Allianz Australia Insurance Ltd v Sprod [2012] NSWCA 281

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Allianz Australia Insurance Ltd v Sprod [2012] NSWCA 281 Hearing dates: 14 August 2012 Decision date: 12 September 2012 Before: Campbell JA (at [1]; Barrett JA (at [2]); Sackville AJA (at [44 ]) Decision: 1. Appeal allowed. 2. Judgment of 29 September 2011 below set aside. 3. In lieu thereof, make orders as follows: (1) Order that the assessment of claims assessor John Tancred the subject of his certificate of assessment dated 11 January 2011 be quashed and the certificate be set aside. (2) Order that the respondents be restrained from acting on or taking any further step in reliance on the said assessment or certificate. (3) Remit the claims assessment in respect of Michael Sprod to the Motor Accidents Authority of New South Wales for allocation to a claims assessor for determination according to law. 4. Order that Michael Sprod pay the costs of Allianz Australia Insurance Ltd of the proceedings below and of the appeal. 5. Grant to Michael Sprod an indemnity certificate under the Suitors Fund Act 1951 in respect of the appeal. [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: ADMINISTRATIVE LAW - claim for prerogative relief - motor accidents compensation scheme - assessment by claims assessor of the amount that a court would be likely to award as damages - statutory obligation of assessor to be satisfied as to assumptions as to future earning capacity on which award is based - statutory obligation of assessor to state the assumptions - insurer alleges non-compliancce by assessor with these obligations - challenge to primary judge's decision that there had been compliance - where assessor embarker on process of calculation as distinct from awarding "buffer" - where award based on lost future earnings of $250 per week for 18.3 years - no statement of basis for assumption of either 18.3 years or $250 - where $250 apparently based on earnings for one year of abnormally high earnings - error of law on part of assessor established. Legislation Cited: Civil Liability Act 2002, s 13 Motor Accidents Compensation Act 1999, Part 4.4, ss 94, 106(1), 122,126, Supreme Court Act 1970, s 69 Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Burton v Brooks [2011] NSWCA 175 Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 Nominal Defendant v Livaja [2011] NSWCA 121 Penrith City Council v Parks [2004] NSWCA 201 Category: Principal judgment Parties: Allianz Australia Insurance Limited - Appellant Michael Sprod - First Respondent John Tancred, Claims Assessor - Second Respondent Motor Accidents Authority of New South Wales - Third Respondent Representation: M A Robinson SC - Appellant M A J Daley - First Respondent TL Lawyers - Appellant Brydens Law Office - First Respondent File Number(s): 2011/90668 Decision under appeal Citation: Alliance Australia Insurance Ltd v Sprod [2011] NSWSC 1157 Date of Decision: 2011-09-29 00:00:00 Before: Hoeben J File Number(s): 2011/90688