Pham v NRMA Insurance Ltd [2014] NSWCA 22

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Pham v NRMA Insurance Ltd [2014] NSWCA 22 Hearing dates: 4 February 2014 Decision date: 19 February 2014 Before: Macfarlan JA at [1]; Leeming JA at [23]; Tobias AJA at [36] Decision: (1) Appeal allowed. (2) Declaration and orders made by Hall J on 3 May 2013 and any order for costs made by him subsequent to that date are set aside. (3) Order that the Summons filed on 5 June 2012 be dismissed. (4) Order the first respondent in this Court to pay the appellant's costs of the proceedings at first instance and on appeal. (5) Direct the Registrar of the Court to refer this judgment to the Commissioner of Taxation for consideration. [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 - judicial review - Motor Accidents Compensation Act 1999 ss 94(5), 126 - claimant operated dry cleaning business - whether claims assessor erred in assessing damages for future economic loss by concluding in the absence of evidence that claimant would have been forced to close his business and seek salaried employment - held that assessor did not conclude this but simply that earnings of a salaried employee were an appropriate guide to minimum loss of business income - significance of claimant's failure to disclose full business earnings in taxation returns - discussion of assessor's obligation to give reasons Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), ss 90, 94, 99, 106, 122, 126 Supreme Court Act 1970 (NSW), s 69 Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302 Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; 174 CLR 64 Commissioner of Taxation v Glennan [1999] FCA 297; 90 FCR 538 Craig v South Australia [1995] HCA 58; 184 CLR 163 Guzman v Zammit [2003] NSWCA 224 Matar v Jones [2011] NSWCA 304 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 Morvatjou v Moradkhani [2013] NSWCA 157 Nelson v Nelson (1995) 184 CLR 538 Overseers of the Poor of Walsall v London and North Western Railway Co (1878) 4 AC 30 Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106/2011 v Minister for Immigration and Citizenship [2011] HCA 32; 244 CLR 144 Skalkos v T & S Recoveries Pty Ltd [2004] FCAFC 321; 141 FCR 107 State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536 Category: Principal judgment Parties: Thang Van Pham (Appellant) NRMA Insurance Ltd (First Respondent) Elyse White (Second Respondent) Motor Accidents Authority of New South Wales (Third Respondent) Representation: Counsel: M Daley (Appellant) M A Robinson SC/A Poljak (First Respondent) Submitting appearances (Second and Third Respondents) Solicitors: MN Compensation Lawyers (Appellant) Holman Webb (First Respondent) Crown Solicitor's Office (Second and Third Respondents) File Number(s): CA 2013/167337 Decision under appeal Jurisdiction: 9111 Citation: NRMA Insurance Limited v Pham [2013] NSWSC 468 Date of Decision: 2013-05-03 00:00:00 Before: Hall J File Number(s): 2012/178133