Allianz Australia Insurance Ltd v Gonzalez (No 2) [2015] NSWSC 693

Supreme Court New South Wales

Medium Neutral Citation: Allianz Australia Insurance Ltd v Gonzalez (No 2) [2015] NSWSC 693 Hearing dates: 1 June 2015 Date of orders: 05 June 2015 Decision date: 05 June 2015 Jurisdiction: Common Law Before: Campbell J Decision: I make the following orders: Dissolve the interim order made on 20th November 2014 restraining the then second and third defendants from proceeding with a further medical assessment; Amend the record so the only defendants are described as, Carmen Ruth Gonzalez as first defendant; the Motor Accidents Claims Assessment and Resolution Service as second defendant; and the Proper Officer of the Motor Accidents Authority of New South Wales as third defendant; The proceedings are dismissed; The plaintiff to pay the first defendant's costs of and incidental to the proceedings, on the ordinary basis forthwith after they have been agreed or assessed. Catchwords: ADMINISTRATIVE LAW – judicial review – motor accident damages – decision of claims assessor – whether infected by jurisdictional error – whether the claims assessor took into account an irrelevant consideration or failed to take into account a relevant consideration – whether referral was "grossly illogical" – whether error of law

TRAFFIC LAW – Motor Accidents Compensation Act 1999 – motor accident damages – where claimant "bullied" following motor vehicle collision – referral to proper officer under s 62(1)(b) for reassessment by claims assessor – where claims assessor wrote letter outlining background and posing questions for proper officer to answer Legislation Cited: Civil Liability Act 2002 (NSW); Motor Accidents Compensation Act 1999 (NSW) Cases Cited: Allianz Australia Insurance Limited v Gonzalez [2013] NSWSC 362; Allianz Australia Insurance Limited v GSF Australia Pty Ltd [2005] HCA 26; 221 CLR 568; Buck v Bavone [1976] HCA 24; 135 CLR 110; Campbelltown City Council v Vegan [2006] NSWCA 284; Foley v Padley (1983) 154 CLR 349 Hot Holdings Pty Ltd v Creasey [1986] HCA 44; 185 CLR 149; House v The King (1936) 55 CLR 499; Miles v Motor Accidents Authority of New South Wales [2013] NSWSC 927; 84 NSWLR 632; Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors [1986] HCA 40; 162 CLR 24; Minister for Immigration & Citizenship v Li [2013] HCA 18; 249 CLR 332; Motor Accidents Authority of New South Wales v Mills [2010] NSWCA 82; 78 NSWLR 125; Nominal Defendant v Hawkins [2011] NSWCA 93; 58 MVR 362; Peet v NRMA Insurance Ltd [2015] NSWSC 558; Rodger v De Gelder [2011] NSWCA 97; 80 NSWLR 594; Ryder v Sundance Bakehouse [2015] NSWSC 526; Swan Hill Corporation v Bradbury (1937) 56 CLR 746; Trazivuk v Motor Accidents Authority of New South Wales [2010] NSWCA 287; 57 MVR 9 Texts Cited: Motor Accidents Authority - Medical Assessment Guidelines Category: Principal judgment Parties: Allianz Australia Insurance Ltd (Plaintiff) Carmen Ruth Gonzalez (First Defendant) Representation: Counsel: K.P. Rewell SC (Plaintiff) M.A. Robinson SC with J Gumbert (First Defendant)