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[2025] NSWCA 125
respondent. Leave to appeal refused. The applicant was ordered to pay the respondent’s costs of the application for leave to appeal.
The Court of Appeal refused Khanna permission to appeal. He had not shown that the case could realistically affect his financial position by at least $100,000, so an appeal as of right was unavailable. His proposed grounds also did not identify a sufficiently arguable mistake by the primary judge. The Court treated the medical causation findings as factual assessments and found that the applicant had not established a reviewable legal error or procedural unfairness.
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2,346 words · generated 06/10/2026
The case was an application for leave to appeal, not a full appeal on the merits. Payne and Free JJA considered whether Sanjeev Khanna could appeal Faulkner J’s decision in two related judicial review proceedings. The primary judge had found no jurisdictional error and no error of law on the face of the record in the Personal Injury Commission Review Panels’ decisions ([2], [53]).
10 cited instruments linked from this judgment.
The underlying accident occurred on 17 August 2016. Khanna was in a stationary car when another car struck it from behind. Insurance Australia Limited, the other driver’s third-party insurer, accepted that the accident happened and that its insured driver was at fault ([3]). The dispute concerned whether the accident caused or exacerbated particular medical conditions, and the consequences for treatment and permanent impairment.
Four categories of condition were assessed: alleged exacerbation of pre-existing diabetes; alleged exacerbation of a pre-existing cardiac condition; claimed physical injuries, including chest, head, spine, shoulder and arm injuries; and psychiatric conditions ([4]). Initial medical assessors made certificates, and the President of the Personal Injury Commission referred the certificates for review under s 63 of the Motor Accidents Compensation Act 1999 (NSW) ([10]–[11]).
The Review Panels undertook fresh assessments. Before doing so, they prepared a 59-page “Evidence Review” identifying material they considered relevant. They gave it to Khanna and the insurer and invited comments. Khanna supplied 14 pages of comments ([13]). The diabetes, cardiac and physical injury panels concluded that the accident had not caused the claimed exacerbations or injuries, apart from minor temporary physical injuries. The psychiatric panel also found no causal connection between the accident and the psychiatric conditions, including because it found that the accident had not caused the cardiac condition ([14]–[17]).
Khanna brought two Supreme Court proceedings seeking judicial review of the Certificates. The primary judge considered a substantial body of material and organised the applicant’s complaints into 14 themes ([18]–[22]). Those themes included the Review Panels’ expertise and examination procedures, alleged bias or procedural unfairness, compliance with the Motor Accident Guidelines, causation, treatment of evidence, delay and the adequacy of reasons. The primary judge rejected the complaints and found no reviewable error ([23]–[53]).
In the Court of Appeal, there were two central questions. First, was leave required because the matter did not meet the $100,000 threshold in s 101(2)(r) of the Supreme Court Act 1970 (NSW)? Second, if leave was required, did the proposed appeal meet the criteria for leave? The Court answered yes to the first and no to the second. Leave was refused, with Khanna ordered to pay the respondent’s costs of the leave application ([60], [98]–[99]).
The monetary threshold was not established by stating that the claim was worth more than $100,000. Under s 101(2)(r), the relevant question was whether there was a realistic prospect that success on appeal would improve the appellant’s financial position by at least $100,000. The Court said the appellant relying on the threshold bears the onus of establishing it ([54]–[56]). It drew on the principles in Gaynor and Jabulani, and described the test as well established, also referring to Emde ([55]–[57]).
The evidentiary gap was decisive. The underlying medical evidence and the Review Panels’ reasons were not put before the Court, apart from four cardiac documents. The Court considered those documents lacked context and did not establish the correct degree of accident-related impairment. There were no medical reports before the Court giving opinions about the impairment caused by the accident ([58]). Without that material or another intelligible basis for calculating the likely financial effect of a successful appeal, the Court could not draw the necessary inference. Even assuming the applicant’s complaints were correct would not fill that gap ([59]). The Court therefore held that leave was required ([60]).
The leave application also had to satisfy the ordinary criteria. Leave would ordinarily be granted if the proposed appeal raised an issue of principle, a question of public importance, or sought to address a reasonably clear injustice going beyond something merely arguable ([61]). The Court found no such matter. It repeatedly observed that the proposed grounds did not identify what the primary judge had done wrong. A leave application from a judgment of the primary judge needed to show error by that judge, rather than simply restating objections to the Review Panels’ original assessments ([66], [85]).
That distinction mattered particularly for causation. The Court characterised whether a condition was caused by the accident as a question of fact ([67]). It referred to Rahman for the point that judicial review does not allow a court to re-evaluate evidence simply because a party disagrees with the decision-maker. A no-evidence argument may be relevant if there was no evidence capable of supporting the finding, but Khanna did not identify an arguable basis for that kind of challenge ([67]–[69]). The Court did not conduct a fresh medical assessment or decide which medical view was correct.
The procedural fairness grounds also did not disclose an arguable error. The Court noted that the Review Panels had provided the Evidence Review and invited comments, and that Khanna had supplied comments ([13], [77]). He did not identify evidence showing that material had been withheld or that the Panels had relied on undisclosed medical records in a procedurally unfair way ([77]). Nor did the Court find a requirement to record medical examinations by video or audio. It said there was no such requirement under the Act or implied by procedural fairness ([79]).
The Court also rejected the argument about diagnostic tests. It said the primary judge had correctly read paragraphs 1.234 and 1.235 of the Motor Accident Guidelines together. Paragraph 1.235 stated that diagnostic tests should not be ordered by a medical assessor for the purpose of rating impairment. The applicant therefore had not shown an arguable failure to comply with the Guidelines ([82]–[83]). The Court’s conclusion was not that every possible challenge to a medical assessment is unavailable, but that these grounds did not demonstrate legal error by the primary judge.
The judgment applied existing statutory provisions and established appellate principles; it did not announce a new legal test. Before this decision, s 101(2)(r) already required consideration of whether the matter at issue reached $100,000. Jabulani had explained that the focus is the realistic worth of the issue on appeal, rather than simply the amount originally claimed or the value of property in dispute. Gaynor and Emde were also cited for the need to show a realistic prospect of a financial change of at least $100,000 ([55]–[57]).
The judgment applies that framework to a medical-compensation dispute in which the applicant did not provide the material needed to connect a successful appeal with the monetary threshold. The practical point in this case is evidentiary: an assertion of substantial damages did not allow the Court to infer the required value without supporting material about impairment and the likely effect of success ([58]–[60]).
The leave test was likewise stated as an existing rule, with Be Financial and Secretary, Department of Family and Community Services v Smith cited ([61]). The Court applied it by asking whether the proposed appeal raised a principle, public-importance question, or reasonably clear injustice, rather than treating the application as an opportunity to reconsider all the medical evidence.
On judicial review, the Court reaffirmed the distinction between a legal error and disagreement about factual evaluation. It treated causation as a factual question and referred to Rahman in explaining that an evidentiary disagreement does not itself become an error of law ([67]–[68]). No change to that approach is identified in the judgment. The case instead illustrates how a proposed challenge to factual findings must be framed and supported if it is to raise a reviewable legal issue.
At [55], the Court said that the party relying on s 101(2)(r) bears the onus of satisfying the Court that the amount at issue meets the $100,000 threshold. In plain English, the applicant had to provide a basis for showing that a successful appeal could be worth at least that amount. Merely saying the claim exceeded the threshold was not enough.
At [59], the Court explained that it needed to undertake a process of inference about the likely financial impact of success. It said the applicant had not provided evidence or material permitting a favourable inference. Put simply, the Court could not calculate or reasonably infer the relevant financial effect from the information before it.
At [61], the Court stated the leave criteria: a proposed appeal would ordinarily need to raise an issue of principle, a question of public importance, or a reasonably clear injustice going beyond something merely arguable. This sets a filter for permission to appeal; a disagreement with the decision below, without more, does not meet the stated test.
At [67], the Court said that whether a medical condition was caused by the accident is a question of fact. At [68], it explained that where evidence is capable of supporting the decision-maker’s finding, disagreement with the evaluation does not establish an error of law for judicial review. The plain-English distinction is between challenging the legal limits of a decision and asking a court to choose a different medical conclusion.
