Insurance Australia Ltd t/as NRMA Insurance v Taylor [2017] NSWSC 507

Supreme Court New South Wales

Medium Neutral Citation: Insurance Australia Ltd t/as NRMA Insurance v Taylor [2017] NSWSC 507 Hearing dates: 27 April 2017 Date of orders: 05 May 2017 Decision date: 05 May 2017 Jurisdiction: Common Law Before: Davies J Decision: (1) An order in the nature of certiorari quashing the order of the Third Defendant made 31 October 2016.

(2) An order in the nature of mandamus remitting the matter to the Second Defendant for allocation to a different claims assessor to determine the Plaintiff's exemption application in accordance with law.

(3) The First Defendant is to pay the Plaintiff's costs of the proceedings.

(4) The First Defendant is to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise so entitled. Catchwords: ADMINISTRATIVE LAW – judicial review – grounds for review – assessment by CARS assessor under Motor Accidents Compensation Act – application by insurer for exemption from assessment – allegation of false or misleading statement in a material particular in relation to injuries – claimant asserted injuries to back and left shoulder in accident - statements made by claimant to various doctors of no previous injuries to back and left shoulder – statements asserted to be false or misleading by reason of physiotherapy records – whether assessor asked and answered the correct question – whether claim not suitable for assessment in CARS – whether assessor constructively failed to exercise her jurisdiction – whether adequate reasons – significance of procedure for assessment at CARS – whether evidence should be given in court on oath and subject to cross-examination – error demonstrated – decision quashed – matter returned to State Insurance Regulatory Authority to be determined in accordance with law Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) Suitors' Fund Act 1951 (NSW) Cases Cited: AAMI Ltd v Ali [2012] NSWSC 969 Allianz Australia Insurance Ltd v Tarabay (2013) 62 MVR 537; [2013] NSWSC 141 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 Insurance Australia Limited t/as NRMA Insurance v Banos [2013] NSWSC 1519; (2013) 65 MVR 312 Insurance Australia Limited t/as NRMA Insurance Limited v Milton [2016] NSWSC 1521 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 Zahed v IAG Limited (t/as NRMA Insurance) [2016] NSWCA 55; (2016) 75 MVR 1 Zurich Australian Insurance Ltd v MAA [2006] NSWSC 645 Category: Principal judgment Parties: Insurance Australia Ltd t/as NRMA Insurance (Plaintiff) Scott Richard Taylor (First Defendant) State Insurance Regulatory Authority of NSW (Second Defendant) Elyse White, in her capacity as a Claims Assessor of the State Insurance Regulatory Authority of NSW (Third Defendant) Representation: Counsel: M Robinson SC & J Gumbert (Plaintiff) J E Sexton SC & J C Lee (First Defendant) Submitting appearances (Second and Third Defendants)