ADMINISTRATIVE LAW – judicial review – motor vehicle accident – review of certificate of medical assessment review panel – Panel not advised by Authority of appellant’s objection to assessment without re-examination – appellant not re-examined – whether constructive failure to exercise statutory function

ADMINISTRATIVE LAW – judicial review – motor vehicle accident – review of certificate of medical assessment review panel – Panel not advised by Authority of appellant’s objection to assessment without re-examination – appellant not re-examined – whether procedurally unfair – whether appellant suffered practical injustice – Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) CLR 1 considered

TORTS – motor vehicle accident – damages – claim for non-economic loss – assessment of whole person impairment – procedure adopted by review panel

Boyce v Allianz Australia Insurance Ltd [2018] NSWCA 22

The Court (Basten JA, Macfarlan JA and Sackville AJA) allowed the appeal and held:

In relation to (1):

1.   (Per Basten JA, Macfarlan JA agreeing): the review panel was required to conduct a fresh assessment of the appellant’s whole person impairment, based on information current at the time of the assessment: [9]. Whole person impairment assessments should include an interview and clinical examination “wherever possible”: [21]-[22].

2.   The decision not to examine and interview the appellant was an essential step in the assessment process: [50]; [58]. Whether there was a need for re-examination was a factual issue for determination by the panel; however, that determination could not be properly made on a false premise regarding the appellant’s wishes: [49]; [56]; [58].

Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 discussed; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 considered.

3.   It was not enough for the panel to accept all of Dr Rochford’s descriptions and findings while varying his conclusions; the panel was required to determine the matter afresh: [57].

Allianz Australia Insurance Ltd v Rutland [2015] NSWCA 328 applied.

In relation to (2):

4.   As the appellant was not advised that the review assessment would occur without re-examination, she was deprived of the opportunity to put her case before the panel, as to why she “objected” to the Panel proceeding “on the papers”, and as to what she might do if her objection were rejected: [94].

5.   The respondent’s argument that the appellant had not suffered practical injustice was misconceived. The Court’s role is not to determine whether re-examination, or other alternative steps, might have impacted the panel’s ultimate conclusion: [70]; [94]. The respondent could not demonstrate that the appellant was not deprived of the possibility of a successful outcome: [95], [132], [134].

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 distinguished; Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 applied;

6.   (Per Sackville AJA, Macfarlan JA agreeing): even if it were necessary for the appellant to demonstrate she would have taken further steps to persuade the Review Panel, Ms Gleeson’s affidavit discharged that burden: [136]; [138].

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