Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71 Hearing dates: 13 March 2024 Date of orders: 04 April 2024 Decision date: 04 April 2024 Before: Leeming JA at [1]; Kirk JA at [2]; Stern JA at [3]. Decision: (1) The appeal is dismissed. (2) Appellant to pay the first respondent's costs of the appeal. Catchwords: TRAFFIC LAW AND TRANSPORT – traffic law – motor accident legislation – Motor Accident Injuries Act 2017 (NSW) – meaning of "medical dispute" under Act – actual medical dispute between the claimant and the insurer about the relevant medical assessment matter – question of fact depending on the ambit of dispute between the parties at the relevant time ADMINISTRATIVE LAW – judicial review – jurisdictional error – further medical assessment under Motor Accident Injuries Act 2017 (NSW) – where claimant underwent surgery for cervical spine injury – whether obliged to consider if surgery itself rendered injury "non-minor" – not included in "medical dispute" referred again for assessment – no obligation on medical assessor ADMINISTRATIVE LAW – judicial review – jurisdictional error – Motor Accident Injuries Act 2017 (NSW) – decision of delegate refusing to refer decision of medical assessor to review panel – where primary judge dismissed application for review of delegate's decision on basis that there was no jurisdictional error in medical assessor's decision – whether primary judge erred – question for the primary judge did not turn on question of whether there was jurisdictional error in decision of medical assessor Legislation Cited: Motor Accident Injuries Act 2017 (NSW) Motor Accidents Compensation Act 1999 (NSW) Personal Injury Commission Act 2020 (NSW), ss 18, 33, 65(2)(a) Supreme Court Act 1970 (NSW), s 69 Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 319 Motor Accident Injuries Regulation 2017 (NSW) Personal Injury Commission Regulation 2020 (NSW), reg 6 Cases Cited: Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 Dean v Phung [2012] NSWCA 223 Dominice v Allianz Australia Insurance Ltd [2017] NSWCA 171 Insurance Australia Ltd v Marsh [2022] NSWCA 31 McKee v Allianz Australia Insurance Ltd (2008) 71 NSWLR 609; [2008] NSWCA 163 Meeuwissen v Boden (2010) 78 NSWLR 143; [2010] NSWCA 253 Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468; [2016] HCA 19 Motor Accidents Authority of NSW v Mills (2010) 78 NSWLR 125; [2010] NSWCA 82 QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 Scone Race Club Ltd v Cottom [2024] NSWCA 34 Skates v Hills Industries Ltd [2021] NSWCA 142 Texts Cited: State Insurance Regulatory Authority, Motor Accident Guidelines (version 8.2) Category: Principal judgment Parties: Nicolas Mandoukos (Appellant)