Munro v Motor Accidents Authority of New South Wales

[2008] NSWSC 366

CITATION:	Munro v Motor Accidents Authority of New South Wales [2008] NSWSC 366
HEARING DATE(S):	30 April 2008
JUDGMENT DATE :	2 May 2008
JUDGMENT OF:	Malpass AsJ
DECISION:	Proceedings dismissed; plaintiff to pay the costs of the proceedings.
CATCHWORDS:	ADMINISTRATIVE LAW - judicial review - discretionary relief - futility
CATEGORY:	Principal judgment
PARTIES:	Amanda Marie Munro (Plaintiff) Motor Accidents Authority of NSW (First defendant) Allianz Australia Insurance (Second defendant)
FILE NUMBER(S):	SC 30001/08
COUNSEL:	R Royle (Plaintiff) EG Romaniuk (Second defendant)
SOLICITORS:	Aubrey Brown Partners (Plaintiff) IV Knight, Crown Solicitor (First defendant) Dibbs Abbott Stillman (Second defendant)
LOWER COURT JURISDICTION:	Motor Accidents Authority Claims Assessment and Resolution Service
LOWER COURT FILE NUMBER(S):	2006/12/0446CC
LOWER COURT JUDICIAL OFFICER :	Assessor J Turnbull
LOWER COURT DATE OF DECISION:	28 November 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

Associate Justice Malpass

Friday 2 May 2008

30001/08 Amanda Marie Munro v Motor Accidents Authority of NSW

JUDGMENT

1 HIS HONOUR: The plaintiff was injured in a motor vehicle accident on 1 May 2006. The second defendant is the relevant insurer. It made an admission of liability.

2 She made a claim for damages pursuant to the Motor Accidents Compensation Act 1999 (“the Act”). As part of that claim, she wishes to recover non-economic loss. This requires either an assessment of whole person impairment (WPI) in excess of 10% or a concession to that effect from the second defendant.

3 The initial stance taken by the second defendant was one of disputation. Assessments were obtained from Doctors Meares and Thompson. The effect of the assessments was a WPI of 9% in circumstances where the impairment of the lumbar spine had not stabilised.

4 The matter was referred to an Assessor (Mr Turnbull). There were various preliminary conferences. The plaintiff made known her intention to apply for a further assessment of WPI. This was followed by a concession made by the second defendant in a letter dated 21 August 2007.

5 A general assessment conference was listed to take place on 11 December 2007. Prior to that time, the parties had come to a position where both were ready to proceed to hearing. A settlement conference held on 20 November 2007 failed to produce a resolution.

6 By letter dated 26 November 2007, the second defendant advised that it now wished to dispute that the plaintiff’s WPI exceeded the threshold of 10%. This led to the holding of an emergency conference with the Assessor on 28 November 2007.

7 The evidence as to what took place during that conference consists of a further preliminary conference report prepared by the Assessor. The report occupies some three pages and contains, inter alia, the following:

“8. I have spent considerable time re-reading the various documentation I have been taken to. I am loathe to adjourn the matter. However I am conscious that the situation arose because of the concession made by the insurer in an attempt to stop the further MAS application by the claimant proceeding. I assume this was done to expedite the matter as much as possible. Mr Hanna tells me, and I accept, that he is now instructed to make this application by his client who has, presumably, recently looked at the documentation.
9. In my view the material on which the insurer relies warrants the making of a further application for whole person impairment assessment.
10. As disinclined as I am to adjourn the matter it seems to me that I should allow the insurer this indulgence and adjourn the matter to allow a further application to MAS to be made. In this regard I am mindful that such an application was filed by the claimant some time prior to 21 August 2007. It is true that the matter may well have been dealt with by now in the MAS procedures and that the matter could therefore proceed to hearing. It is unfortunate that a delay of some weeks, or probably months, will now occur. Nevertheless, on balance I do not believe that the claimant has been irreparably prejudiced and I believe that the adjournment should be granted.”

8 The orders made by the Assessor were as follows:

“1. The assessment conference listed on 11 December 2007 is hereby vacated.
2. The matter is listed for a further preliminary conference on 1 February 2008 at 8:45am.
If anything occurs to cause this timetable to be varied, the party seeking the variation is to contact the other party and let me know of the variation sought and the attitude of the other party.”

9 The plaintiff was dissatisfied with that result. It is contended that there was error in the exercise of discretion (by way of taking into account extraneous matters and not taking into account relevant matters). One particular matter that is stressed was an alleged erroneous assumption which can be found in paragraph 8 of the report. Another, is an alleged failure to take into account the matter that an adjournment would see the plaintiff throwing away about $5,000.00 in legal costs.

10 At that time, it was open to the plaintiff to either proceed with the obtaining of a further assessment or have the Assessor determine the issues between the parties concerning the purported withdrawal of the concession. Unfortunately, the plaintiff did neither of those things. Instead, a misconceived application was made to this Court.

11 A Summons was filed on 24 December 2007. Subsequently an Amended Summons was filed on 8 February 2008. The proceedings in this Court were brought out of time and an extension of time is sought.

12 The relief presently sought includes the following:

“1. An order setting aside the decision of Assessor J Turnbull on 28 November 2007 vacating the Assessment Conference set down for 11 December 2007.
2. An order that the matter be remitted for further consideration by the decision maker or some other officer for reconsideration and redetermination according to law.”

13 The hearing of the proceedings took place on 30 April 2008. At the commencement of the hearing a question of the utility of the granting of the relief sought was raised by the Court. Initially, it seemed that this may have been accepted as a real problem. The plaintiff tentatively raised a contention that the concession issues had been decided by the Assessor and that a further amendment of the Summons may be sought. This approach was later abandoned.

14 The parties were given an adjournment for the purposes of attempting a resolution concerning the further progress of the matter. Although some considerable time was taken up in this endeavour, the exercise proved to be of no avail. The plaintiff returned to Court and took the stand of proceeding with a hearing, seeking the relief claimed in the Amended Summons.

15 The plaintiff seeks a judicial review pursuant to s 69 of the Supreme Court Act 1970. The plaintiff needs to demonstrate judicial error or error of law on the face of the record that is material to the decision. The granting of relief is discretionary.

16 The question of extension of time was not the subject of argument. Accordingly, I put it to one side.

17 Whilst argument has been directed to the question of error, in my view, it is unnecessary to address what has been said on that matter. It seems to me that what is sought is doomed to failure for discretionary reasons.

18 The Court is asked to set aside a decision that saw in effect the vacation of a hearing date. The vacated date is now a relic of the past and cannot be reinstated. There is no utility whatsoever in the setting aside of the decision of the Assessor.

19 The proceedings remain in the hands of the Assessor. They can be re-listed before him on application by either party. The plaintiff remains at liberty to seek from him whatever relief is desired by her.

20 For this reason alone, I consider that the plaintiff’s claim for relief is doomed to failure. In my view, these proceedings were an exercise in futility.

21 Leaving aside what has been earlier said, it seems to me that the Court will generally be loathe to interfere in decisions of an interlocutory nature (particularly so, in a case such as this, where what is being sought to be disturbed is a decision on a listing date). The function of the Court pursuant to s 69 implications is to review decisions having regard to considerations of judicial error or error of law on the face of the record. It is not to otherwise interfere in the conduct of proceedings before a Tribunal.

22 The proceedings are dismissed. The plaintiff is to pay the costs of the proceedings. The exhibit may be returned.

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