Mutawe v QBE Insurance (Australia) Ltd [2025] NSWSC 19

Supreme Court New South Wales

Medium Neutral Citation: Mutawe v QBE Insurance (Australia) Ltd [2025] NSWSC 19 Hearing dates: 13 November 2024 Date of orders: 06 February 2025 Decision date: 06 February 2025 Jurisdiction: Common Law Before: Griffiths AJA Decision: (1) Set aside the decision of the third defendant dated 7 February 2024. (2) Remit the plaintiff's application under s 7.26 of the Motor Accident Injuries Act 2017 (NSW) to the second defendant for reconsideration according to law. (3) The first defendant is to pay the plaintiff's costs. Catchwords: TRAFFIC LAW AND TRANSPORT – Traffic law – Motor Accident Injuries Act 2017 (NSW), s 7.26 – where various injuries suffered by plaintiff referred for assessment by Personal Injury Commission – where medical assessor did not provide assessment of an injury – where medico-legal report in respect of that injury subsequently procured by insurer – where plaintiff applied for further medical assessment on basis of report, but certificate instead referred back to original medical assessor for correction under r 112 of Personal Injury Commission Rules 2021 (NSW) – where report not before or not referred to by medical assessor in course of r 112 assessment – where plaintiff's application for referral to review panel refused by delegate of President of Personal Injury Commission – whether delegate erred in concluding that report not required to be considered by medical assessor because it was not available at time of first assessment ADMINISTRATIVE LAW – Judicial review – summons seeking judicial review of decision of delegate of President of Personal Injury Commission for jurisdictional error and/or error of law on the face of the record – whether delegate misconstrued r 112 of Personal Injury Commission Rules – whether delegate misconceived effect of cll 67-73 of Procedural Direction PIC6 – whether delegate should have found that medical assessor did not conduct assessment in accordance with Motor Accident Guidelines contrary to s 7.21(1) of Motor Accident Injuries Act Legislation Cited: Motor Accident Guidelines (version 5.1), cll 6.18, 6.21 Motor Accident Injuries Act 2017 (NSW), ss 4.11, 6.27, 7.17, 7.20, 7.21, 7.23, 7.24, 7.26; Sch 2, cl 2(a) Motor Accident Injuries Regulation 2017 (NSW), reg 13 Motor Accidents Compensation Act 1999 (NSW), ss 58, 61, 62 Personal Injury Commission Act 2020 (NSW), s 21 Personal Injury Commission Rules 2021 (NSW), rr 103, 104, 105, 112 Personal Injury Commission of New South Wales, Procedural Direction PIC6 – Medical Assessments, cll 67, 68, 69, 70, 71, 72, 73, 76, 77 Supreme Court Act 1970 (NSW), s 69 Cases Cited: QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; (2013) 67 MVR 322 Texts Cited: Nil Category: Principal judgment Parties: Mohammad Mutawe (Plaintiff) QBE Insurance (Australia) Ltd (First Defendant) President of the Personal Injury Commission of New South Wales (Second Defendant) (submitting appearance) Catherine Freeman in her capacity as the President's Delegate under Section 7.26 of the Motor Accident Injuries Act 2017 (NSW) and Item 26 of Table of Delegates "A" of the Personal Injury Commission Act 2020 PIC Regulation and Scheme Regulations (Third Defendant) (submitting appearance) Representation: Counsel: E G Romaniuk SC / H K Wall (Plaintiff) M Allars SC (First Defendant)