Neskovic v Beydoun

The case of Neskovic v Beydoun involved a plaintiff who initiated proceedings for personal injuries sustained in a motor vehicle accident. The defendant moved for a stay of the proceedings under section 86(4) of the Motor Accidents Compensation Act 1999 (NSW) because the plaintiff had refused to comply with the defendant's request to undergo a Functional Independence Measure (FIM) assessment, which was necessary to determine the plaintiff's eligibility for participation in the Lifetime Care and Support Scheme. The court was required to decide whether the stay should be granted in light of the plaintiff's refusal to comply with the defendant's request to undergo a FIM assessment.

The court considered the wording of section 86(1) of the Act, which uses the word "must" in relation to the requirement for a person to comply with a request to undergo an assessment. The court determined that the statutory language indicated a mandatory obligation, and the plaintiff's failure to comply with the defendant's request constituted a breach of this obligation. As a result, the court granted the defendant's motion for a stay of the proceedings. The court also ordered that the proceedings be placed on the Inactive List, with a review date set for 13 December 2018, and that the plaintiff pay the defendant's costs.

In granting the stay, the court emphasised the importance of compliance with the statutory requirements for participation in the Lifetime Care and Support Scheme. The court held that the plaintiff's refusal to undergo the FIM assessment was a material factor in determining whether a stay should be granted. The court also noted that the plaintiff had the right to apply for a review of the stay order on three days' notice, providing an opportunity for the plaintiff to demonstrate compliance with the defendant's request or to challenge the validity of the stay order.