Insurance Aust v Milton [2015] NSWSC 1392

Supreme Court New South Wales

Medium Neutral Citation: Insurance Aust v Milton [2015] NSWSC 1392 Hearing dates: 7 August 2015; further written submissions filed 13 August 2015 Date of orders: 25 September 2015 Decision date: 25 September 2015 Jurisdiction: Common Law Before: Beech-Jones J Decision: (1) Pursuant to Uniform Civil Procedure Rule 59.10(2) the time in which the plaintiff may challenge the FIM Assessment dated 28 November 2014 be extended up to and including 23 April 2015. (2) The Summons be dismissed. (3) The Plaintiff pay the First Defendant's costs of the proceedings; and (4) There be no order as to the Second and Third Defendants' costs of the proceedings. Catchwords: ADMINISTRATIVE LAW – Lifetime Care and Support Scheme – judicial review of decision of Review Panel refusing Plaintiff insurer's application for First Defendant to join scheme – whether Review Panel erred in applying test for connection between brain injury and functional incapacity – alleged error immaterial – whether Review Panel's reasons adequate – alleged failure to address inconsistencies in First Defendant's histories to doctors – alleged failure to address First Defendant's stated unwillingness to join scheme – ground rejected – misconceives function of Review Panel – proceedings dismissed. Legislation Cited: - Accidents Compensation Act 1985 (Vic) – s 68 - Interpretation Act 1987 - Motor Accidents Compensation Act 1999 – s 141A(1) - Motor Accidents (Lifetime Care and Support) Act 2006 – s 7, s 8, s 12, s 13, s 14, s 15 - Supreme Court Act 1970 – s 69 Cases Cited: - AAI Limited v Ali [2015] NSWSC 1068 - AAI Limited v Fitzpatrick [2015] NSWSC 1108 - Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 - Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 - Craig v State of South Australia [1995] HCA 58; 184 CLR 163 - Daly v Thiering [2013] HCA 45; 249 CLR 381 - Frost v Kourouche [2014] NSWCA 39; 86 NSWLR 214 - Hot Holdings Pty Ltd v Creasy [1996] HCA 44; 185 CLR 149 - Nay v SAR & H [1937] CPD 363 - Peet v NRMA Insurance Ltd [2015] NSWSC 558 - Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 - Rodger v De Gelder [2015] NSWCA 211 - Southern Cross Airline Holdings Ltd v Arthur Andersen & Co (a firm) [1998] ACL 325 FC 87; BC9800953 - SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609 - Thiering v Daly [2011] NSWSC 1345; 83 NSWLR 498 - Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 Category: Procedural and other rulings Parties: Insurance Australia Ltd – Plaintiff Trent Nathan Milton – First Defendant Lifetime Care and Support Authority of NSW – Second Defendant Dr Sophia Lahz, Dr Adeline Hodgkinson, Dr Michael Rochford, in their capacity as a Review Panel and in their capacity as a FIM Assessment Panel of the LCSA – Third Defendants Representation: Counsel: M.A. Robinson SC, B. Kelleher – Plaintiff K. Rewell SC, P. Frame – First Defendant N/A – Second and Third Defendants (Submitting appearances filed on 07.05.15)