Elliott v Insurance Australia t/as NRMA Insurance [2014] NSWSC 1848

Supreme Court New South Wales

Medium Neutral Citation: Elliott v Insurance Australia t/as NRMA Insurance [2014] NSWSC 1848 Hearing dates: 28/11/2014 Decision date: 28 November 2014 Jurisdiction: Common Law Before: Campbell J Decision: (1)Set aside the decision of the Acting Proper Officer of the Motor Accidents Authority made on 7 May 2014 declining to refer the application for review to a review panel. (2)Remit the matter to the Motor Accidents Authority, Medical Assessment Service, for reconsideration of the decision required by s 63(3) of the Motor Accidents Compensation Act 1999 in accordance with the law, and (3)The first defendant is to pay the plaintiff's costs of and incidental to the proceedings on the usual basis forthwith after they have been agreed or assessed. Catchwords: ADMINISTRATIVE LAW - application for judicial review - whether decision of the proper officer of the Motor Accidents Authority infected by jurisdictional error - whether proper officer asked himself an incorrect question when deciding whether to refer a dispute to a medical appeal panel - whether proper officer went beyond gatekeeper function Legislation Cited: Accident Compensation Act 1985 (Vic) Motor Accidents Compensation Act 1999 (NSW), ss 63 Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 Meeuwissen v Boden [2010] NSWCA 253; 78 NSWLR 145 Minister for Immigration and Citizenship v SZMDS & Anor [2010] HCA 16; 240 CLR 611 QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 43; 88 ALJR 52 Category: Principal judgment Parties: Grant Andrew Elliott (Plaintiff) Insurance Australia Limited t/as NRMA Insurance (First Defendant) Motor Accidents Authority of New South Wales (Second Defendant) John Ashwell in his capacity as a medical assessor of the Motor Accidents Authority (Third Defendant) Representation: Counsel: M J Perry (Plaintiff) J Catsanos (Defendant) Solicitors: Fishburn Watson O'Brien (Plaintiff) Moray & Agnew (Defendant) File Number(s): 2014/00192778