Boyce v Allianz Australia Insurance Ltd [2018] NSWCA 22

Boyce v Allianz Australia Insurance Ltd [2018] NSWCA 22

The Review Panel failed to exercise its statutory function by assessing the appellant's impairment without conducting a requested re-examination or notifying her that the panel proposed to proceed without re-examination, thereby depriving her of the opportunity to present further relevant material; this constituted both a constructive failure to exercise jurisdiction and a denial of procedural fairness necessitating the setting aside of the panel's certificate and orders below.

Jurisdiction
Australia
Judgment Date
20 February 2018
Procedural Posture
Civil Appeal / Appeal From Supreme Court Common Law Division
Outcome
Appeal allowed
Legal Topics
['judicial Review' 'procedural Fairness' 'motor Vehicle Accident' 'medical Assessment' 'personal Injury' 'whole Person Impairment' 'non Economic Loss' 'jurisdictional Error']
['administrative Law' 'tort Law'] ['judicial Review' 'procedural Fairness' 'motor Vehicle Accident' 'medical Assessment' 'personal Injury' 'whole Person Impairment' 'non Economic Loss' 'jurisdictional Error']

Case Brief

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Procedural Posture

Civil Appeal / Appeal From Supreme Court Common Law Division

Legal Issues

  1. 1 ['Whether the Review Panel failed to exercise its statutory function by not conducting a re-examination or interview of the appellant' 'Whether there was a denial of procedural fairness due to the failure to notify the appellant or her solicitor that the Panel would proceed without re-examination or interview']

Ratio Decidendi

The Review Panel failed to exercise its statutory function by assessing the appellant's impairment without conducting a requested re-examination or notifying her that the panel proposed to proceed without re-examination, thereby depriving her of the opportunity to present further relevant material; this constituted both a constructive failure to exercise jurisdiction and a denial of procedural fairness necessitating the setting aside of the panel's certificate and orders below.

Court Disposition

Appeal allowed

Orders

  • ['The appeal is allowed and the orders made in the Common Law Division on 20 June 2017 are set aside.' 'The Review Panel certificates dated 31 August 2016 and 5 September 2016 are set aside.' 'The review of the Certificate issued by the Assessor on 6 May 2016 is to be referred to the Motor Accidents Medical...