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De Gelder v Rodger (No 2)

De Gelder v Rodger (No 2)

Case [2014] NSWSC 1355 3 October 2014

Jurisdiction

Judicial Review

Failure to Give Reasons

Administrative Law

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Supreme Court

New South Wales

Medium Neutral Citation: De Gelder v Rodger (No 2) [2014] NSWSC 1355
Hearing dates: 21 August 2014
Decision date: 03 October 2014
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1) The Review Panel Certificate issued on 4 February 2014 by the Third Defendant is quashed.
(2) Remit the matter to the Second Defendant to be dealt with according to law.
(3) The First Defendant is to pay the Plaintiff's costs.
(4) The orders made on 30 June 2014 by Rothman J be extended until 10 October 2014.

Catchwords: ADMINISTRATIVE LAW - Motor Accidents Compensation Act 1999 - assessment of whole person impairment by review panel - judicial review of decision of review panel - jurisdictional error - relevant considerations - relevance of contrary assessment by District court Judge - relevance of evidence of witnesses called in District Court proceedings - failure to take into account relevant considerations - whether proved by failure to refer to such considerations - failure to give reasons
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW)
Civil Procedure Act 2005 (NSW)
Cases Cited: Allianz Australia Insurance Limited v Crazzi & Ors [2006] NSWSC 1090; 68 NSWLR 266; 68 NSW LR 266
Allianz Australia Insurance Ltd v Sprod & Ors [2011] NSWSC 1157
Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175
Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372
Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280
De Gelder v Motor Accidents Authority of NSW [2009] NSWSC 1173
De Gelder v Rodger [2012] NSWDC 191
De Gelder v Rodger [2014] NSWSC 872
El-Kazzi v Allianz Australia [2014] NSWSC 927
Frost v Kourouche [2014] NSWCA 39
Golijan v Motor Accidents Authority of NSW [2012] NSWSC 1106
Mason v Demasi [2009] NSWCA 227
Miles v Motor Accidents Authority of NSW & Ors [2013] NSWSC 927; 84 NSWLR 632
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Muralidharan v Minister for Immigration & Ethnic Affairs (1996) 136 ALR 84
Owen v Motor Accidents Authority of NSW [2012] NSWSC 650
QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442
Rodger v De Gelder & Anor (No 2) [2011] NSWCA 235.
Rodger v De Gelder & Anor [2011] NSWCA 97; 80 NSWLR 594
SZCBT v Minister for Immigration and Multicultrual Affairs [2007] FCA 9
Wingfoot Australia Pty Ltd v Kocak [2013] HCA 43; 88 ALJR 52
Category: Principal judgment
Parties: Plaintiff: Adam Roy De Gelder
First Defendant: James Norman Barr Rodger
Second Defendant: Motor Accidents Authority of New South Wales
Third Defendant: Mark Burns, John Carter and Scott Harbison, in their capacity as a "medical assessors review panel" of the Motor Accidents Authority of New South Wales
Representation: Counsel:
P Semmler QC (Plaintiff)
A Canceri (Plaintiff)
M Robinson SC (First Defendant)
A Poljak (First Defendant)
Solicitors:
CMC Lawyers (Plaintiff)
Curwoods Lawyers (First Defendant)
NSW Crown Solicitors (Second and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading De Gelder v Rodger (No 2)

Details

AGLC: De Gelder v Rodger (No 2) [2014] NSWSC 1355
Case: [2014] NSWSC 1355
Decision Date: 03 October 2014

CaseChat Overview and Summary

This case involved an application for judicial review of a decision made by a review panel under the Motor Accidents Compensation Act 1999. The applicant, Mr De Gelder, sought to challenge the assessment of his whole person impairment by the review panel, which he believed to be flawed. The matter was heard by the Queensland Court of Appeal, which was required to determine whether the review panel had made a jurisdictional error in its assessment.

The primary legal issue before the court was whether the review panel had failed to take into account relevant considerations in making its decision. Specifically, the court had to consider the relevance of the contrary assessment of the applicant's impairment by a District Court Judge, as well as the evidence of witnesses called in the District Court proceedings. The applicant argued that the review panel's failure to refer to these considerations constituted a jurisdictional error, as it demonstrated a failure to give proper reasons for its decision.

In its decision, the court held that the review panel had indeed failed to take into account relevant considerations in making its assessment. The court found that the evidence of the District Court Judge and the witnesses called in the District Court proceedings was relevant to the assessment of the applicant's impairment, and that the review panel's failure to refer to this evidence constituted a failure to give reasons for its decision. As a result, the court found that the review panel had made a jurisdictional error in its assessment, and that the decision of the review panel was invalid.

The court ultimately allowed the applicant's application for judicial review, setting aside the decision of the review panel and remitting the matter back to the review panel for reconsideration. The court held that the review panel must take into account all relevant considerations in making its decision, and must provide proper reasons for its decision. The court also noted that the review panel should consider the evidence of the District Court Judge and the witnesses called in the District Court proceedings in making its assessment of the applicant's impairment.

Orders