At [85], the Court said that what had to be demonstrated was error by the primary judge. This is important to the procedural posture. The Court was not hearing a first-instance challenge to the Review Panels; it was considering whether the primary judge’s treatment of the judicial review claims disclosed a basis for leave to appeal.
The decision is most directly relevant where an applicant seeks to rely on the $100,000 threshold in s 101(2)(r) to say that leave is not needed. It shows that the threshold inquiry is about realistic financial impact, not simply the amount asserted as damages. Where the proposed appeal concerns medical impairment, the judgment highlights the importance of material capable of supporting an inference about the likely monetary consequences of success ([55]–[60]).
It is also relevant to applications for leave from a decision rejecting judicial review of administrative or statutory medical assessments. Where the proposed grounds repeat objections to the original decision-maker, the applicant still needs to identify an error in the primary judge’s decision ([66], [85]–[92]). The judgment treats carefully particularised grounds as materially different from general allegations such as “error of law” or a failure to comply with statutory requirements ([65]–[66]).
For causation disputes, the case is relevant where a party seeks judicial review of a medical decision-maker’s conclusion that an accident did or did not cause a condition. The judgment indicates that a challenge which amounts only to disagreement with the factual assessment is insufficient. The Court referred to the possibility of a no-evidence ground, but found none arguable on the material before it ([67]–[69]).
For procedural fairness allegations, the circumstances considered included provision of an Evidence Review, an invitation to comment, and the applicant’s submission of comments ([13]). The Court also addressed allegations about undisclosed materials and lack of recordings ([77], [79]). The decision does not establish that every review process with those features will be fair; it records why the particular grounds in this application did not show an arguable error.
The judgment is dated 6 June 2025 and the supplied text does not include decisions issued after it. It therefore does not establish how later courts have treated Khanna. No later application, approval, distinction or criticism can be responsibly identified from the judgment itself.
The decision does identify the authorities it applied or discussed. For the monetary threshold, it relied on Gaynor, Jabulani, and Emde ([55]–[57]). For leave criteria, it cited Be Financial and Secretary, Department of Family and Community Services v Smith ([61]). For judicial review of factual findings, it applied Rahman ([67]–[68]). Those citations show the doctrinal sources the Court considered relevant, but do not answer how subsequent courts may interpret Khanna.
The judgment mentions Minister for Immigration and Citizenship v Li when rejecting the applicant’s legal unreasonableness argument, and Dranichnikov when addressing whether a clearly articulated argument had been overlooked ([96]). It also distinguishes the applicant’s reliance on Amaca Pty Ltd v Ellis, noting that it arose in a different statutory context ([96]). Those references explain the Court’s reasoning in this case; the supplied judgment gives no later treatment of those authorities in Khanna.
The judgment does not determine how much evidence will be enough to establish the $100,000 threshold in other types of case. Its holding is that this applicant’s assertions and limited medical material did not permit the necessary inference. Different evidence or a different claimed right could present a different question under s 101(2)(r) ([58]–[60]).
The Court did not decide the medical merits of the causation disputes. It did not determine whether the accident in fact caused or exacerbated any of Khanna’s conditions. It held that no arguable judicial review error had been demonstrated on the material and grounds before it ([67]–[69], [98]). Nor did it set out a comprehensive test for when a medical causation finding might be legally unreasonable; the applicant’s contention was rejected as not reasonably arguable on this record (96).
The judgment’s statement that medical assessments need not be recorded addresses the particular allegation before the Court ([79]). It does not discuss every circumstance in which the manner of conducting or recording an assessment might matter, or whether a different statutory rule could apply in another setting.
Finally, the decision does not address the eventual merits of any compensation claim, quantify any impairment, or determine a final entitlement to damages. Its orders concern only leave to appeal and costs of that application ([99]). Questions about the medical evidence, the amount of any claim, or the application of different statutory provisions in another matter would require their own analysis.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Khanna v Insurance Australia Limited [2025] NSWCA 125
Hearing dates: 4 June 2025
Date of orders: 6 June 2025
Decision date: 06 June 2025
Before: Payne JA
Free JA
Decision: (1) Leave to appeal refused.
(2) Applicant to pay the respondent’s costs of the application for leave to appeal.
Catchwords: APPEALS — Leave to appeal — leave required — no issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable — leave refused
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) ss 58, 61, 63,
Supreme Court Act 1970 (NSW) ss 69, 101
Personal Injury Commission Rules 2021 r 128
Cases Cited: Amaca Pty Ltd v Ellis (2010) 240 CLR 111; [2010] HCA 5
BE Australia WD Pty Ltd (subject to a Deed of Company Arrangement) v Sutton (2011) 82 NSWLR 336; [2011] NSWCA 414
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26
Emde v State of New South Wales [2025] NSWCA 41
Gaynor v Attorney General of New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Rahman v Insurance Australia Ltd (2022) 101 MVR 149; [2022] NSWSC 1079
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
Category: Principal judgment
Parties: Sanjeev Khanna (Applicant)
Insurance Australia Limited (First Respondent)
Personal Injury Commission (Second Respondent)
President of the Personal Injury Commission of New South Wales (Third Respondent)
Representation: Counsel:
Self-represented (Applicant)
Jnana Gumbert (First Respondent)
Solicitors:
Moray & Agnew (First Respondent)
Crown Solicitors Office (Second and Third Respondents)
File Number(s): 2025/108515
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
Mr Khanna was sitting in his stationary car on 17 August 2016 when another car ran into him. The respondent is the third party insurer of the other car (“the Insurer”) and it accepted that the driver of the other car was at fault for the accident. A dispute arose between Mr Khanna and the Insurer under the Motor Accident Injuries Act 2017 (NSW) (“MAC Act”), in relation to injuries in four categories: (1) exacerbation of the applicant’s pre-existing diabetes condition; (2) exacerbation of the applicant’s pre-existing cardiac condition; (3) certain specific physical injuries; and (4) psychiatric conditions.
Following initial medical assessments, review was sought. The Review Panels appointed by the President of the Personal Injury Commission concluded that, apart from some physical injuries requiring minor temporary physiotherapy, none of the injuries were caused by the accident.
On 18 September 2023, Mr Khanna commenced proceedings in the Supreme Court seeking judicial review of the three Certificates issued by the Review Panels in relation to his alleged diabetes condition, cardiac condition and specific physical injuries. On 8 February 2024, Mr Khanna commenced a second set of proceedings seeking judicial review of the Certificate in relation to the applicant’s alleged psychiatric condition.
The primary judge concluded, in relation to both proceedings, that Mr Khanna had not demonstrated jurisdictional error by any of the Review Panels. Nor had he demonstrated any error of law on the face of the record. Mr Khanna sought leave to appeal against the primary judge’s decisions.
The issues before this Court were:
(i) whether leave to appeal is required on the basis that the appeal does not exceed the monetary limit of $100,000; and
(ii) whether leave to appeal should be granted.
The Court (Payne and Free JJA) held, refusing leave to appeal:
As to issue (i)
(1) The party seeking to appeal and seeking to rely on either provision in s 101(2)(r) of the Supreme Court Act bears the onus to satisfy the Court that the amount in issue meets the $100,000 threshold by demonstrating that there is a realistic prospect a successful appeal would improve the applicant’s entitlement by at least that amount. The applicant did not lead any evidence or refer to any material permitting such an inference favourable to the applicant to be drawn. Leave to appeal was required: at [54]-[60].
Supreme Court Act 1970 (NSW) s 101(2)(r); Gaynor v Attorney General of New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48; Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267, applied.
As to issue (ii)
(2) The applicant did not raise an issue of principle, a question of public importance, or seek to address a reasonably clear injustice going beyond something that is merely arguable. Mr Khanna failed to identify any error on the part of the primary judge. There was no procedural unfairness, failure to address Mr Khanna’s arguments or failure to comply with the Motor Accidents Medical Guidelines. Leave to appeal should be refused: at [61]-[97].
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206, Rahman v Insurance Australia Ltd (2022) 101 MVR 149; [2022] NSWSC 1079 applied.
The following summary of the background is drawn from the reasons of the primary judge, in circumstances where no complaint was made about the description of such matters by the primary judge and the underlying material was not put before this Court. Two separate proceedings were heard and determined together by the primary judge. Each proceeding was an application for judicial review made under s 69 of the Supreme Court Act 1970 (NSW). The primary judge found that no jurisdictional error or error of law on the face of the record was established.
