Lanham v Insurance Australia Group Ltd t/as NRMA Insurance

[2011] NSWSC 1627

Supreme Court

New South Wales

Medium Neutral Citation:

Lanham v Insurance Australia Group Ltd t/as NRMA Insurance [2011] NSWSC 1627

Hearing dates:

06/12/2011

Decision date:

06 December 2011

Before:

Garling J

Decision:

1. Defendants restrained from taking any step pursuant to, or otherwise giving effect to, the purported decision of the Motor Accidents Authority of NSW of 24 August 2011, until further order of this Court.

2. Costs to be costs in the cause.

Catchwords:

PRACTICE AND PROCEDURE - Summons seeking stay of decision of Motor Accidents Authority of NSW for further assessment of plaintiff's injuries - Proceedings listed for hearing in three months - Plaintiff demonstrated reasonably arguable case for administrative law relief - Balance of convenience favours grant of stay - Possible more expedient to require assessment process - Not satisfied that assessment appropriate - Plaintiff inconvenienced by assessment - Plaintiff required to disclose confidential material -Stay granted

Legislation Cited:

Motor Accidents Compensation Act 1999
Supreme Court Act 1970

Category:

Interlocutory applications

Parties:

Peter Sidney Lanham (P)
Insurance Australia Group Ltd t/as NRMA Insurance (1D)
Motor Accidents Authority of New South Wales (2D)

Representation:

M A Robinson SC / A Foel (P)
K Rewell SC (1D)
J Hutton (2D)
Betar Lawyers (P)
Sparke Helmore Lawyers (1D)
Crown Solicitor's Office (2D)

File Number(s):

2011/347584

Publication restriction:

Nil

EX TEMPORE Judgment

1. This is an application by the plaintiff, Peter Sidney Lanham, for a stay on the implementation, or putting into effect of, the decision of 24 August 2011 of the Motor Accidents Authority of New South Wales, with respect to an application made by the first defendant, Insurance Australia Group Limited trading as NRMA Insurance, for a further assessment pursuant to section 62 of the Motor Accidents Compensation Act 1999 ("MAC Act") of the extent of the injuries of the plaintiff as a consequence of a motor vehicle accident.

1. Proceedings were commenced in this court by summons filed on 31 October 2011. On 28 November 2011, the plaintiff filed an amended summons, which seeks the exercise by this Court of its supervisory jurisdiction under s 69 of the Supreme Court Act 1970, with respect to the decision of 24 August 2011.

1. The proceedings upon that summons have been listed for hearing on 27 March 2012 and it is anticipated that the proceedings will occupy half a day.

Grounds of Plaintiff's claim

1. The plaintiff claims that the decision of 24 August 2011 ought be set aside or quashed because there are a number of errors of law contained within it. The errors of law include:

(a)   Whether the decision is, in fact, a decision by the proper officer as required by the statute or by some other person acting on behalf of or with the delegation of the proper officer,

(b) whether the decision has addressed the correct statutory test, namely, whether the officer took into account information that falls within the description "additional relevant information" as that term is used in section 62 of the MAC Act ,

(c)   whether in considering the issues the proper test has been addressed, and

(d) whether as required by the Medical Assessment Guidelines issued under the MAC Act the proper officer has given reasons for their decision.

1. In addition to these typical administrative law grounds the plaintiff advances an argument that the first defendant and the second defendant, or both of them, are estopped from denying that the plaintiff's injury to his left shoulder is caused by the motor vehicle accident on 23 October 2008, because of conduct by way of admissions and making payments in accordance with the statutory obligation under section 83(2)(c) of the MAC Act . Both counsel have informed the Court, and I accept, that neither are aware of a previous decision on such a point having arisen and been considered by the courts.

Reasonably arguable case

1. Initially, in considering whether or not the stay ought to be granted, it is necessary that I consider whether the plaintiff has demonstrated a reasonably arguable case for the relief that is sought.

1. Mr Rewell SC, for the first defendant, submits that with respect to the estoppel argument, that the plaintiff has not discharged its onus of demonstrating a reasonably arguable case. However, his submissions do not suggest, and I can say fairly so, that there was not a reasonably arguable case for relief based on the administrative law grounds.

1. In those circumstances, it is better that I express no view at all about the plaintiff's claim for an estoppel arising as I have earlier described. It is sufficient for me to conclude that I am satisfied to the extent that I need to be at this stage, that the plaintiff has demonstrated a reasonably arguable case for administrative law relief with respect to the decision of 24 August 2011.

Balance of Convenience

1. It is then a matter for the Court to consider whether the balance of convenience favours the grant of a stay or whether, as the first defendant puts it, it would be better to allow the steps which are relatively inexpensive and quick involved in the reassessment of the plaintiff to occur, so that there is no undue delay to a further assessment if the Court does not grant the relief which the plaintiff seeks at the final hearing.

1. Shortly put, NRMA's argument is that if a further assessment takes place and the reassessment does not produce a result that the whole person impairment of the plaintiff is 10 per cent or less, but rather produces a result where the extent of the whole person impairment is 11 per cent or more, then there would be no useful point to be served, in terms of any practical result by the Court addressing the lawfulness of the decision of 24 August 2011. On the other hand, NRMA submits that if the Court was to quash the decision and grant relief in respect of it, then the medical assessment certificate will also be quashed or rendered nugatory, with no long term prejudice being occasioned.

1. I must confess to having found NRMA's submissions superficially attractive. However, upon reflection and careful consideration I cannot accept them.

1. The proceedings are about the lawfulness of the decision of 24 August 2011. I use that term in the broad sense. If there is a reasonably arguable case that that decision ought be set aside and I am satisfied that there is such a case, then I can see force in the arguments put by the plaintiff, that subjecting the plaintiff to a process mandated by the statute and the decision of 24 August 2011, where there is no proper basis for that process, would be inappropriate.

1. The preferable view is, I think, that it would be better for the plaintiff and any further assessment of him to await the determination by the Court on 27 March 2012, before being subjected to a further assessment.

1. It is not to be forgotten that the undertaking of further assessments puts the plaintiff to inconvenience, if not expense, in having to organise their day to attend and going through the assessment process and then returning home. As well, it requires the plaintiff to disclose material which is otherwise confidential, namely, the sort of material one would disclose to a doctor. As well, in this case, no doubt, the plaintiff would be asked by a thoroughly briefed assessor the position with respect to the information which the proper officer described as "new" and what the plaintiff's explanation is for the differentiation between the information which was originally provided and the material in this "new information".

1. I don't think that all that is involved in exposing a plaintiff to that procedure and process is something which can be lightly put to one side. Whilst I accept that it may be more expedient to require the plaintiff to go through this process, I am not satisfied that it is appropriate to require a plaintiff so to do.

1. In those circumstances, it seems to me, that the balance of convenience favours the grant of a stay and that will be the order of the Court. I make the following orders:

(1)   That each of the defendants be restrained from taking any step pursuant to, or otherwise giving effect to, the purported decision of the Motor Accidents Authority of New South Wales dated 24 August 2011 until further order of this court.

(2)   The costs of this motion will be costs in the cause.

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Decision last updated: 10 January 2012