IAG Ltd t/as NRMA Insurance v Phonphasadu [2020] NSWSC 116

Supreme Court New South Wales

Medium Neutral Citation: IAG Ltd t/as NRMA Insurance v Phonphasadu [2020] NSWSC 116 Hearing dates: 21 February 2020 Decision date: 21 February 2020 Jurisdiction: Common Law Before: Adamson J Decision: (1) Remit the matter to the second defendant for determination by a different claims assessor (other than the third defendant) according to law.

(2) The summons is otherwise dismissed.

(3) The plaintiff and the first defendant to pay her or its (as the case may be) own costs of 7 February 2020 and 21 February 2020. Catchwords: ADMINISTRATIVE LAW — Remedies — where original decision was made by a claims assessor of the State Insurance Regulatory Authority of NSW — where remitter to a different claims assessor is sought – relevant factors Category: Principal judgment Parties: IAG Ltd t/as NRMA Insurance (Plaintiff) Yaowalak Phonphasadu (First Defendant) State Insurance Regulatory Authority (Second Defendant) Gary Patterson in his capacity as a Claims Assessor of the State Insurance Regulatory Authority (Third Defendant) Representation: Counsel: J Gumbert (Plaintiff) (by consent mentioned for the First Defendant) Submitting appearance (Second and Third Defendants)

Solicitors: Moray & Agnew (Plaintiff) Frisina Lawyers (First Defendant) Crown Solicitor's Office (Second and Third Defendants) File Number(s): 2019/370796

Judgment (EX TEMPORE) 1. By a summons filed on 25 November 2019 the plaintiff, IAG Ltd trading as NRMA Insurance (the Insurer), sought relief against Yaowalak Phonphasadu, the first defendant (the Claimant); the State Insurance Regulatory Authority, the second defendant (SIRA); and Gary Patterson in his capacity as a claims assessor of SIRA, the third defendant, (the Claims Assessor). 2. On 25 November 2019, the Insurer also filed in Court a notice of motion which sought that SIRA, including its officers, be restrained from acting or taking any further step in reliance on the decision of the Claims Assessor made on 22 November 2019 refusing to postpone the claims assessment conference set down for hearing on 26 November 2019. 3. The notice of motion was heard by Fagan J as the duty judge. His Honour made injunctive orders substantially in terms of prayer 3 of the summons. His Honour restrained the claims assessment conference which was set down for 26 November 2019 and which the Claims Assessor, on 22 November 2019, refused to adjourn. This had the effect of disposing of the Insurer's principal claim for relief in the summons. There remained only the question of remitter to SIRA for the purposes of a further claims assessment conference. 4. The parties came before the Registrar of this Court on 7 February 2020 and handed up short minutes of order in which they indicated their agreement to an order in the nature of mandamus remitting the matter to SIRA for a determination by a different claims assessor according to law; an order that the summons otherwise be dismissed; and an order each party pay their own costs of that day, being 7 February 2020. 5. As orders such as order 1 in the short minutes of order cannot be made by consent, the matter was listed before me today for the purposes of my determining whether it is appropriate to make those orders. Ms Gumbert appeared on behalf of the Insurer and mentioned the matter by the consent of the Claimant. SIRA and the Claims Assessor have filed submitting appearances. 6. Ms Gumbert has made detailed submissions on this Court's well-established power to order, when it remits a matter to a decision-maker, that the remitter be to a different decision-maker. 7. The basis on which it is submitted that the matter should be remitted to a decision-maker other than the Claims Assessor are, in substance, the reasons given by Fagan J at pages 9-10 for the injunctive relief granted. 8. In substance, the background facts are as follows. When the Claimant's lumbar spine was first assessed for the purposes of determining whole person impairment, the material provided to the assessor did not include the original scans of her lumbar spine. The Insurer's solicitors raised this matter in its Claims Assessment and Resolution Service reply and submitted that the matter was not ready to be listed as the Insurer was obtaining independent medical evidence and the Claimant had not yet provided her scans in respect of the cervical and lumbar spine. 9. Notwithstanding this submission, the matter was set down for an assessment conference on 26 November 2019. On 27 September 2019 Dr Coroneos, the neurosurgeon retained by the Insurer, advised in his report that the Claimant had not brought her scans to the appointment and that he needed the opportunity to review the scans before completing his assessment. On 15 October 2019 the Insurer's solicitors emailed the Claimant's solicitors requesting that the cervical and lumbar spine scans be made available in order for Dr Coroneos to complete his assessment. 10. Ultimately, the scans were made available in late October and were sent to Dr Coroneos for his review on 4 November 2019. Having received the scans, Dr Coroneos was able to complete his assessment of the Claimant. He provided his report with commendable expedition on 6 November 2019. The reports of Dr Coroneos, including the report prepared after receipt of these scans, were served on 8 November 2019. The Insurer's solicitors sought an urgent preliminary conference to vacate the assessment conference date, being 26 November 2019, as the Insurer intended to lodge a further application for assessment of the Claimant's whole person impairment by SIRA's Medical Assessment Service based on Dr Coroneos' report. 11. Fagan J found that when the matter came before the Claims Assessor on 22 November 2019, the Claims Assessor did not take into account the Insurer's interest in having the question of the whole person impairment of the Claimant's lumbar spine determined in light of the opinion of Dr Coroneos. Fagan J found that the Claims Assessor simply did not advert to the circumstances as referred to in the narrative I have given that the Claimant was implicated in the delay in providing the scans to Dr Coroneos and it could not be said that the Insurer was in any way to blame for the delay. 12. Fagan J said, of present relevance: "I consider that that is a material circumstance that ought to have been taken into account by the assessor, together with and as a counter to the right of the first defendant to a prompt hearing as adverted to in point 2. His failure to take this into account has contributed to administrative law error." 1. The Insurer has contended before me orally and in written submissions that, given the nature of this error, the Insurer no longer has confidence in the Claims Assessor in relation to a re-determination of the matter, as this error constituted a denial of procedural fairness. Ms Gumbert has also submitted that the error by the Claims Assessor amounted to a reasonable apprehension of bias and that this was a further reason why the matter ought not be remitted to the Claims Assessor. 2. I am not satisfied from the material that there is, or was, a reasonable apprehension that the Claims Assessor was biased against the Insurer. However, it would appear to me that it is in the interests of justice, having regard to the nature of the error and the consent of the Claimant to such an order, that, when the matter is remitted to SIRA for further claims assessment, it should be remitted to someone other than the Claims Assessor.