Insurance Australia Ltd t/as NRMA Insurance v Pate [2016] NSWSC 278

Supreme Court New South Wales

Medium Neutral Citation: Insurance Australia Ltd t/as NRMA Insurance v Pate [2016] NSWSC 278 Hearing dates: 4 December 2015 and written submissions Date of orders: 18 March 2016 Decision date: 18 March 2016 Jurisdiction: Common Law Before: Schmidt J Decision: (1) The assessor's decision be set aside. (2) Mrs Pate's application for damages under the Motor Accidents Compensation Act be assessed according to law. (3) Unless the parties approach within 14 days, the Court's order as to costs is that the first defendant must bear the plaintiff'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: JUDCIAL REVIEW – compensation for past and future economic losses – admissibility of certain evidence – whether assessor erred in failing to deal with an issue relied on by defendant – whether assessor took into account an irrelevant consideration – error established – assessor's decision set aside – costs Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; (2012) 61 MVR 443 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Brown v Lewis [2006] NSWCA 87; (2006) 65 NSWLR 587 Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 Frost v Kourouche [2014] NSWCA 39 Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; [1986] 162 CLR 24 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Pham v Shui [2006] NSWCA 373 QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34; (2001) 179 ALR 513 Insurance Australia Limited trading as NRMA Insurance v Helou [2008] NSWCA 240 Category: Principal judgment Parties: Insurance Australia Ltd t/as NRMA Insurance (Plaintiff) Sharon Pate (First Defendant) The Motor Accidents Authority of New South Wales ("MAA") (Second Defendant) Allen Cowley (in his capacity as a claims Assessor by the Second Defendant) (Third Defendant) Representation: Counsel: Mr R Rewell SC (Plaintiff) Mr E G Romaniuk SC with Mr G M Radburn (First Defendant)