Mackey v Cic Allianz Australia Insurance Limited

[2015] NSWSC 505

Supreme Court

New South Wales

Medium Neutral Citation:

Mackey v CIC Allianz Australia Insurance Limited & Anor [2015] NSWSC 505

Hearing dates:

1 May 2015

Date of orders:

01 May 2015

Decision date:

01 May 2015

Jurisdiction:

Common Law

Before:

Beech-Jones J

Decision:

(1) An order that the decision of the Proper Officer of the Second Defendant made on 23 September 2014 referring the Plaintiff for a further medical assessment pursuant to s 62 of the Motor Accidents Compensation Act 1999 (NSW) be set aside.

 

(2) An order remitting the First Defendant’s application made on 26 August 2014 under s 62(1)(a) of the MACA to the Second Defendant to be dealt with according to law.

 (3)   An order that the First Defendant pay the Plaintiff’s costs in the agreed sum of $25,000.

Catchwords:

JUDICIAL REVIEW – consent orders – whether Court will make.

Legislation Cited:

- Motor Accidents Compensation Act 1999 – s 62
- Supreme Court Act 1970 – s 69

Cases Cited:

- Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480
- Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557
- McCosker v Motors Accidents Authority of New South Wales [2015] NSWSC 434

  - QBE Insurance (Australia) Ltd v Miller ]2013] NSWCA 442

Category:

Principal judgment

Parties:

David Wayne Mackey (Plaintiff)
CIC Allianz Australia Insurance Ltd (First Defendant)
Motor Accidents Authority of NSW (Second Defendant; submitting appearance filed 09.12.140

Representation:

Counsel:
J. Vizzone (Sol) (Plaintiff)
Dr K. Rewell SC (First Defendant)

  Solicitors:
Vizzone Ruggero Twigg - Plaintiff
Curwoods Lawyers – First Defendant
Crown Solicitor for NSW – Second Defendant

File Number(s):

2014/351355

Publication restriction:

Nil

ex tempore Judgment

1. These proceedings involve an application invoking this Court's supervisory jurisdiction confirmed by s 69 of the Supreme Court Act 1970. They seek review of a decision of the second defendant to refer the plaintiff for a further medical assessment pursuant to s 62 of the Motor Accidents Compensation Act 1999. The first defendant is the compulsory third party insurer of the driver of the motor vehicle whom the plaintiff asserts to be at fault.

2. The plaintiff and the first defendant have provided to the Court consent orders setting aside the second defendant's decision to refer the matter for further medical assessment and remitting it to the second defendant to be dealt with according to law. They also record a notation to the effect that the first defendant will withdraw its application to the second defendant under s 62(1)(a) for that referral for further medical assessment.

3. There is something of an issue as to whether, in circumstances where the active parties agree to set aside a decision of a public body, such as the second defendant who itself submits to the orders of the Court, the Court needs to be satisfied that there was some form of vitiating error (Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557). As a matter of administration, one reason why that course may be considered desirable is that, upon remittal, the relevant public body will have some guidance as to what they need to do in deciding the matter “according to law”. That particular consideration is not relevant in this case, but the question of principle still remains live.

4. It suffices to state that in this matter, having read the submissions, the Court is satisfied that there is a proper basis for the first defendant's concession having regard to the construction of s 62 enunciated by Rothman J in Singh v Motor Accidents Authority of New South Wales (No 2) [2010] 56 MVR 157 (“Singh No 2”) and the fact that was recently followed by Button J in McCosker v Motors Accidents Authority of New South Wales [2015] NSWSC 434 (notwithstanding two decisions of the Court of Appeal in December 2013 – namely QBE Insurance (Australia) Ltd v Miller ]2013] NSWCA 442; and Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480). In particular, in McCosker Button J isolated and applied a proposition from Singh No 2, namely that an expert opinion substantially based upon material that was in possession of a party at the time of the original assessment, even if the expert opinion was obtained after the original assessment, does not constitute “additional information” for the purposes of s 62(1A) (at [41]). On that basis, the Court will make the orders.

5. Accordingly, the Court will make orders 1, 2 and 3 in the Short Minutes and will note matter 4, namely:

1. An order that the decision of the Proper Officer of the Second Defendant5 made on 23 September 2014 referring the Plaintiff for a further medical assessment pursuant to s 62 of the Motor Accidents Compensation Act 1999 (NSW) (“MACA”) be set aside.

2. An order remitting the First Defendant’s application made on 26 August 2014 under s 62(1)(a) of the MACA to the Second Defendant to be dealt with according to law.

3. An order that the First Defendant pay the Plaintiff’s costs in the agreed sum of $25,000.

4. The Court notes that, upon the matter being remitted to the Second Defendant, the First Defendant will withdraw the application made on 26 August 2014 under s 62(1)(a) of the MACA.

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