Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Jubb v Insurance Australia Ltd [2016] NSWCA 153 Hearing dates: 27 May 2016 Decision date: 04 July 2016 Before: Meagher JA at [1]
Gleeson JA at [2]
Payne JA at [97]Decision: (1) grant leave to file a further amended notice of appeal deleting ground 1;
(2) direct the appellant to file a further amended notice of appeal within 14 days;
(3) appeal dismissed;
(4) appellant to pay the first respondent’s costs.Catchwords: ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 – decision of a proper officer – referral for further medical assessment – whether proper officer misconstrued s 62(1A) precondition to referral for further assessment on basis of “additional relevant information” – whether jurisdictional error – whether constructive failure of the proper officer to exercise jurisdiction under s 62(1) – meaning of “additional relevant information” – whether s 62(1)(a) includes information relating to issues considered in earlier assessment – distinction between satisfaction of precondition to referral for further assessment in s 62(1A) and exercise of discretion by proper officer under s 62(1)
ADMINISTRATIVE LAW – judicial review – jurisdictional error – whether failure to take mandatory consideration into account – whether consideration mandatoryLegislation Cited: Interpretation Act 1987 (NSW), ss 5, 9
Motor Accidents Compensation Act 1999 (NSW), ss 5(1)(c), 57, 58, 60, 61, 62, 63
State Insurance Care and Governance Act 2015 (NSW), Sch 4
Supreme Court Act, 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), r 42.1Cases Cited: Abebe v Commonwealth of Australia [1999] HCA 14; 197 CLR 510
Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182
Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 443
Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302
Akins v National Australian Bank (1994) 34 NSWLR 155
Buck v Bavone [1976] HCA 24; 135 CLR 110
Craig v South Australia [1995] HCA 58; 184 CLR 163
D’Amore v Independent Commission Against Corruption [2013] NSWCA 187; 303 ALR 242
Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416
Garcia v Motor Accidents Authority [2009] NSWSC 1056; 54 MVR 102
Greater Wollongong City Council v Cowan [1955] HCA 16; 93 CLR 435
Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480; 66 MVR 69
McCosker v Motor Accidents Authority of NSW [2015] NSWSC 434
Meeuwissen v Bowden [2010] NSWCA 253; 78 NSWLR 143
Mifsud v Campbell (1991) 21 NSWLR 725
Miles v Motor Accident Authority of NSW [2013] NSWSC 97
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259
Minister for Immigration v Yusuf [2001] HCA 30; 206 CLR 323
Mullin v CIC Allianz Australia Ltd [2015] NSWSC 831; 71 MVR 322
Nominal Defendant v Kostic [2007] NSWCA 14
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Details
- Case
- [2016] NSWCA 153
- Decision Date
CaseChat Overview and Summary
The appeal concerned a judicial review application brought by the appellant, Mr Jubb, against a decision made by a proper officer under the *Motor Accidents Compensation Act 1999* (NSW). The dispute centred on the proper officer's decision to refer Mr Jubb for a further medical assessment, which Mr Jubb argued was made in error. The matter was heard by Meagher, Gleeson and Payne JJA in the Court of Appeal of New South Wales.
The primary legal issues before the court were whether the proper officer had misconstrued the preconditions for referral for further medical assessment under section 62(1A) of the Act. Specifically, the court had to determine the meaning of "additional relevant information" in that section and whether it encompassed information relating to issues already considered in an earlier assessment. The court also considered whether the proper officer had committed a jurisdictional error by failing to exercise their jurisdiction under section 62(1) or by constructively failing to do so, and whether the consideration of certain information was mandatory.
The Court of Appeal reasoned that the proper officer's satisfaction of the precondition in section 62(1A) was distinct from the exercise of their discretion under section 62(1). The court found that the proper officer had not misconstrued the meaning of "additional relevant information" and that the information considered was indeed additional and relevant, satisfying the statutory precondition. Consequently, the proper officer had not committed a jurisdictional error by failing to exercise their jurisdiction.
The appeal was dismissed. Leave was granted to file a further amended notice of appeal deleting ground 1, and the appellant was directed to file a further amended notice of appeal within 14 days. Mr Jubb was ordered to pay the first respondent's costs.
The primary legal issues before the court were whether the proper officer had misconstrued the preconditions for referral for further medical assessment under section 62(1A) of the Act. Specifically, the court had to determine the meaning of "additional relevant information" in that section and whether it encompassed information relating to issues already considered in an earlier assessment. The court also considered whether the proper officer had committed a jurisdictional error by failing to exercise their jurisdiction under section 62(1) or by constructively failing to do so, and whether the consideration of certain information was mandatory.
The Court of Appeal reasoned that the proper officer's satisfaction of the precondition in section 62(1A) was distinct from the exercise of their discretion under section 62(1). The court found that the proper officer had not misconstrued the meaning of "additional relevant information" and that the information considered was indeed additional and relevant, satisfying the statutory precondition. Consequently, the proper officer had not committed a jurisdictional error by failing to exercise their jurisdiction.
The appeal was dismissed. Leave was granted to file a further amended notice of appeal deleting ground 1, and the appellant was directed to file a further amended notice of appeal within 14 days. Mr Jubb was ordered to pay the first respondent's costs.
Orders
Orders of the court
(1) grant leave to file a further amended notice of appeal deleting ground 1;
(2) direct the appellant to file a further amended notice of appeal within 14 days;
(3) appeal dismissed;
(4) appellant to pay the first respondent’s costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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