Insurance Australia Limited t/as NRMA Insurance v Asaner [2016] NSWSC 614

Supreme Court New South Wales

Medium Neutral Citation: Insurance Australia Limited t/as NRMA Insurance v Asaner [2016] NSWSC 614 Hearing dates: 6 May 2016 Date of orders: 06 May 2016 Decision date: 06 May 2016 Jurisdiction: Common Law Before: Campbell J Decision: I reject the affidavit of Kirrilee Siobhan Kennedy of 18 January 2016. Catchwords: EVIDENCE – admissibility and relevance – hearsay– whether evidence constitutes an admission – where admission involves application of legal standard

ADMINISTRATIVE LAW – evidence – proof of jurisdictional error – means of proof - admission Legislation Cited: Evidence Act 1995 (NSW) Motor Accidents Compensation Act 1999 (NSW) Cases Cited: Dovuro Pty Ltd v Wilkins [2003] HCA 51; 215 CLR 317 Hollington v Hewthorn & Company Limited [1943] KB 587 Category: Procedural and other rulings Parties: Insurance Australia Limited t/as NRMA (Plaintiff)

Hakan Asaner (Defendant) Representation: Counsel: M Robinson SC with A Poljak (Plaintiff) E Romaniuk SC with E Grotte (Defendant)

Solicitors: Hall & Wilcox (Plaintiff) AJB Stevens Lawyers (Defendant) File Number(s): 2015/349885

EX TeMPORE Judgment (REVISED) 1. This is an application for judicial review of a decision made by the proper officer of the State Insurance Regulatory Authority under s 62(1A) Motor Accidents Compensation Act 1999 (NSW). The decision is sought to be impugned on the basis of what are said to be, primarily, jurisdictional errors. Mr Robinson SC, who appears with Ms Poljak for the plaintiff, has tendered a letter dated 9 December 2015 from an officer of the authority described in the letter as the "Manager, Case Management Services, Proper Officer, Medical Assessment Service". Mr Romanuik SC, who appears with Ms Grotte, for the first defendant, objects to its tender. The tender is pressed on the basis that the letter contains an "admission" of error. 2. The passage specifically relied upon is in the following terms: "In this case, the decision issued by the proper officer on the 28th of August 2015 contains an error as it does not address all of the evidence supplied in support of the application, in accordance with section 62(1A) of the Act. The proper officer's decision appears to have addressed the surveillance film only with reference to the report of Dr Harvey-Sutton as opposed to addressing it separately, on its own merits in accordance with the requirements of the Act." [Emphasis added] 1. Mr Robinson submits that this is an admission of fact and accordingly is admissible as an exception to the hearsay and opinion rules under s 81 of the Evidence Act 1995 (NSW). 2. "Admission" is defined in the dictionary to the Evidence Act 1995 in the following terms: "Admission means a previous representation that is: a) made by a person who is or becomes a party to a proceeding …, and b) adverse to the person's interest in the outcome of the proceeding." 1. It should be noticed that s 87 of the Act extends the scope of the exception created by s 81 to representations made with authority. 2. I am prepared to assume that the author of the putative admission is an employee of State Insurance Regulatory Authority named as the second defendant in these proceedings and the statement deals with matters within the scope of her employment. To that extent it may be said that the contents of the letter of 9 December 2015 are a previous representation made on behalf of a party. 3. A number of questions remain. In particular, a question arises as to whether the representation is "adverse to the person's interest in the outcome of the proceedings?" It may be said I think, and justly so, that the authority has no interest in the outcome of the proceedings. In accordance with the practice and convention observed in litigation of this type, the authority and the proper officer who made the decision under challenge have filed submitting appearances. It is too much of a stretch of the concept of "statements adverse to interest" to extend it a government authority who has no interest in the outcome of the proceedings and whose only part in the proceedings is as the decision-maker making the impugned decision. 4. Moreover, I am not satisfied that the representation contained in the letter relied upon is an admission of fact. It is well established, I think, by the decision of the High Court of Australia in Dovuro Pty Ltd v Wilkins [2003] HCA 51; 215 CLR 317 that "admissions" involving the application of a legal standard are not admissible, and if they were admitted without objection, are entitled to very little weight. 5. I am of the view that, at best, this material to the extent to which it purports to "admit" error falls into that category. It is quite clear that the author of the previous representation is making statements about whether the decision under review on 28 August 2015 met legal standards. This is made clear by the use of the phrase "in accordance with section 62(1A) of the Act" and the phrase "in accordance with the requirements of the Act." She is obviously applying a legal standard. 6. Moreover, there are conceptual difficulties about admissions whether a legal standard has been observed by a decision-maker or authority who has no authority to conclusively state the law. 7. Finally, I am also of the view that Mr Romanuik has correctly characterised the statement as no more than an expression of opinion. Although s 81 makes an admission an exceptions to the opinion rule, it is not shown that the type of opinion expressed by the author of the letter fits in with either the lay opinion or expert opinion exceptions. It certainly does not appear to comply with the conditions for admission of an expert opinion. Questions would arise about the continued vitality of the rule in Hollington v Hewthorn & Company Limited [1943] KB 587 after the enactment of the Evidence Act. 8. The purpose of all evidence is to prove the existence of relevant facts. The letter as I have said, of Ms Probert does not contain, in my judgment, an admission of any fact relevant in these proceedings. Accordingly, I reject the affidavit of Kirrilee Siobhan Kennedy of 18 January 2016.