Rahme v Bevan & Anor [2009] NSWSC 528

New South Wales Supreme Court

CITATION : Rahme v Bevan & Anor [2009] NSWSC 528

HEARING DATE(S) : 23/04/09

JUDGMENT DATE : 12 May 2009

JUDGMENT OF : Patten AJ at 1

DECISION : See paragraph 35

Motor Accidents Compensation Act 1999; LEGISLATION CITED : Administrative Appeals Tribunal; Administrative Appeals Tribunal Act;

Campbelltown City Council v Vegan (2006) 67 NSWLR 372; CASES CITED : Secretary Department of Employment and Workplace Relations v Homewood [2006] FCA 778; Australia Postal Corporation v Wallace (1996) 41 ALD 455 at 457; McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163

Fawzi Rahme - Plaintiff PARTIES : Danny Bevan - First Defendant Motor Accidents Authority of NSW - Second Defendant

FILE NUMBER(S) : SC 030011 of 2009

Mr D Baran - Plaintiff COUNSEL : Mr K Rewell SC - First Defendant Ms A Mitchelmore - Second Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

PATTEN AJ

12 MAY 2009

030011 of 2009

Fawzi Rahme – Plaintiff v Danny Bevan – First Defendant & Motor Accidents Authority of NSW – Second Defendant

JUDGMENT 1 The Further Amended Summons in this matter seeks the following relief: "1. A declaration that the plaintiff was denied procedural fairness by the Review Panel of the Medical Assessment Service in its decision dated 19 December, 2008 by the Review Panel failing to provide adequate reasoning for its decision. 2. An order that the Certificate and Determination of the review panel dated 19 December, 2008 in respect of the plaintiff be quashed. 3. An order that the defendant pay the plaintiff's costs." 2 The Review Panel of the Medical Assessment Service (the Review Panel) referred to in the Summons is a review panel of medical assessors established pursuant to s63 of the Motor Accidents Compensation Act. The Summons seeks to enliven the jurisdiction of the Supreme Court conferred by s69 of the Supreme Court Act on the basis that there was an error of law appearing on the face of the record of the proceedings before the Motor Accidents Authority of NSW (the Authority). It was not submitted that the remedy does not lie against the Authority as a tribunal within the meaning of s69 (3). 3 The relevant facts for the purposes of the proceedings before me are not in dispute. The Plaintiff (Mr Rahme) on 30 January 2002 witnessed from close proximity a collision on Sammit Street Condell Park between a vehicle being driven on the incorrect side of the road at high speed by the First Defendant and a pedestrian. The First Defendant was being pursued by a police vehicle. The pedestrian was thrown almost at Mr Rahme's feet and died soon after at the scene. 4 Mr Rahme asserts that the experience has left him with a continuing psychiatric or psychological disability in respect of which he made claim under the Motor Accidents Compensation Act (the Act). 5 On 6 April 2006, he was issued with a certificate of exemption under s92 of the Act, entitling him to commence proceedings in a court. He filed a Statement of Claim in the District Court on 2 June 2006 and to that a defence was filed, inter alia denying that he suffered any psychiatric or psychological injury as a result of the accident. 6 The defence gave rise to a disagreement between Mr Rahme and an insurer within s58 (1) of the Act, which at the time relevantly provided : "58. (1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this part as "medical assessment matters"):