002] HCA 49
[2008] HCA 43
(2006) 225 CLR 364
(2000) 199 CLR 135
(2002) 213 CLR 543
(2017) 222 LGERA 286
(2008) 236 CLR 120
(2016) 92 NSWLR 741
(2021) 106 NSWLR 520
(2023) 111 NSWLR 634
(2025) 118 NSWLR 70
(1999) 46 NSWLR 55
Leave to appeal granted; appeal dismissed. The appellant was directed to file a notice of appeal in the form of the draft within seven days, with service requirements dispensed with. The appellant was ordered to pay the first respondent's costs as agreed or assessed: [85].
It was open to the President’s delegate to form the opinion that no evidence demonstrating that he had not suffered a threshold injury had been supplied. It was thereafter open to advise the appellant of that fact, and grant a further opportunity to him to do so. When that did not occur, it was open to form the view that cl 17 of the Procedural Direction had not been satisfied. Clause 17 was a procedural requirement applicable to the appellant’s application within the meaning of r 66(2)(c), binding on the delegate and the claimant, and r 66(3) authorised the President to refuse to accept a non-complying application.
The appellant’s argument to the contrary in substance reads s 7.20(2) as an obligation to accept a referred medical dispute, rather than an obligation to arrange for a dispute to be dealt with by a medical assessor. But before the President has occasion to arrange a dispute which has been referred, it must first be accepted.
Insofar as the appellant’s submission is based on s 7.20(3), it is an expressio unius argument. Such arguments are seldom strong: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49 at [34]. This one is no exception. It is most unlikely to be the case that, say, a claimant or an insurer can ignore procedural requirements and be entitled to insist that the President arrange a medical assessor to deal with it. At the very least, the President may be expected to be entitled to refuse to accept a dispute which does not comply – perhaps because it is out of time, or because the claimant is under an incapacity and there is no appointed representative (see s 7.47) or because it is accompanied by thousands of pages many of which are irrelevant, or because it is a mere assertion of injury with insufficient particulars to identify what the nature of the claim and therefore the dispute is. It would be close to absurd if s 7.20(3) were exhaustive of the bases on which the President could refuse to accept a referral, which is to say, it would be close to absurd if palpably deficient or non-compliant applications had to be referred because they did not involve a dispute about the degree of permanent impairment.
The appellant’s construction would also be contrary to the purpose of the legislation, which includes facilitating the resolution of disputes between claimants and insurers before they are referred to assessment. That is reflected in the requirement (subject to exceptions) for there to be internal review of an insurer’s decision, as well as the object of encouraging “the quick, cost effective and just resolution of disputes” in s 1.3(2)(g), and the obligation upon the claimant “to promptly do all things reasonably necessary to facilitate the resolution of any dispute involving the claim” in s 6.3(2)(c). This Court is required to prefer a construction which promotes the statutory purpose: Interpretation Act 1987 (NSW), s 33.
In the present case, the claimant claims to have suffered a recognised psychiatric illness which is not adjustment disorder or acute stress disorder. Yet he does not identify what that illness is, and he claims to be entitled not to have to provide evidence of a diagnosis (save for the assertion by an orthopaedic surgeon). It is scarcely surprising that the insurer does not accept the unsubstantiated claim. The result, practically speaking, is that an unresolved dispute is inevitable. It is very difficult to reconcile the obligation upon the appellant imposed by s 6.3(2)(c) with the stance taken in this litigation.
The appellant’s repeated response, when these difficulties were pointed out in argument, was that such a construction would produce harsh outcomes because, so it was said, there would be claimants who could not afford to obtain psychological or psychiatric evidence.
There are at least two obstacles to accepting that submission. The first is that it is an argument based on consequential reasoning, rather than a submission which engages with the statutory text, as was pointed out during the hearing: