Rutland v Allianz Australia Insurance Ltd [2014] NSWSC 1583

Supreme Court New South Wales

Medium Neutral Citation: Rutland v Allianz Australia Insurance Ltd [2014] NSWSC 1583 Hearing dates: 31/10/2014 Decision date: 14 November 2014 Jurisdiction: Common Law Before: Garling J Decision: (1) Order that the Review Panel Certificate and Reasons dated 13 March 2014 issued by the third defendant in matter 2013/02/1489 be set aside. (2) Order that the matter be referred to the second defendant for the appointment of a new Review Panel to undertake an assessment of the plaintiff in accordance with law. (3) First defendant to pay the plaintiff's costs. Catchwords: ADMINISTRATIVE LAW - judicial review - Medical Assessment Service - review panel - certificate of reasons - psychiatric injury whole person impairment of ten per cent - ADMINISTRATIVE LAW - judicial review - statutory function - review panel failed to discharge its statutory function because it failed to assess all matters afresh in assessing whole person impairment, whether - Motor Accidents Compensation Act 1999, s 36 - review to be conducted by way of a new assessment of all the matters with which the medical assessment is concerned - medical assessment guidelines - guidelines for the assessment of the degree of permanent impairment - review panel did not make any fresh assessment, whether - review panel relied on original assessor, whether - obligation of review panel - jurisdictional error - error on the face of the record - ADMINISTRATIVE LAW - judicial review - procedural fairness - failure to accord procedural fairness, whether - review panel to determine afresh the medical assessment - content of procedural fairness - confront applicant with inconsistencies - opportunity to respond Legislation Cited: Motor Accidents Compensation Act 1999 Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007 Supreme Court Act 1970 Cases Cited: Frost v Kourouche [2014] NSWCA 39 Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 McKee v Allianz Australian Insurance Ltd [2008] NSWCA 163; (2008) 71 NSWLR 609 Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 Wingfoot Aust Partners Pty Ltd v Kocak [2013] HCA 43 Category: Principal judgment Parties: Kelly Rutland (P) Allianz Australia Insurance Ltd (D1) Motor Accidents Authority of NSW (D2) The Medical Review Panel (D3) Representation: Counsel: E G Romanuik SC / T Hickey (P) J Gumbert (D1) Submitting Appearance (D2) Submitting Appearance (D3) Solicitors: Commins Hendriks (P) Sparke Helmore (D1) File Number(s): 2014/176677 Publication restriction: N/A