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)