Allianz Australia Insurance Limited v Francica [2012] NSWSC 1577

Supreme Court New South Wales

Medium Neutral Citation: Allianz Australia Insurance Limited v Francica [2012] NSWSC 1577 Hearing dates: 12 December 2012 Decision date: 12 December 2012 Jurisdiction: Common Law Before: Hall J Decision: The following orders and declarations were made by Hall J: 1. A declaration that the certificate, including the reasons of the third defendant, James Bodel, issued on 9 January 2012, is affected by an error of law on the face of the record. 2. An order in the nature of certiorari is made quashing that certificate and the reasons of the third defendant. 3. A declaration is made that the decision of the fourth defendant, Jeremy Lum, dated 5 April 2012, refusing the plaintiff's application for review of Dr Bodel's certificate by a medical review panel is affected by an error of law on the face of the record. 4. An order is made in the nature of certiorari quashing a decision of the fourth defendant. 5. I make an order that the matter be remitted for further medical assessment under the Motor Accidents Compensation Act 1999 to the second defendant, the Motor Accidents Authority, being New South Wales, to be dealt with according to law. 6. The defendant is to pay the plaintiff's costs on the ordinary basis of these proceedings. Catchwords: ADMINISTRATIVE LAW - judicial review - error of law on the face of the record - whether certificate under Motor Accident Compensation Act 1999 - whether certificate of a Medical Assessor affected by error of law on the face of the record - finding that shoulder injuries caused by the relevant motor vehicle accident and gave rise to permanent impairment - application to a Review Panel for a review of the assessment rejected - whether adequate reasons for the Medical Assessor's decision that should injuries and impairment caused by the motor vehicle accident - absence of history of shoulder symptoms following the accident - basis for concluding that should symptoms were caused by the motor accident not identified by the Medical Assessor - error on face of the record established Legislation Cited: Motor Accidents Compensation Act 1999 Cases Cited: Alchin v Daley (2009) NSWCA 418 Campbell City Council v Vegan (2006) NSWCA 284 Category: Principal judgment Parties: Allianz Australia Insurance Limited (Plaintiff) David Francica (First Defendant) Motor Accidents Authority of NSW (Second Defendant) Dr James Bodel (in his capacity as a Medical Assessor on behalf of the Second Defendant) (Third defendant) Jeremy Lum (in his capacity as the Proper Officer of the Second Defendant) (Fourth Defendant) Representation: Counsel: Mr KP Rewell QC (Plaintiff) Mr AC Canceri of counsel (First Defendant) Solicitors: Sparke Helmore (Plaintiff) CMC Lawyers (First Defendant) Crown Solicitor (Second, Third and Fourth Defendants) File Number(s): 2012/201362