Zilic v QBE Insurance (Australia) Ltd [2025] NSWSC 11

Zilic v QBE Insurance (Australia) Ltd [2025] NSWSC 11

The Review Panel constructively failed to exercise jurisdiction and erred in law by limiting itself to the primary psychiatric diagnosis and failing to engage with the substantial, clearly articulated argument regarding secondary psychiatric disorders, and by not providing adequate reasons for its disagreement with the assessment of Assessor Mason, as required under s 61(9) of the MAC Act. This constitutes jurisdictional error warranting an order setting aside the certificate and remitting the assessment to a differently constituted review panel.

Parties
Plaintiff: Elmedina Zilic; First Defendant: QBE Insurance (Australia) Ltd; Second Defendant: President of the Personal Injury Commission of New South Wales; Third Defendants: Terence O'Riain, Thomas Newlyn and Gerald Chew in their capacity as a Review Panel of the Personal Injury Commission
Jurisdiction
Australia
Judgment Date
04 February 2025
Procedural Posture
Judicial Review / Final Judgment
Outcome
Orders made: certiorari setting aside the certificate, mandamus remitting assessment to a new review panel, costs reserved.
Legal Topics
Motor Accidents Compensation, Judicial Review of Medical Assessment, Permanent Impairment Threshold, Certiorari, Mandamus, Medical Panel Reasoning Requirements
Administrative Law Insurance Law Motor Accidents Compensation Judicial Review of Medical Assessment Permanent Impairment Threshold Certiorari Mandamus Medical Panel Reasoning Requirements

Case Brief

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Parties

Elmedina Zilic

Plaintiff

QBE Insurance (Australia) Ltd

First Defendant

President of the Personal Injury Commission of New South Wales

Second Defendant

Terence O'Riain, Thomas Newlyn and Gerald Chew in their capacity as a Review Panel of the Personal Injury Commission

Third Defendants

Procedural Posture

Judicial Review / Final Judgment

Legal Issues

  1. 1 Whether the Review Panel committed jurisdictional error by failing to consider secondary psychiatric diagnoses
  2. 2 Whether the Review Panel provided adequate reasons for its disagreement with prior medical assessment
  3. 3 Whether the Review Panel constructively failed to exercise jurisdiction

Ratio Decidendi

The Review Panel constructively failed to exercise jurisdiction and erred in law by limiting itself to the primary psychiatric diagnosis and failing to engage with the substantial, clearly articulated argument regarding secondary psychiatric disorders, and by not providing adequate reasons for its disagreement with the assessment of Assessor Mason, as required under s 61(9) of the MAC Act. This constitutes jurisdictional error warranting an order setting aside the certificate and remitting the assessment to a differently constituted review panel.

Court Disposition

Orders made: certiorari setting aside the certificate, mandamus remitting assessment to a new review panel, costs reserved.

Orders

  • Certiorari setting aside the certificate dated 22 August 2023 of the Review Panel under s 63 of the Motor Accidents Compensation Act 1999 (NSW).
  • Mandamus remitting the medical assessment of Ms Zilic to a differently constituted review panel for determination according to law.