Beazley P at [1]; Basten JA at [2]; Leeming JA at [3]
Decision:
1. Extend the time within which a notice of appeal is to be filed until 13 August 2013.
2. Appeal allowed.
3. Set aside the orders made by the District Court on 15 February 2013, and in lieu thereof, order that Ms Kourouche's motion filed 18 December 2012 be dismissed with costs.
4. Ms Kourouche to pay Ms Frost's costs of the appeal and the application for leave, excluding costs attributable to the failure to file the notice of appeal within time.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
ADMINISTRATIVE LAW - content of obligation to accord procedural fairness - review panel reviewing medical assessment under Motor Accidents Compensation Act - whether denial of procedural fairness - where review panel confronted applicant and gave opportunity to respond to inconsistencies - whether review panel obliged to grant adjournment, give opportunity to applicant to consult with her solicitor and then address panel - no practical injustice - no obligation to give warning by analogy with Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 - no denial of procedural fairness - Motor Accidents Compensation Act, s 61(4).
MOTOR VEHICLE LAW - medical assessment certificate - power of court to reject certificate for denial of procedural fairness - no denial of procedural fairness established
Motor Accident Authority, "Guidelines for the assessment of the degree of permanent impairment", 1 October 2007, cl 1.43 Motor Accident Authority, "Medical Assessment Guidelines", 1 October 2008
[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.
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Details
AGLC
Frost v Kourouche [2014] NSWCA 39
Case
[2014] NSWCA 39
Decision Date
CaseChat Overview and Summary
The New South Wales Court of Appeal considered an appeal by Ms Frost concerning a review panel's decision regarding a medical assessment certificate under the *Motor Accidents Compensation Act*. Ms Kourouche, the applicant, had sought to have the medical assessment certificate rejected by the District Court on the grounds of a denial of procedural fairness by the review panel.
The central legal issue before the Court of Appeal was whether the review panel had denied Ms Kourouche procedural fairness when it confronted her with inconsistencies in her medical evidence and provided her with an opportunity to respond, without granting an adjournment for her to consult with her solicitor. The court also had to determine if the District Court erred in finding a denial of procedural fairness and consequently having the power to reject the medical assessment certificate.
The Court of Appeal reasoned that the review panel had fulfilled its obligation to accord procedural fairness by confronting Ms Kourouche with the perceived inconsistencies and giving her a direct opportunity to address them. The court distinguished the present circumstances from cases where an adjournment might be necessary, finding that no practical injustice had occurred. It was held that the review panel was not obliged to grant an adjournment or facilitate consultation with a solicitor, nor was it required to provide a warning by analogy with the principles in *Parker v Director of Public Prosecutions*. Consequently, the court found no denial of procedural fairness.
The Court of Appeal allowed the appeal, set aside the District Court's orders, and dismissed Ms Kourouche's motion. Ms Kourouche was ordered to pay Ms Frost's costs of the appeal and the application for leave.
Orders
Orders of the court
1. Extend the time within which a notice of appeal is to be filed until 13 August 2013.
2. Appeal allowed.
3. Set aside the orders made by the District Court on 15 February 2013, and in lieu thereof, order that Ms Kourouche's motion filed 18 December 2012 be dismissed with costs.
4. Ms Kourouche to pay Ms Frost's costs of the appeal and the application for leave, excluding costs attributable to the failure to file the notice of appeal within time.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]