Administrative Law

Nursing and Midwifery Board of Australia v Linquist [2019] NSWSC 978

ADMINISTRATIVE LAW – appeal from Civil and Administrative Tribunal – whether decision made by validly constituted tribunal – four-member tribunal was constituted for the purposes of the hearing – whether principal member could separately and simultaneously constitute herself as the tribunal to decide legal questions – single member of a multi-person tribunal which has already been constituted not authorised to constitute himself or herself as the tribunal on unstated informal basis or to make a decision unilaterally without recourse to the balance of the tribunal – decision void

COSTS – whether successful plaintiff ought pay defendant’s costs of proceedings – defendant invited to file submitting appearance – defendant not neutral contradictor – costs follow the event

COSTS – suitors’ fund – application for suitors’ fund certificate – appropriate to grant certificate where defendant did not contribute to error made by tribunal

Kirralee Young represented the plaintiff.

The reasons for the decision can be found here.

IAG Limited t/as NRMA Insurance v Jammal [2019] NSWSC 676

ADMINISTRATIVE LAW – judicial review – decision under the Motor Accident Compensation Act 1999 – SIRA proper officer refused application for further assessment of a medical dispute – whether proper officer’s decision affected by error of law on the face of the record or jurisdictional error – failure to address substantial, clearly articulated argument – error established – decision set aside and matter remitted for redetermination according to law

Mark Robinson SC and Dr Juliet Lucy represented the Plaintiff.

Reasons for the decision can be found here.

AAI Limited v Feng [2019] NSWSC 535

STATUTORY INTERPRETATION – definition – whether “fault” is synonymous with liability or means, in the context of the tort of negligence, breach of duty – whether fault includes causation 
  
ADMINISTRATIVE LAW – judicial review – application for mandatory and discretionary exemption from CARS assessment – no reasons required when discretionary exemption refused – reasons of claims assessor to be read fairly as a whole – no error established

Mark Robinson SC and Dr Juliet Lucy represented the First Defendant.

Reasons for the decision can be found here.

IAG Limited t/as NRMA Insurance v Qianxia Lou [2019] NSWSC 382

ADMINISTRATIVE LAW - Judicial Review - first defendant sought damages for injuries sustained in a motor vehicle accident – application by plaintiff that the claim be exempt from informal assessment process on the grounds that first defendant made false and misleading statements – question of error of law or jurisdictional error on the part of the Assessor - whether Assessor asked the correct question - errors established - matter remitted for determination according to law

Mark Robinson SC and Dr Juliet Lucy represented the Plaintiff.

Reasons for the decision can be found here.

IAG Limited t/a NRMA Insurance v Khaled & ors [2019] NSWSC 320

Administrative Law – Judicial Review – Where first defendant sought damages for injuries sustained in a motor vehicle accident – Where plaintiff sought that the claim be exempt from informal assessment process on the grounds that it was not suitable for assessment in that way due to the plaintiff’s false and misleading statements – Whether there was error of law or jurisdictional error on the part of the Assessor – Whether the Assessor asked the correct question – Whether the Assessor’s reasons were adequate – Errors established – Matter remitted for determination according to law 
  
Practice and procedure – Costs – Where first defendant filed an appearance submitting to all orders of the Court – Where plaintiff succeeded in obtaining the relief sought – No reason for the plaintiff not to be awarded costs in its favour 

Mark Robinson SC and Dr Juliet Lucy represented the Plaintiff.

Reasons for the decision can be found here.

Insurance Australia Limited t/as NRMA v Howard [2019] NSWSC 224

ADMINISTRATIVE LAW – judicial review – application for exemption from CARS assessment – allegations of false or misleading statements by claimant – whether error of law or jurisdictional error – alleged legal unreasonableness – beneficial construction to be applied to reasons of decision-maker – no error established

Mark Robinson SC and Dr Juliet Lucy represented the Plaintiff.

Reasons for the decision can be found here.

Nithianantha v Commonwealth of Australia [2018] FCA 2063

ADMINISTRATIVE LAW – Judicial Review – Professional Services Review Scheme under Part VAA of the Health Insurance Act 1973 (Cth) – where Professional Services Review Committee found applicant doctor engaged in "inappropriate practice" as defined in s 82(1)(a) – where Committee found that applicant engaged in a prescribed pattern of services by rendering more than 80 services on each of 20 or more days in the review period – where Committee found that there were no exceptional circumstances under reg 11(b) of the Health Insurance (Professional Services Review) Regulations 1999 (Cth) because there was not an absence of other medical services for the applicant's patients – whether the Committee erred by finding an alternative medical centre provided a readily and reasonably available alternative for the applicant's patients – whether applicant bears the burden of proving the existence of exceptional circumstances – whether reg 11(b) required the Committee to consider whether alternative medical services were available on each and every day in the review period – whether the Committee impermissibly considered practice management considerations 

ADMINISTRATIVE LAW – Judicial Review – Professional Services Review Scheme under Part VAA of the Health Insurance Act – procedural fairness – where Committee called a witness to give evidence which contradicted the applicant's evidence a week before the last day of hearing – where notice did not encompass all evidence given by the witness at the hearing – where Committee relied on the witness' evidence to find that exceptional circumstances did not exist – whether the Committee was required to give the applicant a further opportunity to respond to witness' evidence – whether the finding was an adverse conclusion which was not obviously open on the known material

HEALTH LAW – Health Insurance (General Medical Services Table) Regulations 2012 (Cth) – construction of reg 2.15.1 and MBS item 597 – whether urgency is assessed when a practitioner determines to make an attendance or whether it is assessed at the time of an examination of the patient 

Conclusion: application dismissed.

Dr Juliet Lucy represented the Applicant.

Reasons for the decision can be found here.

Insurance Australia Limited v Kong Lai Kai [2018] NSWSC 958

ADMINISTRATIVE LAW – judicial review – motor accidents compensation legislation – refusal by authority to refer whole of medical dispute referred by insurer – failure to discharge statutory duty to refer whole dispute

ADMINISTRATIVE LAW – appropriate relief – statutory mandamus under s 65 of Supreme Court Act 1970 – whether any relevant “decision” which would warrant relief in the nature of certiorari.

Mark Robinson SC and Dr Juliet Lucy represented the Plaintiff.

Reasons for the decision can be found here.