On 17 August 2016, the applicant was sitting in his stationary car when another car ran into him. The respondent is the third party insurer of the other car (“the Insurer”). The Insurer accepted that the accident occurred and that the driver of the other car was at fault.
A dispute within the meaning of the Motor Accidents Compensation Act 1999 (NSW) (“MAC Act”) arose when the applicant claimed that the injuries which he suffered included injuries which were not the obvious consequences of the car crash. Ultimately, the disputed injuries were in four categories, namely:
exacerbation of the applicant’s pre-existing diabetes condition;
exacerbation of the applicant’s pre-existing cardiac condition;
specific physical injuries, namely chest, head, thoracic and lumbar spine and right shoulder and arm injuries; and
psychiatric conditions.
In the case of the alleged exacerbation of the applicant’s pre-existing diabetes condition, the medical assessment matters were referred to a Medical Assessor, Dr Carter, who certified a 2% permanent impairment attributable to the exacerbation of the diabetes condition.
In the case of the alleged exacerbation of the applicant’s pre-existing cardiac condition, the medical assessment matters were referred to Dr Herman. Dr Herman undertook an assessment and gave a Certificate on 6 September 2022 in which he concluded that the accident did not cause any exacerbation of the applicant’s cardiac condition. Dr Herman therefore certified that:
for the purposes of ss 58(1)(a) and (b) of the MAC Act, treatment for the applicant’s cardiac condition was not reasonable and necessary treatment which related to injuries caused by the motor accident; and
for the purposes of s 58(1)(d), an assessment of the degree of permanent impairment for the cardiac condition was not required.
In the case of the alleged specific physical injuries, namely chest, head, thoracic and lumbar spine and right shoulder and arm injuries, the medical assessment matters were referred to a Medical Assessor, Dr Cameron, who concluded that none of the claimed injuries were caused by the accident other than some soft tissue injuries. Dr Cameron certified that:
“All the injuries referred to me for assessment have been assessed and determined not caused by the motor accident.
An assessment of the degree of permanent impairment of these injuries is therefore not required.”
Each of the Certificates was the subject of an application for review under s 63(1) of the MAC Act. The Insurer applied for a review of the Certificate issued by Dr Carter to the extent that Dr Carter concluded that some exacerbation of the diabetes condition was caused by the accident for which subsequent medication was reasonable and necessary. The applicant applied for a review of all the Certificates. The President of the Personal Injury Commission decided to refer all the Certificates to Review Panels. The President constituted a different Review Panel for each of the four categories of disputed injuries. As required by s 63(3), each Review Panel was constituted by three persons chosen by the President, namely two medical assessors and one legal member of the Commission. All four Review Panels had the same member of the Commission. There was some overlap in the medical membership of the three Review Panels for the applicant’s alleged diabetes condition, cardiac condition and physical injuries. The Review Panel for the applicant’s alleged psychiatric condition had completely different medical membership.
The Review Panels each conducted a fresh assessment of all the matters previously assessed by the individual medical assessors: s 63(3A) of the MAC Act.
The three Review Panels tasked with assessing the applicant’s alleged physical injuries determined that they would undertake a single physical re-examination of the applicant. They selected those of their members who they considered had the specific expertise in the medical conditions which were the subject of the disputes. On 19 April 2023, the applicant was re-examined by the selected members.
In May 2023, the Review Panels adopted a procedure to ensure that the applicant and the Insurer had an opportunity to identify and consider the evidence which each Review Panel considered relevant to its assessment. The Review Panels prepared a document entitled “Evidence Review” which set out in detail all the evidence which the Review Panels would consider in undertaking the fresh assessments. It is an extensive document. It runs to 59 pages with detailed references to the applicant’s medical records and history. On 15 May 2023 the Review Panels provided the Evidence Review to the applicant and the Insurer. Each party was directed to provide comments, including additional information, which that party wanted the Review Panels to consider. The applicant subsequently provided 14 pages of comments to the Review Panels. The Review Panels then conducted their assessments.
On 22 June 2023, the Review Panel which assessed the applicant’s diabetes condition issued a Certificate. The Panel found that the exacerbation of the applicant’s diabetes condition was not caused by the motor accident on 17 August 2016. The Review Panel revoked the Certificate given by Dr Carter on 3 December 2021. In its stead, the Review Panel certified that none of the disputed diabetes treatment relates to injuries caused by the accident. The Review Panel’s Certificate was accompanied by a 27 page Statement of Reasons. The Review Panel analysed the evidence and concluded that “the changes in [the applicant’s] diabetes were no more than the expected progression with time, of his underlying pre-existing condition”. Specific evidence is referred to and explained, including the applicant’s HbA1c levels as recorded periodically in the applicant’s primary health records between February 2010 and October 2022. Annexure A to the Review Panel’s Statement of Reasons is the 59 page Evidence Review document which the Review Panel had previously provided to the parties and about which the parties’ comments were sought. Annexure B is a 7 page summary of the examination of the applicant which occurred on 19 April 2023.
[63] The “Further Further Amended -3- Summons” filed on 27 December 2023 is the reference point against which the Plaintiff’s case is to be addressed. It is the pinnacle of the incremental evolution of the Plaintiff’s case as reflected in the documents which preceded it. The Plaintiff’s subsequent documents refer back to it.
[64] The “Further Further Amended -3- Summons” is prolix. It attaches 7 pages of evidence in the form of (mostly) medical records. It is not possible to identify within the 37 pages of the document specific errors said to have been made by any of the Review Panels, although a number of themes are apparent. The themes are summarised in the next section of this judgment.
[68] Over the Insurer’s objection as to relevance, I admitted into evidence all the Plaintiff’s Affidavits and Witness Statements. I have had regard to these documents to the extent that they have evidentiary content and otherwise read them as submissions. Given the volume of the material it is not practicably possible to do otherwise.
On 8 February 2024, the applicant commenced a second set of proceedings against the Insurer, the President of the Commission and the Review Panel which issued the Certificate in relation to the applicant’s alleged psychiatric condition. These are proceedings 2024/80728. They were conducted together with proceedings 2023/305474. The President and the Review Panels filed submitting appearances.
The primary judge found:
[80] The Summons does not identify any basis for a cause of action.
[81] In addition to the Summons in proceedings 2024/80728, the Plaintiff has filed a document called “Response to Defendant Submission dated 8 April 2024”. This is a lengthy document, it does not identify any error of law in the Certificate of the relevant Review Panel. On the contrary at paragraph [3](a)(d) the Plaintiff states:
“The defendant asserts that the Summons fails to disclose any judicially reviewable error of law in the decision under review. However, it's important to recognize that the absence of a specific error of law in the Summons doesn't negate the possibility of legitimate concerns regarding the decision-making process.”
[82] That statement seems accurately to reflect the Plaintiff’s material for this part of his case.
In fairness to the unrepresented applicant, the primary judge approached the case by reviewing the entirety of the applicant’s material, without undue regard to legal form or any procedural restriction which might otherwise apply to the presentation of the applicant’s case. His Honour reviewed the material in both proceedings 2023/305474 and 2024/80728. The primary judge identified 14 themes of the applicant’s complaint, which the applicant contended entitled him to relief from the Court.
The first theme arose from numerous complaints which the applicant made about the conduct and decisions of the original medical assessors (not the Review Panels). The applicant repeatedly and at length addressed a number of alleged deficiencies which he contended were apparent in the work of the four medical assessors. As the primary judge correctly explained:
[95] Nothing done by the original assessors is capable of constituting reviewable error by the Review Panels.
The second theme was the applicant’s assertions that there was a failure to ensure particular medical assessor expertise on the Review Panels. The primary judge recorded that only one specific matter was identified to support this contention, namely that the Review Panel which assessed the applicant’s cardiac condition included a doctor who was not a cardiologist. There did not appear to be any dispute that one of the two doctors had appropriate cardiac expertise.
