NRMA Insurance Limited v Mulcahy [2017] NSWSC 1499

Supreme Court New South Wales

Medium Neutral Citation: NRMA Insurance Limited v Mulcahy [2017] NSWSC 1499 Hearing dates: 2 November 2017 Date of orders: 03 November 2017 Decision date: 03 November 2017 Jurisdiction: Common Law Before: Adamson J Decision: (1) Order that the certificate of assessment dated 15 May 2017 purportedly issued by the second defendant pursuant to s 94(4) of the Motor Accidents Compensation Act 1999 (NSW) in respect of the first defendant's claim be set aside.

(2) Remit the assessment of the first defendant's claim under Ch 4 of the Motor Accidents Compensation Act 1999 (NSW) to the third defendant for allocation to a claims assessor for determination according to law.

(3) Order the first defendant to pay the plaintiff's costs of the proceedings. Catchwords: ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 (NSW) s 94 – insurer's challenge to the assessor's reasons for assessments of past and future economic loss – held reasons for future economic loss insufficient – disparity between weekly amount to date of assessment and thereafter unexplained – higher weekly amount required explanation because of disparity as well as finding that the claimant would work less in the remaining 7 years until retirement – discussion of assessor's obligation to give reasons Legislation Cited: Accident Compensation Act 1985 (Vic) Claims Assessment Guidelines (NSW), Ch 18 Motor Accidents Compensation Act 1999 (NSW), ss 69, 94, 95, 122, 126, Chs 4, 5, Pts 4.4, 5.1 Supreme Court Act 1970 (NSW), ss 69, 75A Cases Cited: Allianz Australia Insurance Ltd v Habib [2015] NSWSC 1719 Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 Allianz Australia Insurance Ltd v Sprod (2012) 81 NSWLR 626; [2012] NSWCA 281 Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58 Insurance Australia Ltd (t/as NRMA Insurance) v Milton [2016] NSWCA 156 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259; [1996] HCA 6 Pham v NRMA Insurance Ltd [2014] NSWCA 22 Repatriation Commission v O'Brien (1985) 155 CLR 422; [1985] HCA 10 Sherlock v Lloyd (2010) 27 VR 434; [2010] VSCA 122 The Nominal Defendant v Aychahawchar [2015] NSWCA 58 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Zahed v IAG Ltd (t/as NRMA Insurance) [2016] NSWCA 55 Category: Principal judgment Parties: NRMA Insurance Limited (Plaintiff) Keiran Mulcahy (First Defendant) Gary Victor Patterson, in his capacity as a Claims Assessor of the State Insurance Regulatory Authority of New South Wales (Second Defendant) State Insurance Regulatory Authority of New South Wales (Third Defendant) Representation: Counsel: M Robinson SC/J Gumbert (Plaintiff) P Deakin QC/ M Maxwell (First Defendant)