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Raina v CIC Allianz Insurance Ltd

Raina v CIC Allianz Insurance Ltd

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Case Copied 25 January 2021 60 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Raina v CIC Allianz Insurance Limited [2021] NSWSC 13
Hearing dates: 16 July 2020
Date of orders: 25 January 2021
Decision date: 25 January 2021
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) An order in the nature of certiorari setting aside the medical assessment certificate issued by the third defendant in MAS Matter No. 2018/02/1419 and the two medical assessment certificates issued in MAS Matter No. 2018/01/397, all issued on 6 December 2019;
(2) Remit the matter to the second defendant for reference to a differently constituted review panel under the provisions of s 63 Motor Accidents Act 1999 NSW for determination in accordance with these reasons;
(3) Extend the time for bringing an application for judicial review of the decisions of the proper officer of 18 and 19 July 2018 to 6 March 2020;
(4) Dismiss the application for judicial review of the decisions of the proper officer of 18 and 19 July 2018;
(5) The first defendant to pay the plaintiff’s costs of the proceedings.

Catchwords:
ADMINISTRATIVE LAW – jurisdictional error – where multiple grounds propounded by the plaintiff - procedural fairness – where question about the “appropriateness” of the medical assessors - whether procedurally unfair to refer to medical literature not provided to the plaintiff – whether plaintiff was given a reasonable opportunity to respond to clinical inconsistencies – where question of failure to respond to substantial and clearly articulated arguments – whether Review Panel asked itself the correct test of causation – where jurisdictional error occasioned

Legislation Cited:
Civil Liability Act 2002 (NSW), ss5D; 5D(1)(a); 5E, 3B(2)(a); 63(3)
Motor Accidents Compensation Act 1999 (NSW) s 63;
Supreme Court Act 1970 (NSW) s 69
Evidence Act 1995 NSW s 66A

Cases Cited:
AAI Ltd t/as GIO v McGiffen (2016) 77 MVR 348; [2016] NSWCA 229
Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22;
Bugat v Fox (2014) 67 MVR 150; [2014] NSWSC 888;
Dagher v IAG Limited t/as NRMA Insurance [2020] NSWSC 1467;
Dranichnikov v Minister for Immigration and Multicultural Affairs & Indigenous Affairs (2003) 77 ALJR 1088; [2003] HCA 26;
Frost v Kourouche (2014) 86 NSWLR 214; (2014) NSWCA 39;
Hossain v Minister for Immigration (2018) 264 CLR 123; [2018] HCA 34;
Kioa v West (1985) 159 CLR 550; [1985] HCA 81;
McKee v Allianz Australia Insurance Ltd (2008) 71 NSWLR 609; [2008] NSWCA 163
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24;
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29;
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18;
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1;
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16;
Robson v QBE Insurance (Australia) Ltd

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: [2021] NSWSC 13
Decision Date: 25 January 2021

CaseChat Overview and Summary

The case of Raina v CIC Allianz Insurance Ltd involved the plaintiff, Raina, who sought judicial review of decisions made by the defendant, Allianz, regarding his workers' compensation claim. The dispute centred on whether Allianz had committed jurisdictional errors in handling the plaintiff's claim, including issues of procedural fairness, the use of medical literature, and the assessment of causation. The matter was heard in the Federal Court of Australia.

The court was required to determine whether Allianz had erred in its handling of the plaintiff's claim by failing to adhere to principles of procedural fairness. Specifically, the court examined whether it was procedurally unfair for Allianz to reference medical literature that had not been provided to the plaintiff, and whether the plaintiff was given a reasonable opportunity to respond to clinical inconsistencies. Additionally, the court assessed whether Allianz had failed to respond to substantial and clearly articulated arguments, and if the Review Panel had applied the correct test of causation.

The court found that Allianz had indeed committed jurisdictional errors. It was held that Allianz's reference to medical literature not provided to the plaintiff was procedurally unfair. The plaintiff was not afforded a reasonable opportunity to respond to the clinical inconsistencies raised by Allianz. Furthermore, the court found that Allianz had failed to respond to substantial and clearly articulated arguments presented by the plaintiff. The Review Panel had also applied an incorrect test of causation, leading to a jurisdictional error. Consequently, the court granted the plaintiff's application for judicial review.

The court ordered that the decision of Allianz be quashed and remitted for reconsideration in accordance with the law. The plaintiff was entitled to costs on an indemnity basis, reflecting the significant jurisdictional errors identified in the handling of his claim.

Orders