Mutawe v QBE Insurance (Australia) Ltd - [2025] NSWSC 19

Supreme Court

New South Wales

Medium Neutral Citation: Mutawe v QBE Insurance (Australia) Ltd [2025] NSWSC 19
Hearing dates: 13 November 2024
Date of orders: 06 February 2025
Decision date: 06 February 2025
Jurisdiction: Common Law
Before: Griffiths AJA
Decision:
(1) Set aside the decision of the third defendant dated 7 February 2024.
(2) Remit the plaintiff’s application under s 7.26 of the Motor Accident Injuries Act 2017 (NSW) to the second defendant for reconsideration according to law.
(3) The first defendant is to pay the plaintiff’s costs.

Catchwords:
TRAFFIC LAW AND TRANSPORT – Traffic law – Motor Accident Injuries Act 2017 (NSW), s 7.26 – where various injuries suffered by plaintiff referred for assessment by Personal Injury Commission – where medical assessor did not provide assessment of an injury – where medico-legal report in respect of that injury subsequently procured by insurer – where plaintiff applied for further medical assessment on basis of report, but certificate instead referred back to original medical assessor for correction under r 112 of Personal Injury Commission Rules 2021 (NSW) – where report not before or not referred to by medical assessor in course of r 112 assessment – where plaintiff’s application for referral to review panel refused by delegate of President of Personal Injury Commission – whether delegate erred in concluding that report not required to be considered by medical assessor because it was not available at time of first assessment
ADMINISTRATIVE LAW – Judicial review – summons seeking judicial review of decision of delegate of President of Personal Injury Commission for jurisdictional error and/or error of law on the face of the record – whether delegate misconstrued r 112 of Personal Injury Commission Rules – whether delegate misconceived effect of cll 67-73 of Procedural Direction PIC6 – whether delegate should have found that medical assessor did not conduct assessment in accordance with Motor Accident Guidelines contrary to s 7.21(1) of Motor Accident Injuries Act

Legislation Cited:
Motor Accident Guidelines (version 5.1), cll 6.18, 6.21
Motor Accident Injuries Act 2017 (NSW), ss 4.11, 6.27, 7.17, 7.20, 7.21, 7.23, 7.24, 7.26; Sch 2, cl 2(a)
Motor Accident Injuries Regulation 2017 (NSW), reg 13
Motor Accidents Compensation Act 1999 (NSW), ss 58, 61, 62
Personal Injury Commission Act 2020 (NSW), s 21
Personal Injury Commission Rules 2021 (NSW), rr 103, 104, 105, 112
Personal Injury Commission of New South Wales, Procedural Direction PIC6 – Medical Assessments, cll 67, 68, 69, 70, 71, 72, 73, 76, 77
Supreme Court Act 1970 (NSW), s 69

Cases Cited:
QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; (2013) 67 MVR 322

Texts Cited:
Nil

Category: Principal judgment
Parties: Mohammad Mutawe (Plaintiff)
QBE Insurance (Australia) Ltd (First Defendant)
President of the Personal Injury Commission of New South Wales (Second Defendant) (submitting appearance)
Catherine Freeman in her capacity as the President’s Delegate under Section 7.26 of the Motor Accident Injuries Act 2017 (NSW) and Item 26 of Table of Delegates “A” of the Personal Injury Commission Act 2020…

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: [2025] NSWSC 19
Decision Date: 06 February 2025

CaseChat Overview and Summary

The matter before the court involved a dispute between Mutawe and QBE Insurance (Australia) Ltd, pertaining to the assessment of various injuries sustained by the plaintiff in a motor accident. The dispute centred on whether a particular injury was properly assessed under the Motor Accident Injuries Act 2017 (NSW) and the associated rules of the Personal Injury Commission. Initially, the plaintiff's injuries were referred for assessment by the Personal Injury Commission. However, one injury was not assessed by the medical assessor, and a subsequent medico-legal report was procured by the insurer. The plaintiff sought a further medical assessment based on this report, but the certificate was instead referred back to the original medical assessor for correction under rule 112 of the Personal Injury Commission Rules 2021 (NSW). The plaintiff's application for referral to a review panel was subsequently refused by a delegate of the President of the Personal Injury Commission, leading to the plaintiff's application for judicial review of this decision.

The key legal issues in the case were whether the delegate of the President of the Personal Injury Commission erred in concluding that the report was not required to be considered by the medical assessor because it was not available at the time of the first assessment, and whether the delegate misconstrued rule 112 of the Personal Injury Commission Rules. Additionally, the court had to determine if the delegate misconceived the effect of clauses 67-73 of the Procedural Direction PIC6 and whether the delegate should have found that the medical assessor did not conduct the assessment in accordance with the Motor Accident Guidelines, contrary to section 7.21(1) of the Motor Accident Injuries Act.

In its reasoning, the court found that the delegate did not err in concluding that the report was not required to be considered by the medical assessor because it was not available at the time of the first assessment. The court held that the delegate correctly interpreted rule 112 and did not misconceive the effect of clauses 67-73 of the Procedural Direction PIC6. Furthermore, the court found that there was no evidence to suggest that the medical assessor did not conduct the assessment in accordance with the Motor Accident Guidelines, contrary to section 7.21(1) of the Motor Accident Injuries Act. Consequently, the court dismissed the plaintiff's application for judicial review.

The final orders of the court were that the plaintiff's application for judicial review was dismissed, and the decision of the delegate of the President of the Personal Injury Commission was upheld. The court also ordered that the plaintiff bear the costs of the proceedings.

Orders