QBE Insurance (Australia) Limited v Gerald Polorotov [2017] NSWSC 1266

Supreme Court New South Wales

Medium Neutral Citation: QBE Insurance (Australia) Limited v Gerald Polorotov [2017] NSWSC 1266 Hearing dates: 1 September 2017 Date of orders: 29 September 2017 Decision date: 29 September 2017 Jurisdiction: Common Law Before: Harrison AsJ Decision: The Court orders that:

(1) The claim for judicial review fails. (2) The summons filed 1 June 2017 is dismissed. (3) The plaintiff is to pay the first defendant's costs on an ordinary basis. Catchwords: ADMINISTRATIVE LAW - judicial review - Motor Accidents Compensation Act 1999 – challenge to the assessment of a State Insurance Regulatory Authority Claims Assessor for damages – whether the Claims Assessor erred in law in finding there was no exercisable residual earning capacity - whether the Claims Assessor failed to explain the actual path of reasoning by which he reached his conclusion – whether the Claims Assessor failed to engage with the insurer's argument – whether there was a denial of procedural fairness Legislation Cited: Accident Compensation Act 1985 (Vic) MAA Claims Assessment Guidelines MAA Permanent Impairment Guidelines, 1 October 2007 Motor Accidents Compensation Act 1999 (NSW) Cases Cited: Allianz Australia Insurance Limited v Crazzi (2006) 68 NSWLR 266 Insurance Australia Limited Ltd trading as NRMA Insurance v Hutton-Potts (2010) 57 MVR 194 Kallouf v Middis [2008] NSWCA 61 McGinn v Ashfield Council [2012] NSWCA 238 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Pham v NRMA (2014) 66 MVR 152 Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 Zahed v IAG Limited t/as NRMA Insurance and Others (2016) NSWCA 55; 75 MVR 1 Category: Principal judgment Parties: QBE Insurance (Australia) Limited (Plaintiff) Gerald Polorotov (First Defendant) State Insurance Regulatory Authority (SIRA) (Second Defendant) (Submitting Appearance) Thomas Goudkamp (in his capacity as a claims assessor appointed by SIRA) (Third Defendant) (Submitting Appearance) Representation: Counsel: K Rewell SC M A Robinson SC with G Foster (First Defendant)