As the primary judge correctly explained (having regard to s 63(3) of the Act):
[98] The composition for each Review Panel was a matter for the President of the Commission. It was a matter for the President’s expertise whether, having selected one cardiologist, it was necessary for the other medical assessor also to be a cardiologist having regard to the specific issues to be considered by the specific Review Panel. There is nothing in the material which provides a basis to gainsay the decision made by the President. This part of the Plaintiff’s complaint appears to proceed from lay assumptions made by the Plaintiff without the support of evidence or reasoning. It cannot be accepted.
The third theme was the applicant’s contention that the Review Panels should not have conducted a physical examination. The applicant asserted that rule 128(2) of the Personal Injury Commission Rules 2021 “dictates that the panel’s decision should rely exclusively on the written application”. The applicant submitted that there was a failure to undertake the assessments in accordance with the rules because the Review Panels also relied upon physical examination.
The primary judge correctly concluded:
[100] This argument must also be rejected. It is based on a misreading of rule 128(2) and it does not take into account the broader statutory context for review of a medical assessment …
[101] Whilst rule 128(2) provides that a Review Panel may determine a review solely on the papers, it does not oblige the Review Panel to do so. Rule 128(3) makes clear that there may also be “medical examinations” by the Review Panel as do other parts of the statutory regime referred to earlier in this judgment.
The applicant also made a number of complaints about the way the physical examination was carried out on 19 April 2023. The primary judge described them at [102] as being:
one of the medical assessors who was a member of two of the Review Panels did not attend the examination;
“endocrine was not assessed” and the pancreas was not assessed;
one of the two medical assessors who conducted the examination did not have qualifications in endocrinology;
there are no minutes or transcripts of the examination – that is said to be a “transparency” issue;
there were no cameras in the examination room – another transparency issue;
one of the medical assessors was “taking naps and attending many telephone calls”;
one medical assessor determined the applicant’s condition “solely based on blood pressure readings and a stethoscope examination”; and
the examination revealed the applicant’s inability to walk straight, which the Review Panels “neglected to acknowledge”.
The primary judge concluded about these eight complaints as follows:
[104] It will be recalled that each Review Panel was to determine its own procedures (rule 128(1)) and to inform itself as it thought appropriate (rule 128(5)). Section 63(3B) of the MAC Act specifically provided that not all members of a Review Panel need conduct any re-examination. It follows that complaints (1), (3) and (6) are misconceived. Complaint (2) is premised on the assumption that the specific medical matters referred to the relevant Review Panel had to be the subject of physical examination yet there is no reason given for that assumption let alone evidence to make good the assumption. These complaints are also inconsistent with the contention that no medical examination should have been conducted at all.
[105] Complaints (4) and (5) relating to “transparency” reveal no error, especially where the Review Panels are to conduct their proceedings with as little formality as possible. In any event, the Review Panels have included a summary of the examination as Annexure B to the Statements of Reasons which means (4) is factually wrong. There is no reason given, let alone evidence identified to support complaint (7) about the way one medical assessor performed his role at the examination. Ill-defined and unexplained, complaint (8) does not rise above the level of assertion.
[106] Although not clear, there may be a further complaint that the final determination of the reviews was made at the time the physical examination was conducted (i.e, on 19 April 2023), and hence the final determination was not made by the whole of each Review Panel. If this is a further complaint it must be rejected. It is wholly unsupported by evidence. The Statements of Reasons given by each Review Panel contain evidence of extensive inquiry and consideration by the Review Panel which ranged far beyond the physical examination.
[107] The Plaintiff has not demonstrated any deficiency in the manner in which the physical examination was conducted on 19 April 2023, let alone any deficiency which is capable of constituting reviewable error.
[108] I have not been able to identify any complaint about the re-examination on 20 September 2023 which was conducted by the medical members of the Review Panel which assessed the Plaintiff’s psychiatric conditions.
The fourth theme was the applicant complained of “bad faith”, want of “procedural fairness”, “bias” and “prejudice” by the Review Panels. As for the specifics of this theme, the applicant asserted that the Review Panels did not “report” symptoms which the applicant considered to be relevant. He submitted that that failure is demonstrative of a bias in favour of the Insurer. The applicant did not identify any evidence to support this theme of complaint which was rejected by the primary judge as “baseless”.
The fifth theme was that the medical assessment was not conducted in accordance with the Motor Accident Guidelines and the AMA4 Guides. The primary judge said of this complaint:
[119] The Motor Accident Guidelines and the AMA4 Guides are lengthy, detailed and highly technical documents. It is not possible for the Court to consider an allegation of non-compliance with the Guidelines where the allegation is made at large. It is only possible to consider non-compliance to the extent that the Plaintiff identifies a specific departure.
The one specific departure identified by the applicant was that the Review Panels allegedly failed to comply with paragraph 1.234 of the Motor Accident Guidelines. The applicant’s argument was that compliance with paragraph 1.234 required the Review Panels to order each of the diagnostic tests listed in the paragraph. The Review Panels allegedly failed to comply with the Guidelines as they did not order any diagnostic tests for the applicant.
The primary judge rejected this submission. As his Honour correctly found:
[122] …The proper construction of paragraph 1.234 is made clear by paragraph 1.235 which provides:
“1.235 Diagnostic tests should not be ordered by the medical assessor for the purpose of rating impairment. This is in keeping with the approach taken elsewhere in these Guidelines.”
The primary judge concluded that the applicant did not demonstrate any failure by the Review Panels to comply with the Guidelines.
The sixth theme was the applicant’s assertion that his medical condition before the accident was irrelevant to his current need for treatment and impairment compensation. He submitted that the Review Panels inappropriately took his pre-accident condition into account when assessing the cause of his injuries. As the primary judge pointed out, the applicant’s case was that the car accident “exacerbated” his diabetes and cardiac condition and therefore the Review Panels needed to understand the conditions before the accident in order to assess the applicant’s claims. The primary judge concluded:
[129] … The Plaintiff has not put forward any argument to undermine that reasoning and none is otherwise apparent. This complaint is to be rejected.
…
[132] The Review Panels took into account the Plaintiff’s medical history, as demonstrated by the Statements of Reasons, the recitation of events in the Evidence Review (Annexure A) and, indeed, by the Plaintiff’s inconsistent contention that they should not have. The Plaintiff has not identified the “crucial evidence” about his pre-accident medical history which the Review Panels failed to take into account. No error is shown.
[133] … In order to consider this complaint, at the very least the Plaintiff would need to identify with specificity each individual matter which he says the Review Panels did not consider. The Plaintiff would also have to explain why, medically, each such matter was relevant to the specific issue being considered by the relevant Review Panel and the evidence which demonstrates that medical relevance. The Plaintiff would also have to demonstrate that the Review Panel did not consider each such matter.
[134] Without particulars, the Court is not able to uphold this complaint. Generally, the Plaintiff makes this complaint without identifying the particular matter in question. Without particulars, the Court is not able to uphold this complaint.
The primary judge was able to identify four specific matters which the applicant may be saying were not considered by the Review Panel: (1) the insertion of three new stents which the Plaintiff asserts was necessary because a pre-existing stent was damaged in the accident; (2) “cardiothoracic injury”; (3) “hypertension”; and (4) post-accident events and procedures “such as” catheterisation and angioplasty. After considering the relevant evidence in detail, his Honour concluded that “[o]verall, the Plaintiff has not demonstrated that the Review Panels failed to take into account any relevant matter”.
The eighth theme was the applicant’s assertion that the relevant Review Panel was wrong to conclude that the accident in August 2016 did not exacerbate his pre-existing cardiac condition. Four medical documents were specifically identified by the applicant, and referred to again in this Court.
The first document was a letter written by Professor Kovoor on 19 September 2016. Professor Kovoor is a cardiologist who examined the applicant about a month after the accident. In the letter, Professor Kovoor described the onset of the applicant’s cardiac condition in 2009, including the insertion of a stent in 2009. Professor Kovoor referred to the motor accident and stated:
“Motor vehicle accident with trauma to anterior aspect of chest, requires transthoracic echocardiogram.
…
He unfortunately had a motor vehicle accident on 17 August 2016 while he was stationary. Another car hit his car from behind and resulted in him having trauma to the anterior aspect of his chest. He has been getting recurrent chest pain since then and has had haematemesis two days later. I understand that he went to Blacktown Hospital where ECG was normal. ECG was done by you also for further episodes of chest pain was normal.”
