IAG Ltd t/as NRMA Insurance v Chahoud [2019] NSWSC 767

Supreme Court New South Wales

Medium Neutral Citation: IAG Ltd t/as NRMA Insurance v Chahoud [2019] NSWSC 767 Hearing dates: 13 June 2019 Date of orders: 24 June 2019 Decision date: 24 June 2019 Jurisdiction: Common Law Before: Bell P Decision: 1. Pursuant to r 59.10(2) of the UCPR, extend the time for the plaintiff to commence these proceedings to 7 January 2019.

2. Set aside the decisions of the proper officer of the second defendant made on 9 July 2018 and 8 October 2018 dismissing the plaintiff's application under s 62 of the Motor Accidents Compensation Act 1999 (NSW) for a further medical assessment.

3. Remit the matter to the second defendant for the determination of the plaintiff's application by a proper officer according to law.

4. The first defendant is to pay the plaintiff's costs. Catchwords: ADMINISTRATIVE LAW – defendant injured in motor accident – plaintiff applied for further medical assessment of degree of permanent impairment of defendant – proper officer dismissed plaintiff's application – plaintiff requested that proper officer reconsider decision – proper officer found no reason to reconsider decision – plaintiff sought judicial review of proper officer's decisions – whether proper officer applied wrong legal test – whether proper officer misconstrued applicable guidelines – whether pre-impairment injury or records of pre-impairment injury must exist "at the time of the accident" – whether proper officer wrongly determined for herself issues properly for expert opinion – whether Court should in any event exercise its discretion to decline to grant relief

CIVIL PROCEDURE – plaintiff's summons filed out of time in respect of proper officer's first decision but not second decision – whether extension of time should be granted in respect of first decision – where delay explained by exhaustion of remedies below – where second decision inextricably linked to first decision – where defendant accepted there would be no prejudice Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) ss 62, 131 Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 137 Allianz Australia Insurance Ltd v MacKenzie [2012] NSWSC 1458; 62 MVR 305 Dominice v Allianz Australia Insurance Ltd [2017] NSWCA 171; 81 MVR 249 Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480; 66 MVR 69 IAG in IAG Ltd t/as NRMA Insurance v Jammal [2019] NSWSC 676 Jubb v Insurance Australia Ltd [2016] NSWCA 153; 76 MVR 228 Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; 67 MVR 322 R v Kelly; Ex parte Victorian Chamber of Manufactures (1953) 88 CLR 285; [1953] HCA 30 Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 Rodriguez v Telstra Corp Ltd [2002] FCA 30; 66 ALD 579 Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 Category: Principal judgment Parties: IAG Ltd t/as NRMA Insurance (Plaintiff) Walid Chahoud (First Defendant) State Insurance Regulatory Authority (Second Defendant) Representation: Counsel: M Robinson SC, J Gumbert (Plaintiff) S Blount (First Defendant)