Huni v Allianz Australia Insurance Ltd [2014] NSWSC 1584

Supreme Court New South Wales

Medium Neutral Citation: Huni v Allianz Australia Insurance Ltd [2014] NSWSC 1584 Hearing dates: 17/10/2014 Decision date: 14 November 2014 Jurisdiction: Common Law Before: Garling J Decision: (1) Decision of the third defendant made in matter number 2013/02/2823 on 19 February 2014 be set aside. (2) Matter remitted to the second defendant for determination of the application of the plaintiff for review submitted on 20 December 2013 to be considered and determined by the Proper Officer of the Motor Accidents Authority in accordance with law. (3) Direct that the Proper Officer who made the determination on 19 February 2014, not carry out the further determination, in the matter 2013/02/2823. (4) Order the first defendant to pay the plaintiff's costs. Catchwords: ADMINISTRATIVE LAW - judicial review - appeal from decision of proper officer - dismissal of application for review of medical assessor - proper officer not satisfied there was reasonable cause to suspect medical assessment was incorrect in a material respect - whether proper officer misapprehended nature of limits of functions and powers under Motor Accidents Compensation Act 1999 - whether proper officer should have been satisfied that there was reasonable cause to suspect medical assessment was incorrect in a material respect - whether decision of proper officer was infected with jurisdictional error or error of law on the face of the record of the decision - definition of impairment - assessor obliged to take shoulder impairment into account in assessing whole person impairment - assessor obliged to reach a conclusion notwithstanding inconsistency in range of motion - proper officer ought to have had a suspicion that medical assessment was incorrect in a material respect - proper officer misapplied Guidelines - error demonstrated - remitted for fresh determination Legislation Cited: Motor Accidents Compensation Act 1999 Interpretation Act 1987 Cases Cited: Nguyen v Motor Accidents Authority of NSW [2011] NSWSC 351; (2011) 58 MVR 296 Category: Principal judgment Parties: Memory Huni (P) Allianz Australia Insurance Ltd (D1) Motor Accidents Authority of NSW (D2) The Proper Officer of the Motor Accidents Authority of NSW (D3) Representation: Counsel: S Gibb SC / S McSpedden (P) K Rewell SC (D1) Submitting appearance (D2) Submitting appearance (D3) Solicitors: Napier Keen Solicitors (P) Sparke Helmore Lawyers (D1) Crown Solicitor's Office (NSW) (D2, D3) File Number(s): 2014/150760 Publication restriction: N/A