Allianz Australia Insurance Limited v Lezaja [2015] NSWSC 2038

Supreme Court New South Wales

Medium Neutral Citation: Allianz Australia Insurance Limited v Lezaja [2015] NSWSC 2038 Hearing dates: 14 July 2015 Decision date: 14 July 2015 Jurisdiction: Common Law Before: Adams J Decision: (1) the certificate issued by the third defendant on 27 November 2014 is declared void;

(2) the matter is remitted to the second defendant to be allocated to a claims assessor to be dealt with according to law (with the recommendation that a different claims assessor be appointed); and

(3) I make no order as to costs. Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) Category: Principal judgment Parties: Allianz Australia Insurance Limited (plaintiff) Dragan Lezaja (first defendant) Motor Accidents Authority NSW (second defendant) Paul Wholohan (third defendant) Representation: Counsel: K P Rewell SC (plaintiff) No appearance (first defendant)

Solicitors: McInnes Wilson Lawyers NSW (plaintiff) NSW Compensation Lawyers (first defendant) Crown Solicitor's Office – submitting appearance (second and third defendants) File Number(s): 2014/00370063

Judgment 1. This is an application for prerogative relief by the plaintiff arising out of an assessment made on 27 November 2014 under the Motor Accidents Compensation Act 1999 (NSW). 2. It is unnecessary to enter into the detail of procedural events. It is sufficient to say that that assessment followed an earlier assessment which was made on 19 March 2014. Before the assessor on that occasion were a number of reports of Dr Gibson, who was an occupational physician. In the earlier reports she had given the opinion in substance that the defendant would be fit only for lighter duties which significantly restricted his capacity to work. However, her last report (of 10 November 2013) reflected a significant change of opinion following her viewing of surveillance material. Dr Gibson concluded that there were no grounds for finding any specific work restrictions. This was, in effect, a complete contradiction of her earlier view. It was also the only medical opinion before the assessor which considered the effect of the surveillance material. 3. In his first assessment the assessor, who had all Dr Gibson's reports, in effect ignored that of 10 November 2013 and awarded substantial economic compensation based on the earlier opinion of significant incapacity. 4. For reasons which are presently immaterial, the matter returned to the assessor, triggered by a claim in relation to superannuation which had not earlier been sought but which the defendant now wished to agitate. The plaintiff took the opportunity, as it was entitled to do, also to agitate the question of incapacity, since as it (rightly) appeared to the plaintiff, this aspect of the claim had been overlooked by the assessor on the earlier occasion. In his second assessment, the assessor in effect took the course of adopting what he had earlier said about the claim together with his earlier assessment and added findings relevant to the issue of superannuation. Again, he made no reference to Dr Gibson's 10 November 2013 report. 5. The plaintiff complains that the assessor's reiteration and, in effect, adoption of the earlier findings amounted to an error of law in a number of different ways. The essence of its complaint is that significant, indeed potentially decisive, evidence was not considered at all by the assessor. This is clearly a failure of a decision maker to take into account a relevant matter. Furthermore, since the assessor's reasons do not deal with the November report of Dr Gibson, there is a failure to give reasons that relate to an important issue requiring consideration, namely the extent of incapacity. This is also a jurisdictional failure; aside from general law considerations, s 94 of the Act, requires reasons for an assessment to be given. 6. It follows that the assessment must be quashed. 7. I should add that the first defendant took the course of filing a submitting appearance, and if I may say so, (advisedly) not wishing to incur costs of potentially opposing an application which plainly should succeed, but the parties were unable to agree on the ancillary orders. 8. Accordingly, I make the following orders: - 1. the certificate issued by the third defendant on 27 November 2014 is declared void; 2. the matter is remitted to the second defendant to be allocated to a claims assessor to be dealt with according to law (with the recommendation that a different claims assessor be appointed); and 3. I make no order as to costs.