Insurance Australia Group Ltd t/as NRMA Insurance v Welsh [2021] NSWSC 1368

Supreme Court New South Wales

Medium Neutral Citation: Insurance Australia Group Ltd t/as NRMA Insurance v Welsh [2021] NSWSC 1368 Hearing dates: 1 October 2021 Date of orders: 28 October 2021 Decision date: 28 October 2021 Jurisdiction: Common Law Before: Macfarlan JA Decision: (1) Order that the time for the plaintiff to bring these proceedings by way of judicial review of the certificate of the third defendant dated 4 October 2020 be extended to the date upon which its summons was filed. (2) Order that that certificate be set aside. (3) Order that the matter be remitted to the second defendant to be referred to a medical assessor for determination according to law. (4) Order that the decision of the fourth defendant of 3 February 2021 be set aside. (5) Order that the first defendant pay the plaintiff's costs of these proceedings. Catchwords: ADMINISTRATIVE LAW – judicial review – motor accident – review of certificate of medical assessor – review of decision of proper officer to refuse referral to review panel – certificate does not clearly state degree of permanent impairment attributable to motor accident – failure to conform with regulatory requirements – error of law on face of record – proper officer ought to have suspected that certificate incorrect in material respect – certificate and decision set aside and matter remitted Legislation Cited: Civil Liability Act 2002 (NSW), s 31 Motor Accident Injuries Act 2017 (NSW) Motor Accidents Compensation Act 1999 (NSW), s 44, Pt 3.4, ss 131, 132 Personal Injury Commission Act 2020 (NSW) Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), r 59.10 Cases Cited: Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22 Robson v QBE Insurance (Australia) Ltd [2020] NSWSC 1558 Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 Stanizzo v AAI Limited trading as GIO [2021] NSWSC 1077 Category: Principal judgment Parties: Insurance Australia Group Limited t/as NRMA Insurance (Plaintiff) Mr Matthew Welsh (First Defendant) The President of the Personal Injury Commission of New South Wales (Second Defendant) Dr Robert Gertler in his capacity as a Medical Assessor appointed by the State Insurance Regulatory Authority "SIRA" (Third Defendant) Jeremy Lum in his capacity as a Proper Officer appointed by SIRA (Fourth Defendant) Representation: Counsel: K Rewell SC (Plaintiff) T Saunders (First Defendant) Submitting appearances (Second, Third and Fourth Defendants)