Jubb v Insurance Australia Ltd [2016] NSWCA 153

Jubb v Insurance Australia Ltd [2016] NSWCA 153

The proper officer did not misconstrue s 62(1A) because "additional relevant information" is not limited to information concerning issues not previously considered by the earlier medical assessor. The clinical notes and Rushworth statement could be treated as additional relevant information capable of materially affecting the previous impairment assessment. The proposed relevant considerations ground was a new point not raised below and, in any event, the asserted matters were not mandatory considerations imposed by the MAC Act. The challenge to Dr Virgona's certificate consequently failed.

Jurisdiction
Australia
Judgment Date
04 July 2016
Procedural Posture
Appeal in Judicial Review Proceedings Concerning Referral for Further Medical Assessment Under the Motor Accidents Compensation Act 1999 (nsw) / Appeal From an Order of the Supreme Court of New South Wales, Common Law Division, Dismissing an Application Under S 69 of the Supreme Court Act 1970 (nsw)
Outcome
Appeal dismissed; leave to file a further amended notice of appeal granted only to delete ground 1; leave to add proposed ground 3A refused; appellant ordered to pay the first respondent's costs.
Legal Topics
['jurisdictional Error' 'proper Officer Referral for Further Medical Assessment' 'additional Relevant Information' 'mandatory Relevant Considerations' 'construction of Motor Accidents Compensation Act 1999 (nsw), S 62' 'whole Person Impairment Assessment']
['administrative Law' 'motor Accidents Compensation' 'judicial Review'] ['jurisdictional Error' 'proper Officer Referral for Further Medical Assessment' 'additional Relevant Information' 'mandatory Relevant Considerations' 'construction of Motor Accidents Compensation Act 1999 (nsw), S 62' 'whole Person Impairment Assessment']

Case Brief

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Procedural Posture

Appeal in Judicial Review Proceedings Concerning Referral for Further Medical Assessment Under the Motor Accidents Compensation Act 1999 (nsw) / Appeal From an Order of the Supreme Court of New South Wales, Common Law Division, Dismissing an Application Under S 69 of the Supreme Court Act 1970 (nsw)

Legal Issues

  1. 1 ['Whether the proper officer misconstrued the precondition in s 62(1A) of the Motor Accidents Compensation Act 1999 (NSW) by treating information concerning issues already considered in an earlier assessment as "additional relevant information".' 'Whether the proper officer constructively failed to exercise jurisdiction under s 62(1).' 'Whether the appellant should be permitted to raise a new appeal ground that the proper officer failed to take mandatory relevant considerations into account.' 'Whether lack of due diligence in obtaining information and the fact that information concerned the same issues previously considered were mandatory considerations for the proper officer.']

Ratio Decidendi

The proper officer did not misconstrue s 62(1A) because "additional relevant information" is not limited to information concerning issues not previously considered by the earlier medical assessor. The clinical notes and Rushworth statement could be treated as additional relevant information capable of materially affecting the previous impairment assessment. The proposed relevant considerations ground was a new point not raised below and, in any event, the asserted matters were not mandatory considerations imposed by the MAC Act. The challenge to Dr Virgona's certificate consequently failed.

Court Disposition

Appeal dismissed; leave to file a further amended notice of appeal granted only to delete ground 1; leave to add proposed ground 3A refused; appellant ordered to pay the first respondent's costs.

Orders

  • ['grant leave to file a further amended notice of appeal deleting ground 1' 'direct the appellant to file a further amended notice of appeal within 14 days' 'appeal dismissed' "appellant to pay the first respondent's costs"]