Nelkovska v Motor Accidents Authority of New South Wales [2012] NSWSC 819

Supreme Court New South Wales

Medium Neutral Citation: Nelkovska v Motor Accidents Authority of New South Wales [2012] NSWSC 819 Hearing dates: 27/06/2012 Decision date: 26 July 2012 Jurisdiction: Common Law Before: Harrison AsJ Decision: (1) Declare that the decision of the Medical Assessor in matter number 2010/01/1477 issued on 3 September 2010 is vitiated by error of law. (2) An order in the nature of certiorari removing into the Court the decision of the Medical Assessor issued on 3 September 2010 in matter number 2010/01/1477 and quashing that decision. (3) An order that matter number 2010/01/1477 be remitted to the Motor Accidents Authority of New South Wales to be determined in accordance with law. (4) The second defendant is to pay the plaintiff's costs as agreed or assessed. Catchwords: ADMINISTRATIVE LAW - judicial review - jurisdictional error - plaintiff challenges the certificate issued by a medical assessor pursuant to Part 3.4 of the Motor Accidents Compensation Act 1999 - plaintiff also challenges the dismissals of her application for review pursuant to s 63 and her application for further medical assessment pursuant to s 62 of the Act - test for causation - declaration that first decision void ab initio Legislation Cited: Civil Liability Act 2002 Motor Accidents Compensation Act 1999 Supreme Court Act 1970 Cases Cited: Ackling v QBE Insurance (Australia) Ltd [2009] NSWSC 881 Allianz Insurance Australia Limited v Sprod [2011] NSWSC 1157 Area Concrete Pumping Pty Ltd v Inspector Barry Childs (WorkCover) [2012] NSWCA 208 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Chase Oyster Bar Pty Ltd v Hamo Industries 2010 NSWCA 190 Craig v State of South Australia (1995) 184 CLR 163 Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales [2010] HCA 1 Goodman v The Motor Accidents Authority of NSW (2009) 53 MVR 420; [2009] NSWSC 875 Martin v Kelly [2008] NSWSC 577 Minister for Immigration and Ethic Affairs v Wu Shan Lian (1996) 185 CLR 259 Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 Refugee Review Tribunal, Re; Ex parte Aala [2000] HCA 57 Ruddock v Taylor [2005] HCA 47; (2005) 222 CLR 612 Theiss Pty Ltd v Industrial Court (NSW) 2010 NSWCA 252 Category: Principal judgment Parties: Jasmina Nelkovska (Plaintiff) Motor Accidents Authority of New South Wales (First Defendant) Insurance Australia Limited t/as NRMA Insurance (Second Defendant) Clive Kenna, Assessor (Third Defendant) Josephine Redmond, Proper Officer (Fourth Defendant) Jane Probert, Proper Officer (Fifth Defendant) Representation: E Romaniuk (Plaintiff) M Robinson SC with A Poljak (Second Defendant) Leitch Hasson & Dent (Plaintiff) Crown Solicitor, Submitting Appearance (First, Third, Fourth & Fifth Defendants) Curwoods Lawyers (Second Defendant) File Number(s): 2012/44480