Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance [2021] NSWSC 804

Supreme Court New South Wales

Medium Neutral Citation: Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance [2021] NSWSC 804 Hearing dates: 30 June 2021 Date of orders: 1 July 2021 Decision date: 01 July 2021 Jurisdiction: Common Law Before: Walton J Decision: The Court orders: (1) The summons filed on 28 November 2020 is amended in accordance with the amended summons filed on 30 June 2021 removing the SIRA Review Panel as the second defendant, and replacing it with the President of the Personal Injury Commission of New South Wales. (2) The certificate, the decision and statement of reasons for decision of the second defendant dated 28 August 2020 are vitiated by jurisdictional error and is declared void and of no effect. (3) The certificate, the decision and the statement of reasons for the decision of the second defendant dated 28 August 2020 are set aside. (4) The matter is remitted to the second defendant to be determined according to law. (5) No order as to costs. Catchwords: CIVIL PROCEDURE – parties – substitution of party pursuant to legislation – functions that were previously performed by SIRA conferred on the President of the Personal Injury Commission – savings and transitional provisions of the Personal Injury Commission Act 2020 – leave to amend summons granted ADMINISTRATIVE LAW – judicial review – jurisdictional error – application to set aside – declaratory relief – certiorari – remittal of matter back to the President of the Personal Injury Commission of New South Wales Legislation Cited: Civil Liability Act 2002 (NSW) Motor Accident Injuries Act 2017 (NSW) Personal Injury Commission Act 2020 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: AAI Ltd t/as GIO v McGiffen (2016) 77 MVR 348; [2016] NSWCA 229 Briggs v IAG Limited t/as NRMA Insurance [2020] NSWSC 1318 Bugat v Fox (2014) 67 MVR 150; [2014] NSWSC 888 Commissioner for ACT Revenue v Alphaone (1994) 49 FCR 576; [1994] FCA 293 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 Owen v Motor Accidents Authority of NSW (2012) 61 MVR 245; [2012] NSWSC 650 Pascoe v Mechita Pty Ltd [2019] NSWSC 454 Category: Principal judgment Parties: Ronald James Kinchela (Plaintiff) Insurance Australia Group Ltd t/as NRMA Insurance (First Defendant) The President of the Personal Injury Commission of New South Wales (Second Defendant) Representation: Counsel: D J Hooke SC with E E Grotte (Plaintiff)