Shmailov v AAI Limited - [2020] NSWSC 887

Supreme Court

New South Wales

Medium Neutral Citation: Shmailov v AAI Limited [2020] NSWSC 887
Hearing dates: 19 May 2020
Date of orders: 10 July 2020
Decision date: 10 July 2020
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court declares that:
(1) The decision of the proper officer dated 29 September 2019 is vitiated by an error of law and jurisdictional error.
The Court makes an order:
(2) In the nature of certiorari removing into the Court the decision of the proper officer dated 29 September 2019 and quashing that decision.
The Court further orders that:
(3) The matter is remitted to the State Insurance Regulatory Authority to be determined according to law.
(4) The first defendant is to pay the plaintiff’s costs on an ordinary basis.

Catchwords:
ADMINISTRATIVE LAW – Judicial review – State Insurance Regulatory Authority – Review of the decision of a proper officer – Motor Accidents Compensation Act 1999 (NSW), s 63(3) – Whether the proper officer asked herself a wrong question by determining whether the assessment was incorrect in a material respect, not whether there was reasonable cause to suspect that it was

Legislation Cited:
Motor Accident Permanent Impairment Guidelines, cl 1.220
Motor Accidents Compensation Act 1999 (NSW), ss 44, 58, 62, 63(3), 131
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), r 59(4)

Cases Cited:
Attorney-General (NSW) v Quin (1990) 170 CLR 1; (1990) 93 ALR 1
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22
Craig v State of South Australia (1995) 184 CLR 163; (1995) 131 ALR 595
Elliott v Insurance Australia t/as NRMA Insurance [2014] NSWSC 1848
Meeuwissen v Boden [2010] NSWCA 253; 78 NSWLR 145
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; (1986) 66 ALR 299
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 136 ALR 481
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1

Category: Principal judgment
Parties: Leva Ari Shmailov (Plaintiff)
AAI Limited t/as AAMI (First Defendant)
State Insurance Regulatory Authority (Second Defendant)
Bec Ingleton Proper Officer of the Motor Accidents Medical Assessment Service (Third Defendant)
Representation:
Counsel:
R de Meyrick (Plaintiff)
J Turnbull SC (First Defendant)
Solicitors:
Grieve Watson Kelly Lawyers (Plaintiff)
Moray & Agnew Lawyers (First Defendant)
Crown Solicitor’s Office, Submitting Appearance (Second & Third Defendants)

File Number(s): 2019/335736
Publication restriction: Nil

Judgment

HER HONOUR: This is a judicial review of the decision of a proper officer of the State Insurance Regulatory Authority (“SIRA”).
By summons filed 25 October 2019, the plaintiff seeks firstly, an order pursuant to s 69 of the Supreme Court Act 1970 (NSW) setting aside the determination and reasons dated 29 September 2019 given by the proper officer of the Medical Assessment Service (“MAS”) appointed under the Motor Accidents Compensation Act 1999 (NSW) (“the

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.

Continue reading Shmailov v AAI Limited

Details

AGLC: Shmailov v AAI Limited [2020] NSWSC 887
Case: [2020] NSWSC 887
Decision Date: 10 July 2020

CaseChat Overview and Summary

In Shmailov v AAI Limited, the applicant sought judicial review of a decision made by the State Insurance Regulatory Authority (SIRA) regarding a motor accident claim. The applicant, Shmailov, contested the decision of SIRA's proper officer who had reviewed and upheld an assessment by the insurer, AAI Limited. The dispute centred on the proper officer's application of the Motor Accidents Compensation Act 1999 (NSW) and whether she correctly interpreted the scope of her review powers.

The primary legal issue was whether the proper officer correctly applied the statutory framework when reviewing the assessment. Specifically, the court had to determine whether the proper officer erred by focusing on whether the assessment was incorrect in a material respect, rather than considering whether there was reasonable cause to suspect the assessment was incorrect. This interpretation could significantly affect the extent of the proper officer's review authority and the criteria applied in such reviews.

The court found that the proper officer had indeed erred in her interpretation of the statutory language. By focusing on whether the assessment was incorrect in a material respect, the proper officer had asked herself the wrong question. The court held that the correct approach required the proper officer to consider whether there was reasonable cause to suspect that the assessment was incorrect. This interpretation aligned with the statutory intent to provide a more limited scope of review, focusing on reasonable suspicion rather than material incorrectness. Consequently, the court granted the applicant's application for judicial review, quashed the decision of the proper officer, and remitted the matter for reconsideration in light of the correct legal principles.

No further orders were made beyond the quashing and remittal of the decision, leaving the parties to address the matter anew in accordance with the court's directions.

Orders