Bannister v Allianz Australia Insurance Ltd [2015] NSWSC 796

Supreme Court New South Wales

Medium Neutral Citation: Bannister v Allianz Australia Insurance Ltd [2015] NSWSC 796 Hearing dates: 1 April 2015 Decision date: 19 June 2015 Jurisdiction: Common Law - Administrative Law Before: Hall J Decision: (1) A declaration that the decision of the third defendant, the Proper Officer appointed by the Motor Accidents Authority of New South Wales made on 6 June 2014 pursuant to s 62(1A) of the Motor Accidents Compensation Act 1999 to refer the plaintiff for further medical assessment under s 62 of that Act was made contrary to law.

(2) The decision of the Proper Officer made on 6 June 2014 referred to in Order 1 be set aside.

(3) A declaration that the medical assessment of the fourth defendant made on 31 July 2014 in MAS Matter Number 2014/04/1557 by way of Further Certificate issued under Part 3.4 of the MAC Act 1999 as to the degree of permanent impairment of the plaintiff was made contrary to law.

(4) The Further Certificate in MAS Matter Number 2014/04/1557 issued by the fourth defendant on 31 July 2014 referred to in Order 2 is set aside.

(5) Leave to the parties to apply with respect to costs or other ancillary matters. Catchwords: ADMINISTRATIVE LAW – Judicial review of two administrative decisions – Review of decision of Proper Officer, Motor Accidents Authority of New South Wales to refer plaintiff's case for further medical assessment under s 62(1A) Motor Accidents Compensation Act 1999 – Review of decision made by medical assessor following referral for further medical assessment – As to the decision of the Proper Officer to refer for further assessment – Whether there was additional relevant information to permit decision of Proper Officer to make referral under s 62(1A) – Need for Proper Officer to consider whether information specified on application for further assessment meets the criteria in s 62(1A) – Not sufficient for Proper Officer to accept applicant's submission that information meets the criteria – Medical report relied upon in application for further assessment made by insurer was not 'additional relevant information' in the required sense – First challenged decision of Proper Officer to make referral found to have been affected by an error – As to the second decision by way of medical assessment – Whether Medical Assessor had considered all relevant criteria or differentiators listed in relation to the relevant DRE Category in the AMA Guides to the Evaluation of Permanent Impairment – In particular whether the medical assessor was required to have considered and determined the relevant criteria or differentiator that there be 'no indication of impairment' by reason of illness or accident for a person to be assessed as falling within DRE Category I – Held that the absence of any reference and consideration in the assessor's Reasons is consistent with there having been a failure to consider a relevant matter which the medical assessor was required to assess in performing his statutory task – The assessment of the Medical Assessor was not made according to law – Decision of Proper Officer set aside – Certificate issued by Medical Assessor set aside Legislation Cited: Accidents Compensation Act 1985 (Vic) Medical Practice Act 1992 Migration Act 1958 (Cth) Motor Accidents Compensation Act 1999 Supreme Court Act 1970 Cases Cited: Alavanja v NRMA Insurance [2010] NSWSC 1182 Buck v Bavone (1976) 135 CLR 110 Crnobrnja v Motor Accidents Authority of New South Wales [2010] NSWSC 633; (2010) 55 MVR 579 Cupac v Motor Accidents Authority (NSW) (2010) 56 MVR 82 D'Amore v ICAC [2013] NSWCA 187 Garcia v Motor Accidents Authority of NSW [2009] NSWSC 1056 Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480; (2013) 66 MVR 69 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 QBE Insurance v Miller [2013] NSWCA 442; 67 MVR 322 R v Connell; ex parte Hetton Bellbird Collieries Limited (1944) 69 CLR 407 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; 88 ALJR 52 Category: Principal judgment Parties: John Herbert Bannister (Plaintiff) Allianz Australia Insurance Limited (First Defendant) The Motor Accidents Authority of New South Wales (Second Defendant) Jane Probert as a Proper Officer appointed by the Motor Accidents Authority of New South Wales (Third Defendant) Dr Mark Burns as a medical assessor appointed by the Motor Accidents Authority of New South Wales (Fourth Defendant) Representation: Counsel: EG Romaniuk SC; MA Cleary (Plaintiff) MA Robinson SC; A Poljak (First Defendant) Submitting Appearances (Second, Third and Fourth Defendants)