Bell v Allianz Insurance Australia Ltd [2022] NSWSC 1108

Supreme Court New South Wales

Medium Neutral Citation: Bell v Allianz Insurance Australia Ltd [2022] NSWSC 1108 Hearing dates: 18 August 2022 Date of orders: 18 August 2022 Decision date: 18 August 2022 Jurisdiction: Common Law Before: Basten AJ Decision: (1) Set aside the decision of the delegate of the President of the Personal Injury Commission of 26 August 2021 refusing to refer the plaintiff's application for review of a medical assessment certificate. (2) Direct that the President (or his delegate) determine the plaintiff's application for review according to law. Catchwords: TRAFFIC LAW AND TRANSPORT – motor accident – personal injury claim – medical assessment for psychological injury – whether cause of injury part of motor accident – whole person impairment not assessed – application to review medical assessment certificate – application rejected by President's delegate – Motor Accident Injuries Act 2017 (NSW), s 7.26 ADMINISTRATIVE LAW – failure to exercise statutory function – no power of medical assessor to determine scope of "motor accident" – failure of medical assessor to assess whole person impairment – failure of delegate to find reasonable cause to suspect assessment incorrect in a material respect COSTS – judicial review – defendant insurer submitted – submitting appearance filed promptly – insurer not responsible for error of delegate – no costs order against defendant – application by plaintiff for certificate under Suitors' Fund Act 1951 (NSW) – whether delegate of President a "court" – indemnity certificate only available to defendant Legislation Cited: Motor Accident Injuries Act 2017 (NSW), ss 1.4, 7.26, 7.36 Motor Accidents Compensation Act 1999 (NSW), ss 62, 63 Personal Injury Commission Act 2020 (NSW), s 10 Suitors' Fund Act 1951 (NSW), ss 6, 6C Cases Cited: AAI Limited v State Insurance Regulatory Authority of New South Wales (formerly the Motor Accidents Authority of New South Wales) [2016] NSWCA 368 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480; 66 MVR 69 Lou v IAG Ltd t/as NRMA Insurance (2019) 101 NSWLR 606; [2019] NSWCA 319 Meeuwissen v Boden (2010) 78 NSWLR 143; [2010] NSWCA 253 Minister for Home Affairs v DUA16 [2020] HCA 46; 95 ALJR 54 Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497 Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 Texts Cited: ** Category: Principal judgment Parties: John Bell (Plaintiff) Allianz Australia Insurance Ltd (First Defendant) Tajan Baba (in the capacity of Delegate of the Third Defendant) (Second Defendant) President, Personal Injury Commission of New South Wales (Third Defendant) Representation: Counsel: Mr J Catsanos SC / Mr D Adhikary (Plaintiff)