Basten JA at [1]; Macfarlan JA at [21]; White JA at [22]
Decision:
(1) Appeal allowed.
(2) Set aside the orders of the court below of 4 June 2021.
(3) In lieu thereof order that the summons be dismissed with costs.
(4) Order that the first respondent pay the appellant’s costs of the appeal and be granted an indemnity certificate under s 6 of the Suitors’ Fund Act 1951 (NSW).
Catchwords:
ADMINISTRATIVE LAW – judicial review – jurisdictional error – Motor Accidents Compensation Act 1999 (NSW), s 63(3) – power requiring decision maker to consider whether there was reasonable cause to suspect material error in medical assessment – whether decision maker exceeded statutory role by determining asserted error on the merits
ADMINISTRATIVE LAW – judicial review – jurisdictional error – Motor Accidents Compensation Act 1999 (NSW), s 63(3) – power requiring decision maker to consider whether there was reasonable cause to suspect material error in medical assessment – whether decision maker exceeded his bounds of authority by declining to refer a matter to a review panel where there was significant differences of opinion among medical practitioners
ADMINISTRATIVE LAW – judicial review – jurisdictional error – Motor Accidents Compensation Act 1999 (NSW), s 63(3) – power requiring decision maker to consider whether there was reasonable cause to suspect material error in medical assessment – whether the inevitable result of the presence of conflicting medical opinions is that there must be reasonable cause to suspect that the medical assessment is incorrect in a material respect
ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 (NSW), s 63(3) –– whether primary judge erred in ordering that the medical assessment be referred to a review panel rather than referring the matter back to a proper officer
Insurance Australia Ltd t/as NRMA Insurance Ltd (Appellant) Robert William Marsh (First Respondent) The President of the Personal Injury Commission (Second Respondent)
Representation:
Counsel: M A Robinson SC with O Dinkha (Appellant) C A W Hart (First Respondent) Submitting appearance for Second Respondent
Solicitors: Hall & Wilcox Lawyers (Appellant) Michael…
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
AGLC
Insurance Australia Ltd v Marsh [2022] NSWCA 31
Case
[2022] NSWCA 31
Decision Date
CaseChat Overview and Summary
Insurance Australia Ltd (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning the interpretation and application of section 63(3) of the *Motor Accidents Compensation Act 1999* (NSW). The dispute arose from a decision by a proper officer of the Motor Accidents Authority (now the State Insurance Regulatory Authority) to decline to refer a medical assessment to a review panel, despite the presence of conflicting medical opinions. The primary judge had found that the proper officer erred and ordered that the matter be referred to a review panel.
The central legal issues before the Court of Appeal were whether the proper officer had exceeded their statutory role by determining the asserted material error in the medical assessment on its merits, and whether the existence of significant differences of opinion among medical practitioners necessarily constituted reasonable cause to suspect a material error. The court was also required to consider whether the primary judge erred in ordering a referral to a review panel rather than remitting the matter back to a proper officer.
The Court of Appeal reasoned that section 63(3) of the Act required the decision maker to consider whether there was reasonable cause to suspect a material error, not to determine the existence of such an error on the merits. The court held that the presence of conflicting medical opinions did not, in itself, automatically create reasonable cause to suspect a material error. The decision maker was entitled to form a view on the weight of the evidence presented. Consequently, the court found that the proper officer had not exceeded their statutory authority by declining to refer the matter to a review panel.
The Court of Appeal allowed the appeal, set aside the orders of the primary judge, and dismissed the summons. The first respondent was ordered to pay the appellant's costs of the appeal and was granted an indemnity certificate.
Orders
Orders of the court
(1) Appeal allowed.
(2) Set aside the orders of the court below of 4 June 2021.
(3) In lieu thereof order that the summons be dismissed with costs.
(4) Order that the first respondent pay the appellant’s costs of the appeal and be granted an indemnity certificate under s 6 of the Suitors’ Fund Act 1951 (NSW).