New South Wales Court of Appeal CITATION: Motor Accidents Authority of NSW v Mills [2009] NSWCA 397 HEARING DATE(S): 30 November 2009 JUDGMENT DATE: 30 November 2009 JUDGMENT OF: Hodgson JA at 1 EX TEMPORE JUDGMENT DATE: 30 November 2009 DECISION: The order I make is that the District Court order made 29 January 2009 and varied on 1 May 2009 and confirmed on 21 September 2009 be stayed pending the Court of Appeal's determination of these proceedings. The costs of this application to be costs in the determination of the proceedings. CATCHWORDS: PROCEDURE – Stay – District court order for reassessment of an injury – Judicial review proceedings claiming order invalid – Whether order should be stayed. CATEGORY: Consequential orders MOTOR ACCIDENTS AUTHORITY OF NEW SOUTH WALES (applicant) PARTIES: David MILLS (first respondent) NOMINAL DEFENDANT (second respondent) DISTRICT COURT OF NEW SOUTH WALES (third respondent) FILE NUMBER(S): CA 40431/09 M SPRUCE (applicant) COUNSEL: A J STONE (first respondent) (mention for second respondent who neither opposes nor consents. SOLICITORS: I V Knight, Crown Solicitor (applicant) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 700/03 LOWER COURT JUDICIAL OFFICER: Coorey DCJ LOWER COURT DATE OF DECISION: 29 January 2009 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40431/09 HODGSON JA Monday, 30 NOVEMBER 2009 MOTOR ACCIDENTS AUTHORITY OF NSW v David MILLS Judgment 1 HODGSON JA: I am dealing with an application to stay a District Court order pending the Court of Appeal's determination of these proceedings. The proceedings are an application for judicial review of an order for reassessment by the medical assessor of an injury of the plaintiff. 2 The matter at issue is whether this order is or is not valid, having regard to the circumstance that the order purports to refer only the question of the extent of the plaintiff's whole person impairment, and excludes the question whether or not that impairment or the injury giving rise to it was caused by the incident, the subject of the proceedings. 3 It is the contention of the Motor Accidents Authority, which is seeking the judicial review, that that order is beyond the power of the District Court. It is not suggested on behalf of the plaintiff that there is not an arguable question in that regard. 4 The defendant in the District Court proceedings is, of course, a respondent to the application for judicial review, but is submitting to whatever order the Court makes in respect of this application for a stay. 5 The matter I have to consider is a question of balance of convenience. 6 On behalf the plaintiff respondent to the motion, it is put that, if the order is stayed so that the assessment process cannot be put in train until after the decision of the Court of Appeal, there will be a further delay of the order of 6 months in resolving the plaintiff's claim, which is already long delayed. The accident in respect of which the proceedings were brought occurred as long ago as 2000. 7 On the other hand, it is put for the applicant Motor Accidents Authority that it is in a difficult position, apparently being required by an order of the District Court to implement a procedure which it considers to be not authorised by the statute and which, if it is carried forward, is likely to give rise to expense and procedural complication; and of course, if the application for judicial review is successful, then the steps that will have been taken will in the event be of no utility. 8 A date for the hearing of the application has been obtained, namely 23 March next year. It has been drawn to my attention that under the Medical Assessment Guidelines, which have the effect of subordinate legislation, the Motor Accident Assessment Service may defer the allocation of the dispute for a period not exceeding 6 months in certain circumstances, including the existence of other good reasons to defer the allocation of the matter (see clause 9.7). 9 The resolution of this matter has already been long delayed. It seems that the original reference for reassessment was made some time in 2008, but it was not until 21 September 2009 that an order that could be effective was made, one deficiency of previous orders being that they were made without notice to the Motor Accidents Authority, and the District Court Judge took the view that the Motor Accidents Authority had to be afforded natural justice. 10 It seems therefore that there has already been a delay of the order of about a year until the effective order was made. The Motor Accidents Authority may well be able to defer the matter for a further 6 months, if it takes the view that its belief in the invalidity of the order would justify a delay. 11 Taking all those matters into account, it seems to me that the balance of convenience does favour the granting of the stay, and I do propose to make the order sought in the notice of motion. 12 The order I make is that the District Court order made 29 January 2009 and varied on 1 May 2009 and confirmed on 21 September 2009 be stayed pending the Court of Appeal's determination of these proceedings. 13 The costs of this application to be costs in the determination of the proceedings. oOo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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