Raina v CIC Allianz Insurance Limited [2021] NSWSC 13

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 [2020] NSWSC 1558; The Queen v Australian Broadcasting Tribunal and Ors; ex parte Hardiman & Ors (1980) 144 CLR 13; [1980] HCA 13; Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369; Wingfoot Australia Partners v Kocak (2013) 252 CLR 480; [2013] HCA 43; International Finance Trust Company Limited v NSW Crime Commission (2009) 240 CLR 319; [2009] HCA 49 Category: Principal judgment Parties: Roshaan Raina (Plaintiff) CIC Allianz Insurance Limited (First Defendant) State Insurance Regulatory Authority (Second Defendant) Ian Cameron in his capacity as a medical assessor of SIRA, Clive Kenna in his capacity as a medical assessor of SIRA, Geoffrey Stubbs in his capacity as a medical assessor of SIRA, comprising a "Review Panel" (Third Defendant) Representation: Counsel: M. Robinson SC with J. Gumbert (Plaintiff) K. Rewell SC (Defendant)