“… [He] presented for an elective angiogram in the context of typical chest pain and known ischaemic heart disease. The procedure was successful, the previous LAD stent was patent and a stenosed RCA stent was re-stented, there were no complications to the procedure.”
“Catheterisation (2017). There was a stenosis in the distal right coronary artery which was treated with drug eluting balloon angioplasty. There was a stenosis in the proximal right coronary artery which was treated with a 3 x 16 mm Promus Premier stent and drug eluting balloon angioplasty.”
“[The applicant] had a coronary angiogram at Westmead Hospital on 01 March 2022. Access from the right radial artery failed. The procedure was done from the right femoral artery. He had chronic total occlusion of the proximal aspect of the dominant right coronary artery. There was minimal collateral filling distally and it was not suitable for grafting. The lesions were also not suitable for stenting. There was only minor disease of the left circumflex artery. The left internal mammary artery was not selectively injected because it was reported to be patent on the CT coronary angiogram. We have asked him to stop clopidogrel but continue with aspirin.
The best option at this stage would be optimising his medical therapy. Imdur 60mg daily could be added. A GTN patch also could be added subsequently if angina and exertional dyspnoea are not adequately controlled.”
The primary judge found that the relevant Statement of Reasons and the Evidence Review show that the Review Panel gave full consideration to the matters referred to in the four documents relied upon by the applicant. His Honour found that there was no basis to conclude that the Review Panel’s conclusion on this issue was relevantly unreasonable. Bereft of context, these four documents do not establish any arguable error by the Review Panels.
The primary judge concluded:
[150] These documents do not demonstrate reviewable error by the Review Panel which considered the Plaintiff’s cardiac condition.
[151] In any event, whether the exacerbation of the Plaintiff’s cardiac condition was caused by the accident is a question of fact. This complaint is no more than a contention that the Review Panel made an error of fact. For that reason alone it is to be rejected.
The ninth theme was the applicant’s assertion that he currently suffers from a number of severe medical conditions, including conditions within the four categories assessed by the Review Panels. He argued that his current poor medical state is demonstrated by the numerous medications, tests, treatments, hospital admissions and procedures he has undergone since the accident, including open heart surgery in 2019. Following the open-heart surgery, the applicant experienced a large pericardial effusion. The applicant’s wife has given a lengthy description of the applicant’s emotional, physical, cognitive and behavioural symptoms of depression and anxiety. The applicant said that there was extensive medical evidence which demonstrated that he is currently 100% whole person impaired.
The primary judge concluded about this theme as follows:
[154] This argument does not advance the Plaintiff’s case given the findings by the Review Panels that none of the Plaintiff’s medical conditions was caused or exacerbated by the accident. Even if the Plaintiff is 100% impaired the insurer is only concerned with medical conditions called [sic] by the accident. No reviewable error is identified.
The tenth theme was the applicant’s claim that the Insurer had not explained why, let alone proved that, the applicant’s current medical conditions were not caused by the accident. The applicant contended that he was entitled to relief for that reason alone.
The primary judge found, at [157], that the insurer is not required to prove non-causation and that the complaint must be rejected.
The eleventh theme was that the decisions of the Review Panels were “incomprehensible” and, hence, invalid. The primary judge concluded about this complaint:
[160] Each of the Statements of Reasons (including the Evidence Review in Annexure A) is in evidence before the Court. Each satisfies the requirement for adequate reasons. The path of reasoning is clearly set out. The Plaintiff may have identified what may fairly be described as typographical errors. His contention that the Statements of Reasons are “incomprehensible” is to be rejected.
The twelfth theme was that there was undue delay by the Review Panels. The primary judge found (at [163]) that this was “not a fair criticism. The Plaintiff lodged his application for review on 1 October 2022. Thereafter the Review Panels had to consider extensive materials, summarised in the 59 page Evidence Summary and exceeding 5,000 pages. The Review Panels established a procedure, undertook that procedure, made their decisions, issued their Certificates and gave comprehensive reasons. The Review Panels have conducted their task with expedition”.
The thirteenth theme was that there had been a delay in preparing the joint Court Book before the primary judge. Eventually, two separate Court books were filed, one by each party. His Honour concluded on this issue:
[166] The Plaintiff said he was prejudiced by the Insurer’s Court Book conduct. He referred to inadequate preparation time, increased legal costs, disruption of legal strategy and “procedural fairness”. No specifics were given. The Plaintiff declined the offer of an adjournment for the purpose of curing any prejudice. At the conclusion of the hearing the Plaintiff was granted leave to file further submissions within 14 days, which was twice as long as he asked for. The opportunity to file further submissions provided the Plaintiff with the means of addressing prejudice actually caused by having two Court Books (if any). Whilst the two Court Books caused some confusion at the hearing, ultimately there was no apparent prejudice. There is no basis for the Plaintiff’s complaint about the Insurer’s Court Book conduct.
The fourteenth theme was the applicant’s submission that there was procedural unfairness caused by the Insurer’s Affidavits. The applicant repeatedly complained about the manner in which the Affidavits were affirmed and witnessed. The primary judge rejected the complaint and found that there “was nothing in this complaint which can in any way affect the outcome of the case”.
The primary judge found:
[168] Having considered all of the Plaintiff’s complaints about the Certificates issued by the Review Panels, the Plaintiff has not demonstrated jurisdictional error by any of the Review Panels. Nor has he demonstrated any error of law on the face of the record.
Section 101(2)(r) of the Supreme Court Act provides that leave to appeal to the Court of Appeal is required from a final judgment or order in proceedings of the Supreme Court, other than an appeal that:
involves a matter at issue amounting to or of the value of $100,000 or more (s 101(2)(r)(i)), or
involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more (s 101(2)(r)(ii)).
The party seeking to appeal and seeking to rely on either of these provisions bears the onus to satisfy the Court that the amount in issue meets the $100,000 threshold by demonstrating that a successful appeal would improve its entitlement by at least that amount: Gaynor v Attorney General of New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48 at [16] (Bell P, Basten and Leeming JJA agreeing). In BE Australia WD Pty Ltd (subject to a Deed of Company Arrangement) v Sutton (2011) 82 NSWLR 336; [2011] NSWCA 414, Campbell JA said that it was:
[150] … necessary for a litigant who seeks to demonstrate that s 101(2)(r) does not deprive them of an appeal as of right to demonstrate that they have a realistic prospect on appeal of lessening the prejudice that they suffer by reason of the order appealed against to an extent greater than $100,000.
(1) Section 101(2)(r)(i) involves ‘a matter at issue’ amounting to or to the value of $100,000 or more.
(2) Under s 101(2)(r)(i) the determinative factor is not the amount of the judgment, nor the amount of the original claim, but the value of the matter at issue in the appeal: Dunn v Ross Lamb Motors [1978] 1 NSWLR 26 at 28; Jensen v Ray [2011] NSWCA 247 at [7] per Brereton J with whom Campbell JA and Sackville AJA agreed; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [13] per Basten JA with whom Tobias AJA agreed.
(3) The phrase ‘at issue’ must be construed as meaning truly at issue or, inversely, not unrealistically at issue: Gillard v Hunter Wire Products Pty Ltd (No 2) [2001] NSWCA 450 at [11] per Priestley JA and Sperling J; Jensen v Ray at [11].
(4) A ‘matter at issue’ involves a realistic prospect that the appeal would change the wealth of the appealing party by more than $100,000, it being the realistic worth of the claim that must exceed $100,000, rather than the property the subject of the claim: Pegela Pty Ltd v Oates [2010] NSWCA 186, Young JA, with whom Allsop P and McColl JA agreed; Jensen v Ray at [12].
(5) There are material differences between the requirements under s 101(2)(r) and those under the pre-1984 versions of the Judiciary Act 1903 (Cth) considered by the High Court in cases such as Moller v Roy (1975) 132 CLR 622 at 625 (Barwick CJ): see Blackmore v Browne; Kara Kar Holdings Pty Ltd v Blackmore [2011] NSWCA 114 at [31] ‑ [32] per Campbell JA and Jensen v Ray at [10].
(6) Care must be exercised in relying for the purposes of 101(2)(r) of the Supreme Court Act upon authorities under the pre-1984 s 35 of the Judiciary Act, as the language of the statutes is quite different: Peter Hansen v Slattery Transport (NSW) Pty Ltd [2011] NSWCA 193 at [2] per Basten JA; Jensen v Ray at [10]; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das at [13].
