AAI Limited v Fitzpatrick (No 2) [2015] NSWSC 1272

Supreme Court New South Wales

Medium Neutral Citation: AAI Limited v Fitzpatrick (No 2) [2015] NSWSC 1272 Hearing dates: Written submissions Date of orders: 03 September 2015 Decision date: 03 September 2015 Jurisdiction: Common Law Before: Schmidt J Decision: 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: COSTS – whether there should be a departure from the usual rule that costs follow the event – costs ordered under the usual basis - certificate sought – Suitors' Fund Act 1951 – whether judicial review proceedings involved an "appeal" as defined in s 2 of the Suitors' Fund Act – whether medical assessor or proper officer are a "court" under s 6 of the Suitors' Fund Act – no power to issue certificate under s 6 Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) Suitors' Fund Act 1951 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: AAI Limited v Fitzpatrick [2015] NSWSC 1108 Allianz Australia Insurance Limited v Mackenzie (No 2) [2014] NSWSC 254 Allianz Australia Insurance Ltd v Roger Ward [2010] NSWSC 720 Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 Ex parte Parsons; Re Suitors' Fund Act (1952) 69 WN (NSW) 380 Ferguson v Singler (No 3) [2015] NSWSC 1154 GIO General Limited v Smith; Insurance Australia Ltd t/as NRMA Insurance V Smith & Ors (No 2) [2011] NSWSC 998 Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480 IAG Ltd v Riley [2013] NSWSC 684 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 QBE Insurance (Australia) Ltd v Henderson [2012] NSWSC 1607 Rodger v De Gelder & Anor [2011] NSWCA 97; (2011) 80 NSWLR 594 Shell Oil Co of Australia Ltd v Federal Commissioner of Taxation [1931] AC 275 Category: Costs 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)