Cahill v Insurance Australia Limited (No 2)

I gave judgment in this matter on 16 May 2019 in favour of the first defendant, Insurance Australia Ltd trading as NRMA insurance (the insurer): Cahill v Insurance Australia Ltd [2019] NSWSC 564. That judgment concerns a challenge by the plaintiff, Joanne Cahill, to a medical certificate issued by a Medical Review Panel under to s 63 of the Motor Accidents Compensation Act 1999 (NSW) (the Act). The plaintiff sought judicial review of, and orders in the nature of certiorari and mandamus setting aside, the medical certificate, or a declaration that it was invalid. The plaintiff submitted that the determination of the Review Panel was vitiated by jurisdictional error or errors of laws on the face of the record. I dismissed the proceedings having found contrary to the plaintiff’s argument. My orders (at [60]) were:

Counsel for the plaintiff applied for an indemnity certificate under the Suitors Fund Act 1951 (NSW) for the adverse costs order, counsel for the first defendant has opposed this order.

Counsel for the plaintiff have referred to a number of authorities in support of this application. It is unnecessary to refer to all or any of them in detail as many, with respect, were inapposite, and because there is a threshold difficulty with the application in that the outcome of the proceedings does not engage the statutory conditions for the grant of a certificate.

Section 6 of the Act provides:

Even if it is accepted that the Review Panel was a court for the purposes of the Act, and judicial review proceedings, an appeal, the “appeal” has been unsuccessful in the Supreme Court and there is no power to grant a certificate. Moreover as the moving party in the proceedings the plaintiff cannot be equated with a respondent to an appeal.

Finally, the plaintiff makes reference to 6C(2) of the Act. This plainly is not a matter over which the Court has power but rather, is a matter the Director General. This provision therefore does not assist the plaintiff here. This was explained by Beazley P in Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480 at [58] in this way:

My order is that the Suitors Fund Certificate is refused.