Dominice v Allianz Insurance [2016] NSWSC 1241

Supreme Court New South Wales

Medium Neutral Citation: Dominice v Allianz Insurance [2016] NSWSC 1241 Hearing dates: 31 August 2016 Date of orders: 31 August 2016 Decision date: 31 August 2016 Jurisdiction: Common Law - Administrative Law Before: Fagan J Decision: 1. The summons is dismissed. 2. The plaintiff is to pay the defendants costs. Catchwords: ADMINISTRATIVE LAW – judicial review of decision to refer application to panel of medical assessors – Motor Accidents Compensation Act 1999 (NSW), s 63(3) – inconsistencies in clinical findings and observations – Permanent Impairment Guidelines 2007 (NSW), cl 1.43 – whether error of law on the face of the record arising from failure to consider whether medical assessment would have differed had inconsistencies been brought to claimant's attention – whether proper officer erred by considering non-compliance with cl 1.43 as cause for reasonable suspicion that medical assessment was incorrect in a material respect – whether precondition in s 63(3) is a jurisdictional fact – whether proper officer's decision was unreasonable

STATUTORY INTERPRETATION – construction of Permanent Impairment Guidelines (NSW), cl 1.43 – purpose of assessor's duty to bring inconsistencies to claimant's attention – whether procedural fairness afforded by cl 1.43 limited to claimant's benefit Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) Permanent Impairment Guidelines 2007 (NSW) Cases Cited: Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24 Elliott v Insurance Australia t/as NRMA Insurance [2014] NSWSC 1848 Frost v Kourouche [2014] NSWCA 39 Jaksic v Insurance Australia Ltd, trading as NRMA [2013] NSWSC 1141 Minister For Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32 QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8 Category: Principal judgment Parties: Jessye Dominice (Plaintiff) Allianz Australia Insurance trading as Allianz Insurance (1st Defendant) State Insurance Regulatory Authority (2nd Defendant) Representation: Counsel: Mr Adrian Canceri (Plaintiff) Ms Jnana Gumbert (1st Defendant)