Searle v McGregor [2022] NSWCA 213


Mr McGregor (the claimant) was in a motor vehicle accident in Albury, at a time when he resided in Albury, NSW. Mr Searle (the insured) resided in Wodonga, Vic. Mr Searle was indemnified by the Transport Accident Commission of Victoria.

The parties recognised the damages claim may involve an exercise of federal jurisdiction.

Mr McGregor made an application to the District Court under s26 of the Personal Injury Commission Act 2020 (NSW) (PIC Act). The primary judge held the requirements of s26 had been met, and gave Mr McGregor leave to proceed in the District Court pursuant to s26(3) of the PIC Act.

TAC, the insurer of Mr Searle sought leave to appeal the interlocutory decision. TAC submitted the criteria for making an order under s26 of the PIC Act were not made out as procedural requirements stipulated in the Motor Accident Injuries Act (the MAI Act) had not been complied with.

Issues in Dispute

The Court of Appeal (Bell CJ, Ward P & Kirk JA) found the following issues arose:

  1. The absence of an application requiring determination in this case
  2. The constitutional limitation
  3. Construction of s26 of the PIC Act.


Absence of an application requiring determination in this case

Section 26 of the PIC Act specifies:

“A person with standing to apply to the President or the Commission for a matter concerning a compensation claim to be determined by the usual decision-maker (a "compensation matter application") may, with the leave of the District Court, make the application to the Court instead of the President or Commission.” (emphasis added)

Where a party wishes to proceed with a ‘federally impacted’ matter in the District Court, any originating process must be accompanied by the application for assessment of one of the disputes listed in the MAI Act.

The respondent had not done so, and instead filed a statement of claim, without the pre-requisite application to determine some particular dispute or issue that had arisen, being an application for assessment of one of the 40 types of disputes listed in Schedule 2 of the MAI Act.

Succinctly put by Kirk JA, “the application did not identify any dispute or issue requiring determination”. This was “fatal to Mr McGregor’s position in this case.”[1]

The constitutional limitation

While the primary issue in dispute was the “absence of an application requiring determination”, Kirk JA offered interesting and potentially relevant obiter in relation to the Burns v Corbett ‘constitutional limitation’.

The issue in dispute in Burns v Corbett was whether state tribunals that are not ‘courts’ can adjudicate matters within federal jurisdiction.

Kirk JA noted “the Burns v Corbett principle does not prohibit State administrative tribunals from taking steps or resolving issues which do not involve the exercise of judicial power.”[2]

Significantly, the Court of Appeal noted the Personal Injury Commission was incorrect in its view that Burns v Corbett precluded it from exercising powers which are not judicial, in relation to issues arising in the course of dealing with such disputes.[3]

Kirk JA did not accept that medical assessments involved an exercise of judicial power, noting such a suggestion is “counter-intuitive.”[4]

Moreover, Kirk JA was not convinced that the decision-makers within the PIC exercised ‘judicial power’, because “the assessment of the PIC is an advisory opinion.”[5]


It would therefore seem arguable, calling in aid the obiter from Kirk JA, that the PIC is not exercising judicial power when adjudicating disputes which involve interstate parties, because decision makers in the PIC offer ‘advisory opinions’ rather than judicial ones, and therefore arguably are not exercising federal jurisdiction.

This is contrary to the view taken by the PIC, who have referred all disputes involving interstate parties to the court by reason of them being ‘federally impacted’.

We await with curiosity as to whether this decision will prompt PIC to review its approach to potentially ‘federally impacted’ matters.

Further information / assistance regarding the issues raised in this article is available from the author, Frances Allen, Partner, Carla Higgins, Lawyer or your usual contact at Moray & Agnew.

1. Searle v McGregor [2022] NSWCA 213, [76].
2. Ibid, [1]
3. Ibid, [19]
4. Ibid, [80]
5. Ibid, [36]