Transport Accident Commission of Victoria v Motor Accidents Authority of NSW & Ors [2009] NSWSC 940

New South Wales Supreme Court

CITATION : Transport Accident Commission of Victoria v Motor Accidents Authority of NSW & Ors [2009] NSWSC 940

HEARING DATE(S) : 5/08/09

JUDGMENT DATE : 11 September 2009

JUDGMENT OF : Patten AJ at 1

DECISION : See paragraph 38

LEGISLATION CITED : Motor Accidents Compensation Act 1999 Supreme Court Act 1970

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Public Service Board v Osmond (1985-1986) 159 CLR 656 CASES CITED : Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB 223 Allianz Australia Insurance v Crazzi [2006] 68 NSWLR 266 Craig v South Australia (1995) 184 CLR 163

Transport Accident Commission of Victoria - Plaintiff PARTIES : Motor Accidents Authority of NSW - First Defendant The Proper Officer of the Motor Accidents Authority of NSW - Second Defendant Vladimir Karanfilovski - Third Defendant

FILE NUMBER(S) : SC 30015 of 2009

COUNSEL : Mr J Turnbull- Plaintiff Mr C Jackson - Third Defendant

Carroll & O'Dea - Plaintiff SOLICITORS : Crown Solicitor's Office - First Defendant and Second Defendants Martin Bell & Co - Third Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Administrative Law List

Patten AJ

11 September 2009

No: 30015 of 2009

Transport Accident Commission of Victoria v Motor Accidents Authority of NSW & Ors

JUDGMENT 1 The Second Amended Summons herein seeks to invoke the jurisdiction of the court provided for by s69 of the Supreme Court Act in respect of a decision of the Motor Accidents Authority of NSW (the Authority) taken by the Second Defendant (the Proper Officer). 2 Both the Authority and the Proper Officer entered submitting appearances save as to costs. The third Defendant (Mr Karanfilovski) appeared by counsel Mr C Jackson. The Plaintiff was represented by Mr J Turnbull. 3 The Plaintiff seeks an order setting aside the dismissal by the Proper Officer on 14 January 2009 of its application for a further medical assessment, and consequential relief. It is contended that the dismissal revealed an error of law within s69 (3) of the Supreme Court Act, namely that the Proper Officer ignored relevant material or identified a wrong issue. It is submitted that the case falls within the principles stated in Craig v South Australia (1995) 184 CLR 163 where the High Court at page 179 said: "If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it." 4 Having regard to the nature of the jurisdictional error asserted it will be necessary to make some reference to the facts of the case. Before doing so, however, it is appropriate to say something about the relevant legislative framework which is contained in the Motor Accidents Compensation Act (the Act). 5 A person (the claimant) wishing to claim damages for death or injury caused by the fault of the owner or driver of a motor vehicle must proceed in accordance with the Act. In particular, the claimant is required to give early notification of the accident to police and the relevant insurer. There is provision in the Act for acceptance of provisional liability by the insurer, and there is provision for preliminary payment of medical and treatment expenses. Part 3.4 of Chapter 3 provides for the establishment of a Motor Accidents Medical Assessment Service (MAS) and applies to a disagreement about "medical assessment matters", namely any of the following: "(a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances, (b) whether any such treatment relates to the injury caused by the motor accident , (d) whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. " 6 Section 58 provides for the appointment of medical assessors and s 60 for the reference by the Authority to a medical assessor or assessors of a medical dispute. 7 Section 61 relevantly to this case provides for the status of medical assessments: "61 (1) The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment. (2) Any such certificate as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned. (4) In any court proceedings, the court may (despite anything to the contrary in this section) reject a certificate as to all or any of the matters certified in it, on the grounds of denial of procedural fairness to a party to the proceedings in connection with the issue of the certificate, but only if the court is satisfied that admission of the certificate as to the matter or matters concerned would cause substantial injustice to that party . (9) A certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence. (11) If a medical assessor is satisfied that a certificate under this section contains an obvious error, the medical assessor may issue a replacement certificate to correct the error. "