The Supreme Court has issued a decision with significant implications as the power of the Personal Injury Commission (the Commission) to determine medical disputes.

This decision dealt with provisions in the Motor Accidents Injuries Act 2017 (NSW) (MAIA), as well as the application of the Personal Injury Commission Act 2020 (NSW) (PIC Act), the Personal Injury Commission Rules 2021 (PIC Rules), and the PIC Procedural Directions.

Background to the Case

On 23 November 2018, the plaintiff was involved in a motor vehicle accident. In July 2021, the plaintiff lodged an Application for Personal Injury Benefits claim form with the first defendant.

On 7 May 2024, the first defendant determined that the plaintiff’s injuries were “threshold injuries” as defined by s1.6 of the MAIA. The plaintiff sought internal review of this determination.

On 3 June 2024, the first defendant’s internal reviewer affirmed this decision. In making this determination, it was observed that there was no diagnosis of any psychological illness or injury, or any qualified medical evidence or treating report to support the injury alleged. The only evidence suggestive of such a diagnosis, was the report of a medico-legal orthopaedic surgeon. There was otherwise no indication the plaintiff had received treatment for any psychological injury.

On 30 July 2024, the plaintiff subsequently lodged an application for medical assessment, seeking a determination as to whether the plaintiff’s injuries were threshold injuries. The plaintiff sought to refer both physical and psychological injuries. The “psychiatric condition” referred was described as “depression, shock, anxiety.”

On 20 August 2024, the defendant lodged a reply to the application, and submitted there was no evidence in support of any psychological injury. Further, in the absence of a confirmed diagnosis, there could be no psychiatric diagnosis attributable to the accident. In doing so, the defendant relied upon Procedural Direction 6 (PIC 6) and submitted the injury could not be referred for determination.

The Commission subsequently provided the plaintiff with the opportunity to supply evidence in support of the psychological injury referred. In response, the plaintiff’s representatives made reference to the medico-legal report from the orthopaedic surgeon, and the suggestion within the GP file that the plaintiff would require referral to a psychologist. It was asserted this evidence was sufficient to establish there was a psychological injury.

On 13 September 2024, the Commission determined that the evidence provided was not sufficient, and accordingly the psychiatric dispute would not proceed.

The plaintiff sought judicial review of the Commission’s decision not to refer the alleged psychiatric injury for assessment.

Supreme Court Proceedings

On 1 December 2025, Mitchelmore J dismissed the plaintiff’s second further amended summons with costs.

The plaintiff primarily asserted that the existence of a “medical dispute” for the purposes of s7.20 of the MAIA is a jurisdictional fact, for the Court to determine on an application for judicial review. A jurisdictional fact is a fact which must be established to exist before a statutory power can be exercised. Further, that the existence of a jurisdictional fact can only be determined by a Court with appropriate jurisdiction, and therefore not by the Commission.

The plaintiff contended that where he claimed to have suffered a psychological injury, the defendant’s response was enough to give rise to a dispute about a medical assessment matter, which the Commission was obliged to refer for assessment.

The insurer submitted that the existence of a medical dispute is not a jurisdictional fact in the sense contended by the plaintiff. In any event, the Commission was not required to refer the dispute having regarding to the operation of the PIC Act, the PIC Rules and the Procedural Directions. Additionally, the insurer submitted that the application for judicial review was not one that attracted relief under s69 of the Supreme Court Act 1970 (NSW), because it did not have a discernible impact on the plaintiff’s rights. The plaintiff could simply lodge a further application for Medical Assessment in the PIC at a later date.

Mitchelmore J ultimately found that the assertion that only a Court could determine whether medical dispute exists was contrary to the Court of Appeal’s decision in Insurance Australia Ltd t/as NRMA Insurance v Scott [2016] NSWCA 138, and rejected the plaintiff’s attempt to distinguish that decision.

Mitchelmore J briefly addressed the insurer’s alternative submissions, namely that plaintiff had failed to comply with the procedural requirements outlined in PIC6. Her Honour concluded, at paragraph 39, that the PIC Rules, PIC Act and Procedural Directions were to assist the Commission in exercising its statutory functions:

“Those functions include, as I have found, determining whether there is a medical dispute for the purposes of s7.20 of the MAI Act…

In the present case, the absence of the evidence requested in accordance with the procedural rules was consistent with the absence of a medical dispute in relation to the claimed psychological injury and support of the decision made in that regard.”

Lastly, Michelmore J addressed the insurer’s argument that the decision was not amenable to relief under s69 of the Supreme Court Act 1970 (NSW). Her Honour considered there to be “some force” to this contention, noting the plaintiff was not prohibited from making another application for Medical Assessment to the PIC at a later date.

Implications of this Case for Insurers

The decision reaffirms the precedent set by Scott, in finding that the existence of a medical dispute was not a jurisdictional fact that could only be determined by the Court. Rather, whether or not there was a medical dispute was a matter for the Commission to decide.

Additionally, that the purpose of the Procedural Directions, including PIC6, are to facility the exercise of the Commission’s statutory functions. Those functions include the determination of whether or not there is a medical dispute to be assessed. In the absence of evidence required by the Procedural Directions, such as PIC6, the Commission has the power to find that there is no medical dispute for it to determine.

Further information / assistance regarding the issues raised in this article is available from the author, Helene Tretheway, Partner, or your usual contact at Moray & Agnew.