Insurance Australia Ltd v Marsh [2022] NSWCA 31

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Insurance Australia Ltd v Marsh [2022] NSWCA 31 Hearing dates: 17 February 2022 Date of orders: 07 March 2022 Decision date: 07 March 2022 Before: Basten JA at [1]; Macfarlan JA at [21]; White JA at [22] Decision: (1) Appeal allowed. (2) Set aside the orders of the court below of 4 June 2021. (3) In lieu thereof order that the summons be dismissed with costs. (4) Order that the first respondent pay the appellant's costs of the appeal and be granted an indemnity certificate under s 6 of the Suitors' Fund Act 1951 (NSW). Catchwords: ADMINISTRATIVE LAW – judicial review – jurisdictional error – Motor Accidents Compensation Act 1999 (NSW), s 63(3) – power requiring decision maker to consider whether there was reasonable cause to suspect material error in medical assessment – whether decision maker exceeded statutory role by determining asserted error on the merits ADMINISTRATIVE LAW – judicial review – jurisdictional error – Motor Accidents Compensation Act 1999 (NSW), s 63(3) – power requiring decision maker to consider whether there was reasonable cause to suspect material error in medical assessment – whether decision maker exceeded his bounds of authority by declining to refer a matter to a review panel where there was significant differences of opinion among medical practitioners ADMINISTRATIVE LAW – judicial review – jurisdictional error – Motor Accidents Compensation Act 1999 (NSW), s 63(3) – power requiring decision maker to consider whether there was reasonable cause to suspect material error in medical assessment – whether the inevitable result of the presence of conflicting medical opinions is that there must be reasonable cause to suspect that the medical assessment is incorrect in a material respect ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 (NSW), s 63(3) –– whether primary judge erred in ordering that the medical assessment be referred to a review panel rather than referring the matter back to a proper officer Legislation Cited: Civil Liability Act 2002 (NSW), s 5D Motor Accidents Compensation Act 1999 (NSW), ss 57, 58, 60, 61, 62, 63, 74, 81; Pt 3.4 Suitors' Fund Act 1951 (NSW), s 6 Supreme Court Act 1970 (NSW), s 69 Victorian Accident Compensation Act 1985 Motor Accident Permanent Impairment Guidelines, cl 1.6 Cases Cited: AAI Ltd t/as AAMI v Chan [2021] NSWCA 19; 95 MVR 166 Insurance Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287 Marsh v Insurance Group Ltd t/as NRMA Insurance Ltd [2021] NSWSC 619 Meeuwissen v Boden (2010) 78 NSWLR 143; [2010] NSWCA 253 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Category: Principal judgment Parties: Insurance Australia Ltd t/as NRMA Insurance Ltd (Appellant) Robert William Marsh (First Respondent) The President of the Personal Injury Commission (Second Respondent) Representation: Counsel: M A Robinson SC with O Dinkha (Appellant) C A W Hart (First Respondent) Submitting appearance for Second Respondent