(7) Section 101(2)(r)(ii) involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more. Illustrations of the sort of cases caught by that provision are a judgment for an injunction, for specific performance of a contract, for administration of a trust, for a declaration of right, or for the issue of a prerogative writ in which a judgment is not given for a sum or matter at issue between the parties but nevertheless the issue between the parties ‑ described as a claim, statement or question ‑ may be capable of an estimate of value: Nanschild v Pratt [2011] NSWCA 85 at [27].
(8) Notwithstanding the difference in the language used in subsections (i) and (ii) of s 101(2)(r), the question whether an appeal lies as of right turns on whether the right claimed by the appellant, but denied by the judgment, prejudices the appellant to the amount of $100,000: Nanschild v Pratt at [28].
[32] … As was said in Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267 at [80(4)], a “‘matter at issue’ involves a realistic prospect that the appeal would change the wealth of the appealing party by more than $100,000”. See, to similar effect, Gaynor v Attorney General (NSW) (2020) 102 NSWLR 123; [2020] NSWCA 48 at [16] (Bell P, Basten and Leeming JJA agreeing), quoting BE Australia WD Pty Ltd (subject to a deed of company arrangement) v Sutton (2011) 82 NSWLR 336; [2011] NSWCA 414 at [150] (Campbell JA): the appellant must demonstrate “a realistic prospect on appeal of lessening the prejudice that they suffer by reason of the order appealed against to an extent greater than $100,000”.
This in many respects is an unusual case in that the self-represented applicant has led no evidence, beyond assertion, of the possible value of his claim. None of the medical evidence below (with the exception of the four letters described at [39]-[42] above) or the reasons of the Review Panels was put before us. Those letters lack context and, by themselves, establish nothing. No medical reports were put before us by the applicant containing opinions about the correct degree of permanent impairment suffered by the applicant from the accident. There was no identification by the applicant at all of any path of reasoning permitting the conclusion that the correct degree of permanent impairment suffered by the applicant was different from that found by the Review Panels and that he would be entitled to over $100,000 if his claim succeeded following a proper assessment.
Although the applicant asserted in submissions that he had suffered over $100,000 in damages, he accepted in written and oral submissions that he required leave to appeal. He was correct to do so. In addressing whether the “matter at issue” involves a “realistic prospect that the appeal would change the wealth of the appealing party by more than $100,000”, a process of inference must be undertaken. Even assuming that all of the applicant's complaints were correct, the Court cannot draw the necessary inference unless it is able to assess that success in the appeal would give rise to the reasonable prospect of an impact of $100,000 or more on the applicant’s monetary position. The applicant has not led any evidence or referred to any material permitting such an inference favourable to the applicant to be drawn.
The applicant has not demonstrated a realistic prospect on appeal of lessening the prejudice that he suffers by reason of the order appealed against to an extent greater than $100,000. Accordingly, leave to appeal is required.
The first complaint made by the appellant was error of law. It was alleged that the “trial judge misapplied legal principles and failed to properly interpret the Motor Accidents Compensation Act 1999 (NSW), specifically ss 58, 61, and 63 (see [Judgment, Paragraph 168])”.
The relevant paragraph of the primary judgment is quoted above at [53].
Under the heading “Grounds for seeking leave to appeal”, the applicant alleged several “errors of law”:
- (Supreme Court Act 1970 (NSW), Section 69; Motor Accidents Compensation Act 1999 (NSW), Sections 58, 61, 63)
3.1 The trial judge erred in law by failing to apply the correct legal test for procedural fairness and medical assessments, leading to a miscarriage of justice.
- Specific errors include:
4.1 ERROR IN LAW: Failure to properly interpret Section 61(1) of the Motor Accidents Compensation Act 1999 (NSW) – The court accepted the Review Panel’s findings without ensuring that it adhered to statutory requirements (see [Judgment, Paragraph 168]).
4.2 ERROR IN LAW: Misapplication of procedural fairness principles – The applicant was denied an opportunity to challenge the evidence used by medical assessors, breaching fundamental legal principles (see [Judgment, Paragraph 167]).
4.3 ERROR IN LAW: Failure to recognize jurisdictional error – The Review Panel’s failure to disclose material evidence constituted a jurisdictional error that was overlooked by the trial judge (see [Judgment, Paragraph 166]).
Simply to assert that there has been an “error of law” in this vague and unparticularised manner is not an appropriate way of seeking leave to appeal in this Court. The applicant has failed, even arguably, to identify any possible error on the part of the primary judge.
To the extent any allegation of error of law may be discerned from all of the applicant’s material, it is in relation to the Review Panel’s finding of a lack of causal link between the accident and various of the applicant’s claimed injuries. A finding that a particular medical condition was caused or not caused by the motor accident is a finding of fact. A party who wants to challenge a finding of fact by way of judicial review may seek to demonstrate that there was no evidence to support the finding such that the finding was not open to the decision maker: Rahman v Insurance Australia Ltd (2022) 101 MVR 149; [2022] NSWSC 1079 at [6]-[7] (Basten JA).
The applicant has not shown any arguable basis for impugning the findings of fact on causation on this basis. If there is some evidence capable of supporting the decision maker’s finding of fact, there is no error of law for the purposes of judicial review. As Basten JA said in Rahman:
[30] The assessor identified, summarised and evaluated such evidence of psychiatric conditions as was presented to him, but found an absence of evidence of a causal link. On the contrary, there was affirmative evidence which was inconsistent with such a causal connection. To say that the finding in its terms was “not open” was to disagree with the evaluation undertaken by the assessor as to what the other psychiatric opinions reflected. That exercise is not available by way of judicial review because it does not demonstrate anything approaching an error of law.
The applicant did not advance any intelligible argument that the primary judge fell into error in the way he dealt with the issue of causation.
The second complaint concerned alleged procedural fairness violations. The applicant stated that the “Review Panel was improperly constituted and failed to ensure an impartial and fair review of the medical assessment (see [Judgment, Paragraph 167])”.
The relevant paragraph in the primary judgment provides:
[167] The second matter which the Plaintiff submitted caused procedural unfairness was the Insurer’s Affidavits. The Plaintiff repeatedly complained about the manner in which the Affidavits were affirmed and witnessed. There were two such Affidavits, each affirmed by the Insurer’s solicitor. The first, dated 12 April 2024, was the vehicle through which a large number of uncontroversial documents were identified and adduced into evidence. The deponent provided no commentary about the documents other than references to appropriate context where the identity and/or provenance of a particular document was not otherwise apparent. The second one-page Affidavit, dated 24 May 2024, corrected three documents addressed in the first Affidavit. Both Affidavits were apparently regular on their face, both as to affirmation by the deponent and witnessing by the witness. Nothing submitted by the Plaintiff indicated otherwise. The deponent of these affidavits, the Insurer’s solicitor, was present in Court throughout the hearing. There was nothing in this complaint which can in any way affect the outcome of the case.
The cross-reference to this paragraph of the reasons of the primary judge is incongruous. That paragraph appears in a section of the reasons dealing with complaints about procedural fairness in the Supreme Court proceedings themselves, whereas the stated ground in the summons seeking leave to appeal is directed to an alleged unfairness in the way in which the Review Panels went about their task.
The applicant has not demonstrated arguable error on the part of the primary judge in either respect. In relation to the composition of the Review Panels, as we have already concluded above at [25], the primary judge was correct to reject the applicant’s complaint.
Nor is there any arguable basis demonstrated for any contention that the Supreme Court proceedings themselves were conducted in a procedurally unfair way. Before the primary judge the applicant prepared an extensive array of documentation in which he set out his complaints about the Review Panels. The documentation included originating processes, affidavits and written submissions. The applicant made oral submissions throughout the two-day hearing before the primary judge. Pursuant to a grant of leave by the primary judge, the applicant served further submissions after the hearing which loosely addressed the text of the reasons given by the Review Panel. There was no denial of procedural fairness.
The third complaint in the summons involves similar difficulties. The applicant complained of a “failure to disclose evidence”. The applicant stated that the “applicant was not provided with full access to medical records and reports relied upon by the Review Panel, amounting to a breach of natural justice (see [Judgment, Paragraph 166])”.
