Stephen John Kewin v AAI LIMITED trading as GIO Insurance

2025/00487864

ADMINISTRATIVE LAW – Mr Kewin (the applicant) seeks leave to appeal from a decision dismissing an amended summons seeking judicial review of a decision of a delegate of the President of the Personal Injury Commission. The proceedings relate to an application for judicial review of a decision not to refer an alleged psychological injury for medical assessment under s 7.20 of the Motor Accident Injuries Act 2017 (NSW). Mr Kewin had been injured in a motor vehicle accident and disputed the insurer's determination that his injuries were "threshold injuries" which limited his entitlement to statutory benefits and precluded common law damages. While disputes relating to his physical injuries were referred for medical assessment, the Commission declined to refer the claimed psychological injury because there was no confirmed medical diagnosis or insufficient supporting evidence. Mr Kewin argued that the existence of a "medical dispute" was a jurisdictional fact requiring referral for assessment, such that the Commission's refusal amounted to jurisdictional error. Her Honour held that the existence of a medical dispute was not a jurisdictional fact for objective determination by the Court, but rather a matter entrusted in the evaluative judgment of the President (or delegate). Her Honour concluded that the statutory regime permitted the Commission to determine whether a dispute warranted referral, bearing in mind the sufficiency of evidence provided; in this case, no error in declining to refer the alleged psychological injury was made out because of the absence of a confirmed diagnosis. Two grounds of appeal are contended: (i) that her Honour erred in holding that the existence of a medical dispute is not a jurisdictional fact; and (ii) that her Honour erred in concluding that there is no inconsistency between Procedural Direction 6 and s 7.20 of the MAI Act. Mr Kewin argues that a problematic situation arises where a claimant and insurer agree that there is a "threshold injury" dispute but that such a dispute may not be allocated to a medical assessor because the President (or delegate) considers that the information provided is insufficient.

Stephen John Kewin v AAI Limited t/as GIO Insurance [2025] NSWSC 1425