Annalysse Shantel Stanton v Jasmine Winning [2022] NSWDC 104

District Court New South Wales

Medium Neutral Citation: Annalysse Shantel Stanton v Jasmine Winning [2022] NSWDC 104 Hearing dates: 30 March 2022 Date of orders: 11 April 2022 Decision date: 11 April 2022 Jurisdiction: Civil Before: Priestley SC, DCJ Decision: See [55 - 56] Legislation Cited: Motor Accidents Compensation Act of 1999 (NSW) Personal Injury Commission Act 2020 (NSW) Motor Accidents Injuries Act 2017 (NSW) State Insurance and Care Governance Act 2015 (NSW) Judiciary Act 1903 (NSW) The Australian Constitution Cases Cited: Ritchie v Nominal Defendant NSWDC unrep dated 5.11.21 Crouch v Commissioner for Railways (Qld) (1985) 62 ALR 1. Burns v Corbett [2017] NSWCA 3 Category: Procedural rulings Parties: Annalysse Shantel Stanton (Plaintiff) Jasmine Winning (Defendant) Representation: Campbell Solicitor for the Plaintiff Wilson Counsel for the Defendant. File Number(s): 2017/00200851 Publication restriction: Unrestricted

Contents Introduction The basis of the dismissal by the PIC Issues NRMA is not part of the state of NSW Other issues Who are the parties to the medical dispute? Summary and conclusions Orders

Introduction 1. On 31 May 2014 a motor vehicle accident occurred. The at fault driver was the defendant to these proceedings and the mother of the plaintiff passenger, who sues by her tutor, her father, as she is a minor. Both the plaintiff and defendant reside in Queensland. The relevant legislation governing the making of the claim given the date of the accident is the Motor Accidents Compensation Act of 1999 (MACA). The defendant admits a breach of duty of care. 2. As required by MACA, the plaintiff gave notice of her claim by way of a form dated 31 July 2014. The Court was told the claim was exempt from the former Claims Assessment and Resolution Service (CARS) due to the plaintiff being a minor. The plaintiff could therefore commence the proceedings in this Court, and did so by way of a statement of claim dated 3 July 2017. 3. After proceedings were commenced in the Court a dispute arose between the parties as to whether the degree of permanent impairment of the plaintiff as a result of the injury caused by the motor accident is greater than 10%. The dispute was the subject of an application by the Plaintiff for assessment of permanent impairment in accordance with s60 of MACA. The assessment was initially to be carried out by the Medical Assessment Service (MAS), but was ultimately dealt with by its successor, the Personal Injuries Commission (PIC). This dispute is variously referred to as "the compensation matter application", a medical assessment matter (s58) and a medical dispute (s57). The determination of the dispute is significant because MACA provides that the plaintiff cannot make a claim for non-economic loss unless the injuries she suffered are assessed as being 10% or more of what is referred to as a whole person impairment. 4. The application was dismissed by the PIC on 8 March 2022. 5. Before the Court is a motion dated 22 March 2022 filed by the plaintiff and seeking orders including for what is described as "the compensation matter application" (hereafter to be referred to as the "medical dispute") to be remitted to the PIC. There is no dispute between the parties in respect to the making of such an order. Both parties argue that the Court should make a finding that the application of the plaintiff initially before MAS and subsequently before the PIC does not invoke federal jurisdiction. On that basis the parties seek an order under section 26(5) of the Personal Injury Commission Act (PIC Act) that the matter be remitted to be determined by the PIC.