Insurance Australia Ltd t/as NRMA Insurance v Scott

Insurance Australia Ltd trading as NRMA Insurance (the insurer) appealed to the Court of Appeal of New South Wales against a decision of Campbell J, who had granted judicial review of the insurer's decision to refer a claim for assessment and of certificates issued by medical assessors. The dispute concerned whether the claimant was entitled to compensation for attendant care services under the *Motor Accidents Compensation Act 1999* (NSW), specifically whether the existence of a genuine dispute under section 60 of the Act was a jurisdictional fact and whether "attendant care services" encompassed gratuitous domestic services.

The Court of Appeal was required to determine two primary legal issues. Firstly, whether the existence of a genuine dispute, as contemplated by section 60 of the *Motor Accidents Compensation Act 1999* (NSW), constituted a jurisdictional fact that, if wrongly determined by the insurer, rendered its subsequent decision to refer the claim for assessment invalid. Secondly, the Court had to consider the proper interpretation of "attendant care services" within the meaning of the Act, and in particular, whether such services included gratuitous domestic assistance provided by family members.

Basten, Ward and Gleeson JJA held that the existence of a genuine dispute under section 60 was not a jurisdictional fact, but rather a question of statutory interpretation that the insurer was empowered to determine. They reasoned that the Act provided a mechanism for resolving such disputes through the assessment process, and that judicial review was not intended to re-examine the merits of the insurer's assessment of a genuine dispute. Furthermore, the Court concluded that "attendant care services" under the Act did not extend to gratuitous domestic services, as the statutory scheme distinguished between different types of compensation and did not contemplate payment for services that were not provided by a paid carer or agency.

Consequently, the Court of Appeal allowed the insurer's appeal, set aside the orders of Campbell J, and dismissed the plaintiff's summons for judicial review with costs. The Court also granted the first respondent a certificate under the *Suitors’ Fund Act 1951* (NSW).