Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance [2021] NSWSC 804

Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance [2021] NSWSC 804

The second defendant's review certificate and reasons were vitiated by jurisdictional error because it relied extensively and adversely on epidemiological material concerning spinal MRI findings without giving the plaintiff notice or an opportunity to respond, thereby denying procedural fairness and causing practical injustice. The second defendant also failed to discharge its statutory function on causation by focusing on the absence of contemporaneous complaint or report of right second toe injury rather than determining whether the accident materially contributed to the infection, nail avulsion and amputation. The decision, certificate and reasons therefore had to be declared void, set...

Jurisdiction
Australia
Judgment Date
01 July 2021
Procedural Posture
Judicial Review Pursuant to S 69 of the Supreme Court Act 1970 (nsw) / Principal Judgment on Amended Summons; Defendants Filed Submitting Appearances, Save as to Costs
Outcome
Judicial review granted; certificate, decision and statement of reasons declared void and set aside; matter remitted; no order as to costs.
Legal Topics
['substitution of Party' 'savings and Transitional Provisions' 'judicial Review' 'jurisdictional Error' 'procedural Fairness' 'error of Law on the Face of the Record' 'certiorari' 'declaratory Relief' 'remittal' 'minor Injury Assessment' 'causation']
['civil Procedure' 'administrative Law' 'motor Accidents'] ['substitution of Party' 'savings and Transitional Provisions' 'judicial Review' 'jurisdictional Error' 'procedural Fairness' 'error of Law on the Face of the Record' 'certiorari' 'declaratory Relief' 'remittal' 'minor Injury Assessment' 'causation']

Case Brief

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Procedural Posture

Judicial Review Pursuant to S 69 of the Supreme Court Act 1970 (nsw) / Principal Judgment on Amended Summons; Defendants Filed Submitting Appearances, Save as to Costs

Legal Issues

  1. 1 ['Whether leave should be granted to amend the summons to substitute the President of the Personal Injury Commission of New South Wales as the second defendant.' 'Whether the second defendant denied procedural fairness by relying on epidemiological publications without giving the plaintiff notice or an opportunity to respond.' "Whether the second defendant failed to apply the correct principles of causation in respect of the plaintiff's right second toe injury and amputation." 'Whether the second defendant treated the absence of contemporaneous complaint or report of injury to the right second toe as determinative of causation.']

Ratio Decidendi

The second defendant's review certificate and reasons were vitiated by jurisdictional error because it relied extensively and adversely on epidemiological material concerning spinal MRI findings without giving the plaintiff notice or an opportunity to respond, thereby denying procedural fairness and causing practical injustice. The second defendant also failed to discharge its statutory function on causation by focusing on the absence of contemporaneous complaint or report of right second toe injury rather than determining whether the accident materially contributed to the infection, nail avulsion and amputation. The decision, certificate and reasons therefore had to be declared void, set...

Court Disposition

Judicial review granted; certificate, decision and statement of reasons declared void and set aside; matter remitted; no order as to costs.

Orders

  • ['The summons filed on 28 November 2020 is amended in accordance with the amended summons filed on 30 June 2021 removing the SIRA Review Panel as the second defendant, and replacing it with the President of the Personal Injury Commission of New South Wales.' 'The certificate, the decision and statement of reasons...