Mutawe v QBE Insurance (Australia) Ltd [2025] NSWSC 19

Mutawe v QBE Insurance (Australia) Ltd [2025] NSWSC 19

The delegate's decision involved jurisdictional error or error of law by failing to recognise the obligation to consider all available relevant evidence, including Dr Payten's report, when correcting an incomplete certificate under r 112, thus misconstruing statutory provisions and procedural directions; the decision was set aside and remitted for reconsideration.

Parties
Plaintiff: Mohammad Mutawe; First Defendant: QBE Insurance (Australia) Ltd; Second Defendant: President of the Personal Injury Commission of New South Wales; Third Defendant: Catherine Freeman in her capacity as the President's Delegate
Jurisdiction
Australia
Judgment Date
06 February 2025
Procedural Posture
Judicial Review / Principal Judgment
Outcome
Plaintiff successful; delegate's decision set aside and application remitted for reconsideration; insurer to pay plaintiff's costs.
Legal Topics
Motor Accident Injuries Act 2017 (nsw), Judicial Review, Personal Injury Commission Rules 2021 (nsw), Medical Assessment, Jurisdictional Error, Error of Law
Traffic Law Administrative Law Motor Accident Injuries Act 2017 (nsw) Judicial Review Personal Injury Commission Rules 2021 (nsw) Medical Assessment Jurisdictional Error Error of Law

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Parties

Mohammad Mutawe

Plaintiff

QBE Insurance (Australia) Ltd

First Defendant

President of the Personal Injury Commission of New South Wales

Second Defendant

Catherine Freeman in her capacity as the President's Delegate

Third Defendant

Procedural Posture

Judicial Review / Principal Judgment

Legal Issues

  1. 1 Whether the delegate erred in concluding that Dr Payten's report was not required to be considered in the medical assessment because it was not available at the time of first assessment
  2. 2 Whether the delegate misconstrued r 112 of the Personal Injury Commission Rules 2021 (NSW)
  3. 3 Whether the delegate misconceived effect of cll 67-73 of Procedural Direction PIC6

Ratio Decidendi

The delegate's decision involved jurisdictional error or error of law by failing to recognise the obligation to consider all available relevant evidence, including Dr Payten's report, when correcting an incomplete certificate under r 112, thus misconstruing statutory provisions and procedural directions; the decision was set aside and remitted for reconsideration.

Court Disposition

Plaintiff successful; delegate's decision set aside and application remitted for reconsideration; insurer to pay plaintiff's costs.

Orders

  • Set aside the decision of the third defendant dated 7 February 2024.
  • Remit the plaintiff's application under s 7.26 of the Motor Accident Injuries Act 2017 (NSW) to the second defendant for reconsideration according to law.