Kewin v AAI Ltd t/as GIO Insurance

[2026] NSWCA 86

NSW Court of Appeal

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Interrogate

Catchwords

1. 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

Quick Take

The Court of Appeal held that s 7.20(2) of the Motor Accident Injuries Act 2017 (NSW), which obliges the President to arrange for a medical dispute to be dealt with by a medical assessor, does not require the President to accept and refer every application for assessment of a threshold injury dispute regardless of evidentiary support. The mandatory obligation to 'arrange' assessment is anterior to and distinct from the step of 'accepting' a referral, and the President may refuse to accept an application that does not comply with procedural requirements, including cl 17 of Procedural Direction PIC6 requiring the applicant to produce evidence demonstrating the asserted injury status. The Court rejected the appellant's expressio unius argument that s 7.20(3)'s express refusal power for permanent impairment disputes was exhaustive of the bases on which the President could refuse a referral, and also doubted (without deciding) the insurer's submission that the absence of medical evidence meant no 'medical dispute' existed at all.