Cahill v Insurance Australia Ltd - [2019] NSWSC 564

Supreme Court

New South Wales

Medium Neutral Citation: Cahill v Insurance Australia Ltd [2019] NSWSC 564
Hearing dates: 31 May 2018
Date of orders: 16 May 2019
Decision date: 16 May 2019
Jurisdiction: Common Law
Before: Campbell J
Decision:
Refuse relief sought;
Dismiss the proceedings;
The plaintiff to pay the first defendant’s costs.

Catchwords: ADMINISTRATIVE LAW – Judicial review – appeal against determination of Motor Accident Medical Assessment Service – whether jurisdictional error – whether error of law on the face of the record – whether failure to refer to particular evidence constitutes a failure to take into account relevant considerations – whether there was a failure to refer to evidence – whether evidence admitted of one lawful outcome only – overriding function of review panel – case not made out – dismiss proceedings
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) (the Act) ss 61, 63, 131
Cases Cited: AAI Limited T/as v GIO v McGiffen [2016] NSWCA 229; 77 MVR 348;
Alliance Australia Insurance Limited v Cervantes [2012] NSWCA 244;
Bradley v Insurance Australia Ltd t/as NRMA Insurance [2015] NSWSC 950; 71 MVR 496
Boyce v Allianz Australia Insurance Ltd [2018] NSWCA 22
Bugat v Fox [2014] NSWSC 888; 67 MVR 150
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Mitrovic v Motor Accidents Authority of New South Wales [2012] NSWSC;
Nguyen v Motor Accidents Authority (NSW) [2011] NSWSC 351; 58 MVR 29
Owen v Motor Accidents Authority of NSW [2012] NSWSC 650; 61 MVR 245
Rodger v De Gelder [2015] NSWCA 211; 71 MVR 514
Wingfoot Australia Partners Pty Limited v Kocak (2013) 252 CLR; [2013] HCA 43
Category: Principal judgment
Parties: Joanne Cahill (Plaintiff)
Insurance Australia Ltd t/as NRMA Insurance (First Defendant)
State Insurance Regulatory Authority (Second Defendant);
A Review Panel appointed by the State Insurance Regulatory Authority comprising of Assessors Crane, Assem and Mahoney (Third Defendant)
Representation:
Counsel:
M. Robinson SC together with K. Brown and A. Mykkeltvedt (Plaintiff)
K.P. Rewell SC together with J Gumbert (Defendant)
Solicitors:
Gerard Malouf & Partners (Plaintiff)
Sparke Helmore (First Defendant)

File Number(s): 2017/374667

Judgment

The plaintiff seeks judicial review of a decision made on 11 September 2017 by the third defendant being a review panel of the Motor Accident Medical Assessment Service (The Review Panel) convened by the Proper Officer of the State Insurance Regulatory Authority (The Authority). The decision was made pursuant to ss 61 and 63(3) of the Motor Accidents Compensation Act 1999 (NSW) (the Act) and is said to contain a number of jurisdictional errors, or errors of law on the face of the record. The plaintiff orders in the nature of certiorari and mandamus setting aside the decision made, and remitting the matter for redetermination, by the Review Panel; or a declaration that the decision is invalid.

Background facts

The evidence at the hearing consisted of the affidavit of Kin Lap Chow sworn on 11 December 2017…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWSC 564
Decision Date: 16 May 2019

CaseChat Overview and Summary

The case of Cahill v Insurance Australia Ltd involved the plaintiff seeking judicial review of a decision made by the Motor Accident Medical Assessment Service (MAMAS). The dispute centred on whether the MAMAS had made a jurisdictional error or an error of law on the face of the record when determining the plaintiff's entitlement to medical benefits. The case was heard and determined in the Federal Circuit Court of Australia.

The primary legal issues before the court were whether the MAMAS had failed to consider relevant evidence, which constituted a failure to take into account relevant considerations, and whether the MAMAS's decision was based on evidence that admitted of only one lawful outcome. The court also needed to determine whether the overriding function of the review panel led to the conclusion that the MAMAS had erred in law.

The court found that the MAMAS had not made a jurisdictional error or an error of law on the face of the record. It held that there was no failure to refer to evidence, and the evidence did not admit of only one lawful outcome. The court found that the MAMAS had exercised its overriding function correctly, and the plaintiff's case did not meet the threshold for judicial review. The court dismissed the proceedings, concluding that the case had not been made out. The decision underscores the high threshold required for a successful appeal against a decision of a specialised statutory tribunal.

Orders