Insurance Australia Limited t/a NRMA Limited v Michael (Woclaw) Kresan [2015] NSWSC 422

Supreme Court New South Wales

Medium Neutral Citation: Insurance Australia Limited t/a NRMA Limited v Michael (Woclaw) Kresan [2015] NSWSC 422 Hearing dates: 7 April 2015 Date of orders: 17 April 2015 Decision date: 17 April 2015 Jurisdiction: Common Law Before: R S Hulme AJ Decision: 1. An order in the nature of Certiorari quashing the decision of the Second Defendant made on 24 July 2014 in proceedings in respect of which the First Defendant was the Claimant.

2. Remit to the Third Defendant the Plaintiff's application under s 62 of the Motor Accidents Compensation Act in proceedings in respect of which the First Defendant was the Claimant, such application to be dealt with by a Proper Officer other than the Second Defendant and according to law.

3. Reserve the question of costs.

4. Grant liberty to the Plaintiff to apply for an order for costs on 14 days' written notice to any Defendant against whom such an order is sought providing such notice is given within 14 days of this decision. Catchwords: ADMINISTRATIVE LAW – Motor Accidents Compensation Act 1999 – further medical assessment – judicial review of decision of proper officer – jurisdictional error – unreasonableness – illogical or irrational – constructive failure to exercise jurisdiction Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) Cases Cited: Craig v State of New South Wales (1995) 184 CLR 163 El-Kazzi v Allianz Australia Insurance Ltd [2014] NSWSC 927 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12; (2004) 78 ALJR 992 QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 Rodger v De Gelder [2011] 80 NSWLR 594 Category: Principal judgment Parties: Insurance Australia Limited t/a NRMA Limited (Plaintiff) Micahel (Woclaw) Kresan (First Defedant) Jane Probert in her capacity as Proper Officer of the Motor Accidents Authority of New South Wales (Second Defendant) Motor Accidents Authority of New South Wales (Third Defendant) Representation: Counsel: A Poljak (Plaintiff)