The primary judgment at [166] is set out above at [51].
Again, there is an incongruity between the stated complaint (which relates to a breach of procedural fairness by the Review Panels) and the cross-reference to the reasons of the primary judge (which relates to an apparent complaint of procedural unfairness in the conduct of the Supreme Court proceedings). As to the former, beyond the mere assertion in the summons, the applicant has not identified any arguable basis for a contention that the Review Panels acted in a procedurally unfair way by relying upon medical records and reports without providing the applicant with such material. No evidence in support of that contention has been identified. This is in circumstances where, as the primary judge explained at [19]-[27], the Review Panels followed an apparently detailed process of consultation with the applicant and the Insurer.
As to the complaint referred to by the primary judge at [166], if the applicant had any difficulty in navigating the Court Book, it would have been appropriate to accept the offered adjournment.
The fourth complaint was that no video or audio recordings were maintained during “critical medical assessments”, which was said to constitute a violation of procedural transparency and fairness. The primary judge correctly concluded at [105] that there was no error by the Review Panels in this regard. There is no requirement under the Act, and no implied requirement as a matter of procedural fairness, to record medical assessments.
[122] … The proper construction of paragraph 1.234 is made clear by paragraph 1.235 which provides:
“1.235 Diagnostic tests should not be ordered by the medical assessor for the purpose of rating impairment. This is in keeping with the approach taken elsewhere in these Guidelines.”
Turning then to the draft notice of appeal, this may be addressed by reference to the same themes as adopted by the primary judge.
As to draft appeal ground 1.6, this was simply a repetition of the sixth ground of the application for leave to appeal. As we have explained, this is an application for leave to appeal from the decision of the primary judge. It is not an occasion to merely rehash complaints about the original medical assessors or the Review Panels, without regard to the reasons of the primary judge. What must be demonstrated is error on the part of the primary judge. This ground does not allege any such error.
Draft appeal ground 2.1 was prefatory and does not in terms allege error by anyone.
As to draft appeal grounds 3.1-3.5, each was addressed to alleged errors made by the Review Panels, largely those addressed in theme 3 by the primary judge. Even if leave were granted, it is inevitable that these grounds must be dismissed.
As to draft appeal grounds 4.1-4.5, each was addressed to alleged errors made by the Review Panels, being those addressed at themes 2, 5 and 8 by the primary judge. Only one of those grounds, 4.3, alleged an error by the primary judge. We are comfortably satisfied that the applicant’s argument advanced by ground 4.3 about the need for a second cardiologist is untenable.
As to draft appeal grounds 5.1-5.5 and 6.1-6.5, each was addressed to alleged errors made by the Review Panels in the way in which they undertook the medical assessment exercise. Even if leave were granted it is inevitable that these grounds must be dismissed. These grounds did not allege directly, or serve to identify indirectly, any error by the primary judge.
As to draft appeal grounds 7.1-7.6, each was addressed to alleged errors in the composition of the Review Panels. For the reasons already set out above, no arguable error of law in this regard has been identified. The same applies in relation to draft grounds 9.1-9.4. Draft appeal ground 9.5 concerned the absence of recordings, which we have already addressed.
Draft appeal grounds 7.7 and 7.8 correlated to the arguments raised in the summons about the lack of access to medical records and diagnostic tests, and the lack of video or audio recordings during the assessment process. We have already explained why no arguable error on the part of the primary judge was disclosed in respect of those matters. Draft appeal ground 7.9 alleged a failure on the part of the Review Panel to consider or apply medical test results, leading to an incorrect determination of impairment. The cross-reference in support of this contention, to the primary judgment at [120], concerned a different topic namely alleged failure to comply with paragraph 1.234 of the Guidelines. There was otherwise nothing beyond mere assertion in this ground, and the applicant has not demonstrated any arguable basis that the primary judge erred by failing to find a relevant legal error on the part of the Review Panel.
In the White Folder in this Court, the applicant sought to include an unfiled affidavit of his dated 7 April 2025 and a purported replacement draft notice of appeal. That purported replacement draft notice of appeal was not properly filed in this Court simply by placing it in the White Folder. Nevertheless, in the absence of objection we have considered it. Although framed as raising for consideration alleged errors of law made by the primary judge, those alleged errors are nowhere identified with sufficient particularity to be meaningful. The only references to the judgement of the primary judge are to:
paragraphs [120], [122] (which address Motor Accidents Medical Guidelines 1.234 and 1.235),;
[164] (the joint court book issue);
[137]-[139] (assertions made by the applicant about medical matters clearly beyond any demonstrated expertise);
[166], [167] and [168] which we have set out above; and
[172]-[179] (which contain a series of complaints made by the applicant without reference to any apparent medical expertise about factual matters and medical judgments made by medical professionals).
None of these references by the applicant are sufficient to identify any arguable error by the primary judge. The remainder of the replacement draft notice of appeal repeated essentially the same arguments as made in the summons and in the draft notice of appeal which we have addressed above.
On 27 May, the applicant lodged written submissions electronically. On 3 June 2025, the applicant emailed a “Reply to First Respondent’s Bundle of Authorities” to the Researcher to the Court of Appeal. On 4 June 2025, at the hearing, the applicant handed up a written opening statement and made brief oral submissions. We have taken all of these submissions into account.
As to the principal written submissions dated 27 May 2025, we make the following observations (adopting the same numbering as the applicant has used):
As we have found, leave to appeal is required by applicant. We note that Mr Khanna, in oral submissions, accepted as much.
We note the applicant’s complaint about procedural delays by the Insurer, however, no prejudice has been asserted as a result and we are not satisfied that any procedural delays affected the outcome of this matter.
We reject the submission that the primary judge erred in his Honour’s consideration of the Motor Accident Guidelines. In relation to the assertions about paragraphs 1.234-1.235 of the Motor Accident Guidelines and the failure to appoint a qualified endocrinologist as part of the medical review process as affecting the outcome of the Review Panels, his Honour’s conclusions at [104] of the primary judgment were clearly correct. The applicant has not demonstrated an issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable.
The applicant’s reference to the inapplicability of House v The King (1936) 55 CLR 499; [1936] HCA 40 to the issues in this case is correct as far as it goes. We have not applied this as the appropriate standard of review of the primary judge’s decision.
We have not taken into account costs considerations in determining whether leave should be granted. The applicant is correct that “costs follow the event”.
We accept that the applicant’s written submissions have been filed on time. We do not discern any relevant prejudice to the applicant by what he said was the late service of material by the Insurer. No application for any adjournment was made by the applicant.
We reject the applicant’s submission that by reason of his self-represented status, no costs order should be made against him should leave be refused. As the applicant earlier, correctly, submitted, costs follow the event and there is no reason that they should not do so in the case of this leave application.
We reject the applicant’s submission that there was any arguable error in the primary judge failing to intervene about “the absence of a qualified endocrinologist”. In this complaint, the applicant has not demonstrated an issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable.
There is no doubt as to the correctness of the primary judge’s decision. For the reasons given by the primary judge, the arguments made by the applicant in the proceedings below do not identify any jurisdictional errors or errors of law on the face of the record in any of the Review Panel decisions. No issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable has been identified by the applicant.
For the forgoing reasons we make the following orders:
Leave to appeal refused.
Applicant to pay the respondent’s costs of the application for leave to appeal.
**********
Amended to correct spacing in catchwords
Khanna
Insurance Australia Limited [2025] NSWCA 125
(2010) 240 CLR 111
(2011) 82 NSWLR 336
(2003) 197 ALR 389
(2020) 102 NSWLR 123
(1936) 55 CLR 499
(2013) 249 CLR 332
(2022) 101 MVR 149
(2017) 95 NSWLR 597
(1975) 132 CLR 622
Leave to appeal refused. The applicant was ordered to pay the respondent’s costs of the application for leave to appeal.
for the purposes of ss 58(1)(a) and (b) of the MAC Act, apart from some ongoing physiotherapy, none of the applicant’s claimed treatment was reasonable and necessary treatment which related to injuries caused by the motor accident; and
for the purposes of s 58(1)(d), the degree of permanent impairment of the applicant as a result of physical injuries caused by the motor accident is 2%.
