CIC Allianz Insurance Limited v Pillay [2017] NSWSC 1638

Supreme Court New South Wales

Medium Neutral Citation: CIC Allianz Insurance Limited v Pillay [2017] NSWSC 1638 Hearing dates: 16 November 2017 Date of orders: 04 December 2017 Decision date: 04 December 2017 Jurisdiction: Common Law Before: Bellew J Decision: (1) The decision of the third defendant, the Medical Assessors Review Panel, of 25 February 2017 is set aside.

(2) The matters which were the subject of the decision of the third defendant are remitted to the second defendant for re-allocation to a differently constituted Medical Assessors Review Panel for determination according to law.

(3) Absent agreement, the parties are to file with my Associate written submissions as to costs within 14 days, such submissions not to exceed two (2) pages in length. Catchwords: ADMINISTRATIVE LAW – Judicial Review – Decision of medical review panel – Whether panel reached a conclusion in the absence of evidence – Whether panel engaged in a proper exercise of clinical judgment – Error established – Matter remitted to a differently constituted panel

ADMINISTRATIVE LAW – Practice and procedure - Judicial Review – Decision of medical review panel – Whether panel's reasons adequate

ADMINISTRATIVE LAW – Judicial review – Practice and procedure – Whether court should refuse relief in the exercise of discretion – Whether the result of a further medical assessment following the remittal of the matter would inevitably be the same as that reached by the review panel – Where one of the errors found was that the panel failed to exercise its proper clinical judgment – Not possible to reach a conclusion that the result of a further assessment would be the same – Not an appropriate case in which to exercise the discretion to refuse to grant relief Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: AAI Limited v Fitzpatrick (2015) 72 MVR 97; [2015] NSWSC 1108 Allianz Insurance Limited v Francica (2012) 63 MVR 1; [2012] NSWSC 1577 Allianz Australia Insurance Limited v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58 Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWSC 39; (2014) 66 MVR 140 NRMA Insurance Limited v Mulcahy [2017] NSWSC 1499 Rutland v Allianz Australia Insurance Limited [2014] NSWSC 1583; (2014) 68 MVR 533 Sadsad v NRMA Insurance Limited (2014) 67 MVR 601 Wingfoot Australia Partners Pty Limited v Kocak (2013) 252 CLR 480; [2013] HCA 43 Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55; (2016) 75 MVR 1 Category: Principal judgment Parties: CIC Allianz Insurance Limited – Plaintiff Sagaren Pillay – First defendant State Insurance Regulatory Authority – Second defendant The Medical Assessors Review Panel comprising Assessors Christopher Oates, Geoffrey Stubbs and Clive Kenna – Third defendant Representation: Counsel: J Gumbert - Plaintiff J Turnbull SC and H Ward – First defendant