Morris v Motor Accidents Authority of New South Wales and QBE Insurance (Aust) Ltd
[2013] NSWSC 899
•22 May 2013
Supreme Court
New South Wales
Medium Neutral Citation: Morris v Motor Accidents Authority of New South Wales and QBE Insurance (Aust) Ltd [2013] NSWSC 899 Hearing dates: 22 May 2013 Decision date: 22 May 2013 Jurisdiction: Common Law Before: Davies J Decision: (1) On the Plaintiff, by her counsel, giving the usual undertaking as to damages (and I note that such undertaking has been given) the First Defendant is restrained from convening a medical assessment service Review Panel pending further order of this Court.
(2) I direct that notice of these orders be given to the First Defendant by service on the First Defendant's solicitors or the State Crown Solicitor.
(3) I direct that the orders be entered forthwith.
(4) In addition I give the directions and make the orders contained in short minutes of order for the further progressing of the principal proceedings.
Catchwords: ADMINISTRATIVE LAW - Motor Accidents Authority - referral to review panel - applicant seeks judicial review of referral - whether Review Panel should be enjoined from meeting to consider referral - injunction granted. Category: Interlocutory applications Parties: Julie Anne Morris (Plaintiff)
Motor Accidents Authority of New South Wales (First Defendant)
QBE Insurance (Aust) Ltd (Second Defendant)Representation: Counsel:
H J Halligan (Plaintiff)
No appearance (First Defendant)
No appearance (Second Defendant)
Solicitors:
Beilby Poulden Costello (Plaintiff)
Crown Solicitors Office (First Defendant)
Michael Sofoulis, QBE Insurance (Aust) Ltd (Second Defendant)
File Number(s): 2013/152104
Judgment
The Plaintiff suffered an injury in a motor vehicle accident on 30 April 2008. As a result of an assessment made by Dr Richard Crane on 5 November 2012 he determined that the Plaintiff had suffered a two per cent whole person impairment as a result of upper gastro-intestinal tract disorder, her overall whole present impairment exceeded ten per cent. That assessment by Dr Crane resulted in an application by QBE Insurance, the Second Defendant to have Dr Crane's assessment reviewed by a Review Panel.
On 30 April 2013 the Proper Officer referred the application for review to the Review Panel, being satisfied that there was a reasonable case to suspect that the medical assessment was incorrect in a material respect.
As a result of the notification of that referral the Plaintiff filed a Summons on 16 May seeking orders in the nature of certiorari setting aside the decision of 30 April being the referral decision and order in the nature of mandamus remitting the matter to the MAA, the First Defendant, for a decision according to law.
Notification was received that the Review Panel had been convened and would meet tomorrow, Thursday 23 May 2013.
The Plaintiff through her solicitors requested that there be a stay on the meeting of the Panel by reason of the Summons which has been filed seeking a review of the Proper Officer's decision. The MAA declined to agree to a stay and that has resulted in the Plaintiff seeking by Notice of Motion of 16 May an order for stay until the determination of her Summons.
Mr Halligan of counsel appeared for the Plaintiff before me this morning. He drew my attention to the Notice of Appearance filed on behalf of the Motor Accidents Authority which was a submitting appearance.
He had also spoken to the solicitor who appeared this morning for the MAA before the Registrar, who indicated that it neither consented nor opposed the orders sought in the Motion.
Mr Halligan had also spoken to a solicitor acting for QBE who said that he neither consented to nor opposed the orders that were being sought, and the solicitor informed Mr Halligan that QBE took the view that it was a matter for the Motor Accidents Authority assessment service.
It seems to me appropriate where the decision for referral to the Review Panel is being challenged that it is inappropriate for that Review Panel to meet to determine the review of Dr Crane's assessment. That is something which ought only be done at the conclusion of the hearing of the Plaintiff's Summons if the Plaintiff is unsuccessful in showing that a proper referral was made.
Accordingly I make these orders.
(1) On the Plaintiff, by her counsel, giving the usual undertaking as to damages (and I note that such undertaking has been given) the First Defendant is restrained from convening a medical assessment service Review Panel pending further order of this Court.
(2) I direct that notice of these orders be given to the First Defendant by service on the First Defendant's solicitors or the State Crown Solicitor.
(3) I direct that the orders be entered forthwith.
(4) In addition I give the directions and make the orders contained in short minutes of order for the further progressing of the principal proceedings.
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Decision last updated: 19 July 2013
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