AAI Limited v Fitzpatrick [2015] NSWSC 1108

Supreme Court New South Wales

Medium Neutral Citation: AAI Limited v Fitzpatrick [2015] NSWSC 1108 Hearing dates: 1 July 2015 Date of orders: 10 August 2015 Decision date: 10 August 2015 Jurisdiction: Common Law Before: Schmidt J Decision: Judgment for AAI. The usual order as to costs is that they follow the event. In this case, that would be an order that Mr Fitzpatrick pay AAI's costs, as agreed or assessed. Unless the parties approach within 7 days to be heard, the Court's order be: 1. Time for the commencement of these proceedings be extended to the date of filing the summons. 2. The decisions of both the assessor and the proper officer be set aside and the matter be remitted to the second defendant for reallocation of the matter to a different medical assessor for determination of the matters raised by Mr Fitzpatrick's application according to law. 3. Mr Fitzpatrick is to bear AAI's costs as agreed or assessed. 4. All exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined. Catchwords: ADMINISTRATIVE LAW – judicial review – reviewable decisions and conduct – motor accident – challenge to validity of assessment and review decisions – whether application was brought within time – legislative scheme – whether assessors failed to give reasons – jurisdictional error – whether assessor failed to consider relevant material – proper officer's alleged failures – decisions set aside – matter remitted Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 Mason v Demasi [2009] NSWCA 227 Meeuwissen v Boden [2010] NSWCA 253; (2010) 78 NSWLR 143 Minister for Aboriginal Affairs v Peko-Walsend [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration v Yusuf [2001] HCA 323; (2001) 206 CLR 323 Owen v Motor Accidents Authority of NSW [2012] NSWSC 650; (2010) 61 MVR 245 Rodger v De Gelder [2011] NSWCA 97; 80 NSWLR 594 Trazivuk v Motor Accidents Authority of New South Wales [2010] NSWCA 287; 57 MVR 9 Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 Category: Principal judgment Parties: AAI Limited ABN 48 005 297 807 trading as AAMI (Plaintiff) Mark Allen Fitzpatrick (First Defendant) Motor Accidents Authority of New South Wales ("MAA") Second Defendant David Crocker, in his capacity as a medical assessor of the MAA (Third Defendant) Representation: Counsel: Mr MA Robinson SC with Ms A Poljak (Plaintiff) Mr EG Romaniuk SC with Ms H Wall (First Defendant)