NRMA Insurance Ltd v Ainsworth - [2011] NSWCA 292

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: NRMA Insurance Limited v Ainsworth [2011] NSWCA 292
Hearing dates: 7 September 2011
Decision date: 07 September 2011
Before: Allsop P at 19;
Basten JA at 1
Decision:
(1) Application for leave to appeal dismissed.
(2) The applicant is to pay the respondent's costs.
(3) The Court notes the respondent's undertaking to repay the amount of $2,363.
[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 - judicial review of certificate of assessor in motor vehicle case - error in allowing head of damage involving less than 1% of award - discretionary refusal of relief - adequacy of reasons for rejection of applicant's medical evidence

APPEAL - civil - application for leave to appeal - whether assessor gave adequate reasons for rejecting medical evidence - whether judgment below arguably erroneous - "no evidence" ground - whether constituting jurisdictional error - whether discretionary refusal of relief arguably erroneous
PROCEDURE - civil - proceedings - discretionary refusal of judicial review - quick, cheap and just resolution of the real issues between the parties - public interest to be taken into account - Civil Procedure Act 2005 (NSW), s 56
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-60
Motor Accidents Compensation Act 1999 (NSW), ss 94, 128
Supreme Court Act 1970 (NSW). ss 69, 101
Cases Cited: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992
Category: Principal judgment
Parties: NRMA Insurance Ltd - Applicant
Jennifer Anne Ainsworth - First Respondent
Colin Stoten - Second Respondent
Motor Accidents Authority of New South Wales - Third Respondent
Representation:
Counsel:

Mr M A Robinson - Applicant
Mr M J Perry - First Respondent
Submitting appearances for Second and Third Respondents
Solicitors:
Moray & Agnew Lawyers - Applicant
Fishburn Watson O'Brien - First Respondent
I V Knight, Crown Solicitor - Second and Third Respondents

File Number(s): CA 2011/8996
Decision under appeal

Citation:

NRMA Insurance Limited v Ainsworth [2011] NSWSC 344

Date of Decision:

2011-04-29 00:00:00

Before:

Rothman J

File Number(s):

SC 2011/8996

Judgment

BASTEN JA : On 10 January 2007 the respondent, Ms Ainsworth, was injured in a collision whilst driving a motor vehicle. Liability having been accepted by the applicant for leave to appeal, an assessment was undertaken in accordance with s 94(5) of the Motor Accidents Compensation Act 1999 (NSW). That assessment resulted in an award of damages in an amount in excess of $600,000 in favour of Ms Ainsworth.

Proceedings were commenced in the Common Law Division on 11 January 2011 seeking judicial review of the certificate and award of the…

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.

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Details

Case: [2011] NSWCA 292
Decision Date: 07 September 2011

CaseChat Overview and Summary

The case of *NRMA Insurance Ltd v Ainsworth* concerned an application for leave to appeal a decision of the Supreme Court of New South Wales, which had refused to grant judicial review of a certificate issued by a motor vehicle assessor. The applicant, NRMA Insurance Ltd, sought to challenge the assessor's decision, particularly an error involving a head of damage that constituted less than 1% of the total award. The primary dispute revolved around whether the assessor had provided adequate reasons for rejecting the applicant's medical evidence.

The central legal issues before the Court of Appeal were whether the primary judge had erred in refusing judicial review, whether the assessor's rejection of the applicant's medical evidence was based on inadequate reasons, and if this constituted a jurisdictional error. The Court also considered whether the primary judge's discretionary refusal of relief was arguably erroneous, taking into account the overarching objectives of achieving a quick, cheap, and just resolution of the real issues and the public interest, as guided by section 56 of the *Civil Procedure Act 2005* (NSW).

The Court of Appeal dismissed the application for leave to appeal. Their reasoning focused on the discretionary nature of judicial review and the principle that relief should not be granted where the error is trivial or inconsequential, especially when weighed against the public interest in the efficient and just resolution of disputes. The Court found that the error identified by the applicant, involving a minor component of the overall award, did not warrant the intervention of judicial review, and that the primary judge's refusal of relief was not arguably erroneous. The Court also noted the respondent's undertaking to repay a specific amount, which was $2,363.

Orders

Orders of the court

(1) Application for leave to appeal dismissed.

(2) The applicant is to pay the respondent's costs.

(3) The Court notes the respondent's undertaking to repay the amount of $2,363.

[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.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	NRMA Insurance Limited v Ainsworth [2011] NSWCA 292
Hearing dates:	7 September 2011
Decision date:	07 September 2011
Before:	Allsop P at 19; Basten JA at 1
Decision:	(1) Application for leave to appeal dismissed. (2) The applicant is to pay the respondent's costs. (3) The Court notes the respondent's undertaking to repay the amount of $2,363. [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 - judicial review of certificate of assessor in motor vehicle case - error in allowing head of damage involving less than 1% of award - discretionary refusal of relief - adequacy of reasons for rejection of applicant's medical evidence APPEAL - civil - application for leave to appeal - whether assessor gave adequate reasons for rejecting medical evidence - whether judgment below arguably erroneous - "no evidence" ground - whether constituting jurisdictional error - whether discretionary refusal of relief arguably erroneous PROCEDURE - civil - proceedings - discretionary refusal of judicial review - quick, cheap and just resolution of the real issues between the parties - public interest to be taken into account - Civil Procedure Act 2005 (NSW), s 56
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56-60 Motor Accidents Compensation Act 1999 (NSW), ss 94, 128 Supreme Court Act 1970 (NSW). ss 69, 101
Cases Cited:	Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992
Category:	Principal judgment
Parties:	NRMA Insurance Ltd - Applicant Jennifer Anne Ainsworth - First Respondent Colin Stoten - Second Respondent Motor Accidents Authority of New South Wales - Third Respondent
Representation:	Counsel: Mr M A Robinson - Applicant Mr M J Perry - First Respondent Submitting appearances for Second and Third Respondents Solicitors: Moray & Agnew Lawyers - Applicant Fishburn Watson O'Brien - First Respondent I V Knight, Crown Solicitor - Second and Third Respondents
File Number(s):	CA 2011/8996
Decision under appeal	Citation: NRMA Insurance Limited v Ainsworth [2011] NSWSC 344 Date of Decision: 2011-04-29 00:00:00 Before: Rothman J File Number(s): SC 2011/8996