Flanagan v Allianz Australia Insurance Ltd [2022] NSWSC 1374
Hearing dates:
9 August 2022; further written submissions filed 15, 16,17 and 18 August 2022.
Date of orders:
12 October 2022
Decision date:
12 October 2022
Jurisdiction:
Common Law
Before:
Chen J
Decision:
(1) Order in the nature of certiorari moving into this Court and quashing the certificate issued by the third defendants, constituting a Review Panel of the second defendant, dated 14 November 2021.
(2) Order that proceedings PIC matter number R10387530 is remitted to the second defendant to be referred, under s 7.26(6) of the Motor Accident Injuries Act 2017 (NSW), to a review panel to be determined according to law.
(3) Order that the first defendant to pay the plaintiff’s costs of the proceedings in this Court.
(4) Grant liberty to apply to either party to apply to have that costs order varied, upon application made in writing to the associate to Chen J by 19 October 2022, 5pm.
Catchwords:
ADMINISTRATIVE LAW – Judicial review of Review Panel assessment of permanent impairment under Division 7.5 of the Motor Accident Injuries Act 2017 (NSW) – force or status of Motor Accident Guidelines – no legal obligation in cl 6.18 of the Guidelines to consider particular evidence – separate assessment of injury – no inconsistency between medical findings – failure to comply with cl 6.70 of the Guidelines – assessment of permanent impairment using incorrect AMA4 table – error on the face of the record and jurisdictional error established
ADMINISTRATIVE LAW – Judicial review – where error established – whether discretion to refuse relief should be exercised – whether relief futile – affected parties entitled to have matter determined according to law – further assessment may not reach the same conclusion – relief granted
[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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Flanagan v Allianz Australia Insurance Ltd [2022] NSWSC 1374
Case
[2022] NSWSC 1374
Decision Date
CaseChat Overview and Summary
In the case of Flanagan v Allianz Australia Insurance Ltd, the applicant sought judicial review of a decision by a Review Panel under the Motor Accident Injuries Act 2017 (NSW) to assess the applicant's permanent impairment. The Supreme Court of New South Wales was tasked with determining the legality of the Review Panel's assessment and the appropriateness of granting relief.
The primary legal issue was whether the Review Panel's reliance on the Motor Accident Guidelines, specifically clause 6.18, was legally binding in its decision-making process. Additionally, the court had to consider whether the Panel's use of an incorrect AMA4 table for assessing permanent impairment constituted a jurisdictional error and warranted relief. The applicant argued that the Panel's failure to consider specific evidence and its incorrect application of the AMA4 table amounted to a failure to comply with the statutory scheme.
The court found that there was no legal obligation for the Panel to consider particular evidence under clause 6.18 of the Guidelines. However, the court also determined that the Panel's use of an incorrect AMA4 table for assessing the applicant's permanent impairment was an error on the face of the record and a jurisdictional error. As a result, the court exercised its discretion to grant relief, recognising that the affected parties were entitled to have their matter determined according to law. The court also noted that a further assessment might not necessarily reach the same conclusion.
The final orders of the court included setting aside the Review Panel's decision and directing the insurer to conduct a further assessment of the applicant's permanent impairment using the correct AMA4 table. The court also ordered the insurer to pay the applicant's costs of the application.