Gudelj v Motor Accidents Authority of New South Wales [2011] NSWCA 158

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Gudelj v Motor Accidents Authority of New South Wales [2011] NSWCA 158 Hearing dates: 21 April 2011 Decision date: 24 June 2011 Before: Giles JA at 1; Hodgson JA at 2; Handley AJA at 80 Decision: (1) Leave to appeal granted to the applicant. (2) Notice of Appeal to be filed within fourteen days. (3) Appeal allowed and orders below set aside. (4) Order in the nature of certiorari setting aside and quashing the decision of Ms Cassidy dated 14 August 2009 in CARS matter No 2009/12/1656, and setting aside the certificate of Ms Cassidy of the same date. (5) An order in the nature of mandamus that the Motor Accidents Authority of New South Wales exercise its power in that CARS matter according to law. (6) Order that NRMA pay the applicant's costs of the proceedings below. (7) Order that NRMA pay the applicant's costs of the appeal. (8) NRMA's application for leave to cross-appeal dismissed. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - Motor accidents - Late claim - Requirement of s 108 of the Motor Accidents Compensation Act 1999 for a certificate before a claimant can bring court proceedings - Determination by CARS that claimant had not provided a full and satisfactory explanation for the delay - Determination by CARS PCA denying the claimant a certificate - Whether judicial review available. Legislation Cited: Motor Accidents Compensation Act 1999: ss 3, 5, 66, 69, 70, 72, 73, 74, 76, 81, 88, 92, 94, 96, 108 Motor Accident Authority Claims Assessment Guidelines: Div 1 Ch 2 cl 2.1; Div 2 Ch 8 cll 8.2, 8.11; Div 2 Ch 9 cl 9.2; Div 2 Ch 10; Div 3 Ch 10, 11; Div 3 Ch 14 cll 14.11, 14.12, 14.16; Supreme Court Act 1970: s 69 Cases Cited: Allianz Australia Insurance Limited v GSF Australia Pty Limited [2005] HCA 26; (2005) 221 CLR 568 Hayek v Trujillo [2007] NSWCA 139; (2007) 49 MVR 12 Zotti v Australian Associated Motor Insurers Limited [2009] NSWCA 323 Category: Principal judgment Parties: Darko GUDELJ (applicant/ first cross-respondent) MOTOR ACCIDENTS AUTHORITY OF NEW SOUTH WALES (first respondent/ second cross-respondent) Belinda CASSIDY (second respondent/third cross-respondent) Michelle BOYLE (third respondent/ fourth cross-respondent) INSURANCE AUSTRALIA LIMITED trading as NRMA Insurance (fourth respondent/ cross-applicant) Representation: Counsel: E Romaniuk (applicant/ first cross-respondent) K P Rewell SC/ M A Robinson (fourth respondent/ cross-applicant) Solicitors: Slater & Gordon (applicant/ first cross-respondent) Curwoods Lawyers (fourth respondent/ cross-applicant) I V Knight, Crown Solicitor (first, second, third respondents - submitting appearance) File Number(s): 2009/298145 Decision under appeal Citation: Gudelj v Motor Accidents Authority of New South Wales [2010] NSWSC 436 Date of Decision: 2010-05-14 00:00:00 Before: McDougall J File Number(s): SC 2009/298145