Insurance Australia Ltd t/as NRMA Insurance v Cornish [2016] NSWSC 1583

Supreme Court New South Wales

Medium Neutral Citation: Insurance Australia Ltd t/as NRMA Insurance v Cornish [2016] NSWSC 1583 Hearing dates: 8 June 2016 Date of orders: 11 November 2016 Decision date: 11 November 2016 Jurisdiction: Common Law Before: Davies J Decision: (1) Summons dismissed.

(2) The Plaintiff should pay the First Defendant's costs. Catchwords: ADMINISTRATIVE LAW – judicial review – assessment by medical assessor – application under s 62 Motor Accidents Compensation Act 1999 for further referral – "additional relevant information" – video surveillance of claimant subsequent to assessment – claimant asserted to be engaging in surfing activities inconsistent with findings on assessment – refusal by proper officer to refer for further assessment – whether proper officer viewed video or relied on summary – whether the video and other material was additional relevant information – whether it was capable of a having a material effect on outcome of previous assessment – whether proper officer's reasons demonstrated error or legal unreasonableness – whether proper officer performed her statutory task – errors demonstrated – whether any utility in quashing decision and referring matter for reconsideration – claimant assessed at 25% WPI – additional information affected assessments totalling no more than 14% - outcome not capable of having a material effect on the outcome – summons dismissed Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) Cases Cited: Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182; 56 MVR 499 El-Kazzi v Allianz Australia Insurance Ltd [2014] NSWSC 927; 67 MVR 312 Garcia v Motor Accidents Authority (NSW) [2009] NSWSC 1056; 54 MVR 102 Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480; 66 MVR 69 Insurance Australia Ltd v Clewley [2015] NSWSC 1805; 74 MVR 345 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; 67 MVR 322 Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 Singh v Motor Accidents Authority of NSW (No 2) [2010] NSWSC 1443; 57 MVR 157 Category: Principal judgment Parties: Insurance Australia Ltd t/as NRMA Insurance (Plaintiff) Steven Gregory Cornish (First Defendant) State Insurance Regulatory Authority (Second Defendant) Representation: Counsel: M Robinson SC & A Naylor (Plaintiff) R Harrington (First Defendant) Submitting appearance (Second Defendant)