Insurance Commission of Western Australia v Gargoura [2020] NSWSC 1786

Supreme Court New South Wales

Medium Neutral Citation: Insurance Commission of Western Australia v Gargoura [2020] NSWSC 1786 Hearing dates: 9 December 2020 Date of orders: 9 December 2020 Decision date: 10 December 2020 Jurisdiction: Common Law Before: Adamson J Decision: (1) Set aside the certificate issued by the third defendant dated 23 March 2020. (2) Remit the matters the subject of the review by the third defendant to the second defendant for referral to a differently constituted review panel for determination in accordance with law. (3) Order the first defendant to pay the plaintiff's costs of the proceedings. (4) Grant the first defendant a certificate under s 6 of the Suitors' Fund Act 1951 (NSW). Catchwords: ADMINISTRATIVE LAW — Error of law on the face of the record — Right to reasons — Motor Accidents Compensation Act 1999 (NSW) — Whether Review Panel failed to set out sufficient reasons with respect to causation and pre-existing impairment ADMINISTRATIVE LAW — Procedural fairness — Failure to respond to substantial and clearly articulated argument — Where plaintiff argued that first defendant had a pre-existing injury — Whether Review Panel failed to engage with plaintiff's argument ADMINISTRATIVE LAW — Jurisdictional error — Whether Review Panel failed to apply Guidelines in determining causation Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), ss 44, 57, 58, 61, 63, 65, 131, 133 Suitors' Fund Act 1951 (NSW), s 6 Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 59.10 Cases Cited: Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; (2012) 61 MVR 443 Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22 Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Pham v NRMA Insurance Ltd [2014] NSWCA 22; (2014) 66 MVR 152 Rodger v De Gelder [2015] NSWCA 211; (2015) 71 MVR 514 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Texts Cited: State Insurance Regulatory Authority, Medical Assessment Guidelines (11 July 2008), cll 13.2, 16.24 State Insurance Regulatory Authority, Motor Accident Permanent Impairment Guidelines (1 June 2018), cll, 1.5–1.7, 1.17, 1.18, 1.31–1.33 Category: Principal judgment Parties: Insurance Commission of Western Australia (ABN 29 939 126 359) (Plaintiff) Elias Michael Gargoura (First defendant) State Insurance Regulatory Authority (Second defendant) Margaret Gibson in her capacity as a medical assessor of the State Insurance Regulatory Authority, Shane Moloney in his capacity as a medical assessor of SIRA, Les Barnsley in his capacity as a medical assessor of SIRA, comprising the medical assessors review panel (Third defendant) Representation: Counsel: M Robinson SC / J Gumbert (Plaintiff) J Jobson (First defendant) Submitting appearances (Second and Third defendants)