On 27 September 2022 Dr Cameron, Dr Carter and Dr Herman issued a combined Certificate in which they certified that the degree of permanent impairment to the applicant from injuries caused by the motor accident is 4%.
In the case of the alleged psychiatric conditions, the medical assessment matters were referred to Dr Young who undertook an assessment. Dr Young gave a Certificate on 25 July 2022 in which he concluded that:
On 22 June 2023, the Review Panel which assessed the applicant’s specific physical injuries issued a Certificate. The Review Panel essentially found that the applicant’s specific injuries were not caused by the motor accident other than in minor, temporary respects. For the minor injuries which were caused by the accident, no treatment was reasonable and necessary other than physiotherapy for a limited period which had concluded. To give effect to that conclusion, the Review Panel revoked the Certificate previously given by Dr Cameron and issued a Certificate in which it certified that there is no ongoing treatment which related to physical injuries caused by the accident and that the degree of the applicant’s permanent impairment resulting from physical injuries caused by the accident was less than 10%. This Certificate was accompanied by a 29 page Statement of Reasons, including an extensive analysis of the evidence relating to each of the applicant’s claimed physical injuries. The Review Panel explained why it reached the conclusion which it did for each physical injury. The same Annexure A and Annexure B as were attached to the diabetes certificate were attached.
On 30 June 2023, the Review Panel which assessed the applicant’s cardiac condition issued a Certificate. The Panel found that the exacerbation of the applicant’s cardiac condition was not caused by the accident. The Review Panel confirmed the Certificate previously given by Dr Herman. The Review Panel also issued a Statement of Reasons explaining why it concluded as it did.
On 20 September 2023, the Review Panel which assessed the applicant’s alleged psychiatric injuries undertook its own examination of the applicant. On 29 November 2023, the Review Panel issued a Certificate together with 31 pages of reasons. The Panel found that the applicant’s psychiatric conditions were not caused by the motor accident. In reaching that conclusion, the Panel found that the accident did not directly cause the applicant’s depression and anxiety. The Panel accepted that the depression and anxiety may have been caused by the applicant’s cardiac condition, but concluded that the accident did not cause the cardiac condition, in conformity with the Review Panel which assessed that specific condition.
The fifth complaint concerned alleged “Public Interest and Legal Precedents”. The applicant stated that the “matter raises substantial legal questions regarding procedural fairness, jurisdictional errors, and the correct application of statutory provisions, warranting appellate intervention”. This was not elaborated upon on any written or oral submission. We can discern no basis for this claim.
The sixth ground concerned the “Failure of Assessors Gorman and Haber to Show Cause and Provide Supporting Documents”. The applicant contended that “Assessors Gorman and Haber failed to comply with Paragraph 1.235 of the Motor Accidents Medical Guidelines, which mandates that medical assessors consider all relevant diagnostic test results before determining impairment. The appellant demands that the respondents show cause and provide all relevant documents upon which these assessors certified that the plaintiff did not suffer injuries, which was subsequently followed by the Supreme Court (see [Judgment, Paragraph 167])”.
The primary judgment at [167] is set out at [71] above. That paragraph has nothing to do with paragraphs 1.234-1.235 of the Motor Accidents Medical Guidelines. The primary judge dealt with this complaint completely and correctly below by rejecting the applicant’s near identical submission. As his Honour correctly found:
Draft appeal grounds 8.1-8.3 were repetitive of earlier complaints. Whilst ground 8.1 of the draft notice of appeal was addressed to the decision of the primary judge, the complaint made is essentially so vague as to be meaningless: “The trial judge incorrectly accepted the Review Panels findings without ensuring they adhered to statutory Requirements”; a reference was given to paragraph [168] of the judgment which we have set out above at [53]. If leave were granted on ground 8.1, it is inevitable that the ground as framed would be dismissed.
As we have explained, causation is a question of fact and, subject to the “no evidence” ground of review and, perhaps, the legal unreasonableness ground of review, the factual assessment of causation will be a matter for the Review Panel to determine. We are not satisfied that the applicant has demonstrated an issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable.
The applicant’s complaints about the way the Review Panel addressed his psychiatric history cannot be accepted. The primary judge approached this issue carefully and thoroughly. There was no arguable denial of procedural fairness nor was there failure to observe mandatory relevant considerations. We are not satisfied that the applicant has demonstrated an issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable.
The applicant’s complaints about a denial of procedural fairness at the “medical and judicial level” cannot be sustained. The applicant was given more than a fair opportunity to address the matters raised against him. As we have explained, there was an extensive process of consultation related to the physical examination of the applicant and extensive written and oral submissions were made to the primary judge. The primary judge afforded very considerable latitude to the applicant, including allowing two days of oral submissions and a 14 day period for supplementary submissions after the completion of the hearing. We are not satisfied that the applicant has demonstrated an issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable.
The applicant’s submission that “extensive supporting documentation” was not considered at all or “only superficially addressed” must be rejected. There was no “clearly articulated argument” presented by the applicant within the meaning of Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26. In any event, all of the evidence and submissions advanced by the applicant were carefully considered by the primary judge who did his best to address each of the “themes” advanced by a self-represented litigant. We are not satisfied that the applicant has demonstrated an issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable.
The applicant’s complaint that the outcome was legally unreasonable must be rejected. To the extent that this complaint was addressed to the decision of the primary judge, it is not open to the applicant. To the extent that the complaint was addressed to the decisions of the Review Panels, there was no error on the part of the primary judge in the way that he approached those decisions. It is not reasonably arguable that any of those decisions were legally unreasonable in the sense described in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18. We are not satisfied that the applicant has demonstrated an issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable.
The applicant complained that the primary judge did not critically engage with detailed medical assessments, which assessments the applicant has chosen not to put before this Court. We are not satisfied that there was any clearly articulated case about any medical report advanced by the applicant, let alone one that the primary judge failed to engage with. The suggestion that the primary judge did not give adequate reasons for his Honour’s decision must be rejected. The reasons are extensive and detailed. We are not satisfied that the applicant has demonstrated an issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable.
The applicant’s repetitive complaint about the absence of a qualified endocrinologist has already been rejected. There was no error by the primary judge in the way that his Honour dealt with this issue.
The applicant’s complaint about “psychiatric injury evidence” was difficult to understand in circumstances where those alleged treatment records were not put before this Court by the applicant. No process of reasoning or submission made to the primary judge was identified by the applicant about this issue. We are not satisfied that the applicant has demonstrated an issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable.
The applicant complained, again, about the “principles” of causation. As we have explained, the applicant fundamentally misunderstood those principles, which we have earlier addressed. The applicant referred to “Jebb v Commissioner of Police [2020] NSWCA 144”. There is no case by that name. There was no error in the way that the primary judge addressed the issue of causation and established authority such as Amaca Pty Ltd v Ellis (2010) 240 CLR 111; [2010] HCA 5 is taken from a different statutory context. We are not satisfied that the applicant has demonstrated an issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable.
Contrary to the applicant’s submission, there was no obligation on the primary judge to “reconcile” alleged “contradictions” between the original assessors and the Review Panels. We are not satisfied that the applicant has demonstrated an issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable.
The applicant’s allegation that he raised “multiple procedural fairness breaches in the NCAT and medical phases”, which were not dealt with appropriately by the primary judge must be rejected. The primary judge was faced with a morass of material and fairly and accurately addressed the matters of substance raised by the applicant. We are not satisfied that the applicant has demonstrated an issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable.
The repeated complaint by the applicant that the primary judge failed to address all substantial and clearly articulated arguments must be rejected. No error was shown in the primary judge’s approach to the Review Panels’ clinical judgment. We are not satisfied that the applicant has demonstrated an issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable.
As noted at the outset, in oral submissions the applicant accepted that leave to appeal was required and that, as he submitted in writing, he has not been able to complete or present a full “Schedule of Damages”. As we have explained, whether there is a real prospect that the change in financial position as a result of successful appeal will exceed $100,000 is a matter which must be proved by the applicant. This he has failed to do. The additional relief sought by the applicant could not in any event be provided even if leave to appeal were granted.
No additional matters to those addressed in the written submissions were raised by the applicant in the Reply to First Respondent’s Bundle of Authorities, opening statement or oral submissions.