Mullin v CIC Allianz Australia Ltd - [2015] NSWSC 831

Supreme Court

New South Wales

Medium Neutral Citation: Mullin v CIC Allianz Australia Ltd and Anor [2015] NSWSC 831
Hearing dates: 19 June 2015
Date of orders: 26 June 2015
Decision date: 26 June 2015
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1) The Plaintiff's summons be dismissed.
(2) The Plaintiff pay the First Defendant's costs.

Catchwords:
MOTOR ACCIDENTS – refusal by proper officer of Motor Accidents Authority to refer a medical dispute for further assessment – Motor Accidents Compensation Act s 62 – additional relevant information – decision in Singh v Motor Accidents Authority of NSW (No 2) doubted – whether information not in possession of party at time of assessment but available with exercise of reasonable diligence is “additional” information.
HELD – information not in possession of party and MAS Assessor is additional – proceedings dismissed.
Legislation Cited: - Motor Accidents Compensation Act 1999 – Part 3.4, s 6, s 44, s 59, s 62, s 68
Cases Cited:
- Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182
- Council of the City of Wollongong v Cowan (1955) 93 CLR 435
- Garcia v Motor Accidents Authority of New South Wales [2009] NSWSC 1056
- Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480
- McCosker v Motor Accidents Authority of New South Wales [2015] NSWSC 434
- Mackey v CIC Allianz Australia Insurance Limited & Anor [2015] NSWSC 505
- Miles v Motor Accident Authority (NSW) [2013] NSWSC 927
- QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442
- R v Connell; ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407
- Rodger v De Gelder & Anor [2011] NSWCA 97; 80 NSWLR 594
- Singh v Motor Accidents Authority of NSW (No 2) [2010] NSWSC 1443
- SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Category: Principal judgment
Parties: William Mullin (Plaintiff)
CIC Allianz Australia Limited (First Defendant)
Motor Accidents Authority of New South Wales (Second Defendant – submitting appearance filed 30.01.15)
Representation:
Counsel:
M.A. Robinson SC, Ms A Poljak (Plaintiff)
K.P. Rewell SC (First Defendant)
Solicitors:
Paul A. Curtis & Co (Plaintiff)
Curwoods Lawyers (First Defendant)
Acting Crown Solicitor (Second Defendant)

File Number(s): 2014/360364
Publication restriction: Nil

Judgment

On 11 August 2010 the plaintiff, Mr Mullin, was a passenger in a bus. The bus stopped suddenly because two other buses were parked in the bus lane in which it was travelling. Mr Mullin’s arm and shoulder were hurt when they became trapped between another passenger and a railing.
On 23 August 2010 Mr Mullin lodged a motor accident personal injury claim form with the second defendant, the Motor Accidents Authority (“MAA”). The relevant insurer in respect of his claim is the first defendant to these proceedings, CIC/Allianz Australia Limited (“CIC”).
In March 2013 Mr Mullin filed an application for an assessment of a medical dispute by the Medical Assessment Service (“MAS”) under Part 3.4 of the Motor Accidents Compensation Act 1999 (the “MAC Act”). In…

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

Case: [2015] NSWSC 831
Decision Date: 26 June 2015

CaseChat Overview and Summary

In the case of Mullin v CIC Allianz Australia Ltd, the dispute arose from a refusal by the proper officer of the Motor Accidents Authority to refer a medical dispute for further assessment. The case was heard in the Supreme Court of New South Wales. The plaintiff, Mullin, sought a review of the decision under section 62 of the Motor Accidents Compensation Act, arguing that there was additional relevant information that had not been considered.

The central legal issue before the court was whether information that was not in the possession of the party at the time of the assessment but was available with the exercise of reasonable diligence could be considered "additional" information. The court was required to determine whether the proper officer's decision to not refer the dispute for further assessment was correct. This required an analysis of the statutory language and the precedent set in Singh v Motor Accidents Authority of NSW (No 2), which seemed to doubt the broad interpretation of "additional" information.

The court found that information not in the possession of the party and the Motor Accidents Scheme Assessor is indeed considered "additional" information under the Act. The reasoning was based on the statutory language and the principle that information must be available to both parties to be considered relevant. The court concluded that the proper officer did not err in their decision, as the information in question was not in the possession of the party at the time of the assessment and could not be reasonably expected to have been discovered through diligent efforts. Consequently, the proceedings were dismissed.

Orders