Macfarlan JA at [1]; Leeming JA at [23]; Tobias AJA at [36]
Decision:
(1) Appeal allowed.
(2) Declaration and orders made by Hall J on 3 May 2013 and any order for costs made by him subsequent to that date are set aside.
(3) Order that the Summons filed on 5 June 2012 be dismissed.
(4) Order the first respondent in this Court to pay the appellant's costs of the proceedings at first instance and on appeal.
(5) Direct the Registrar of the Court to refer this judgment to the Commissioner of Taxation for consideration.
[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 - Motor Accidents Compensation Act 1999 ss 94(5), 126 - claimant operated dry cleaning business - whether claims assessor erred in assessing damages for future economic loss by concluding in the absence of evidence that claimant would have been forced to close his business and seek salaried employment - held that assessor did not conclude this but simply that earnings of a salaried employee were an appropriate guide to minimum loss of business income - significance of claimant's failure to disclose full business earnings in taxation returns - discussion of assessor's obligation to give reasons
Thang Van Pham (Appellant) NRMA Insurance Ltd (First Respondent) Elyse White (Second Respondent) Motor Accidents Authority of New…
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
AGLC
Pham v NRMA Insurance Ltd [2014] NSWCA 22
Case
[2014] NSWCA 22
Decision Date
CaseChat Overview and Summary
The appeal concerned a decision of Hall J in the Supreme Court of New South Wales, which had reviewed a decision made by a claims assessor under the *Motor Accidents Compensation Act 1999* (NSW). The claimant, Mr. Pham, had suffered injuries in a motor accident and sought damages for future economic loss arising from his inability to continue operating his dry-cleaning business. NRMA Insurance Ltd was the insurer.
The primary legal issue before the Court of Appeal was whether the claims assessor had erred in law in assessing Mr. Pham's future economic loss. Specifically, the court considered whether the assessor had wrongly concluded that Mr. Pham would be forced to close his business and seek salaried employment, or whether the assessor had instead used the earnings of a salaried employee as a benchmark for the minimum loss of business income. The court also considered the significance of Mr. Pham's failure to disclose his full business earnings in his taxation returns and the assessor's obligation to provide reasons for their decision.
The Court of Appeal found that the claims assessor had not concluded that Mr. Pham would be forced to close his business. Instead, the assessor had used the earnings of a salaried employee as a guide to the minimum loss of business income, which was a permissible approach. The court noted the claimant's failure to disclose full business earnings in taxation returns and discussed the assessor's obligation to give reasons. Ultimately, the Court of Appeal allowed the appeal, setting aside the declaration and orders made by Hall J and dismissing the summons filed by Mr. Pham. The court ordered NRMA Insurance Ltd to pay Mr. Pham's costs of the proceedings at first instance and on appeal, and directed the Registrar to refer the judgment to the Commissioner of Taxation.
Orders
Orders of the court
(1) Appeal allowed.
(2) Declaration and orders made by Hall J on 3 May 2013 and any order for costs made by him subsequent to that date are set aside.
(3) Order that the Summons filed on 5 June 2012 be dismissed.
(4) Order the first respondent in this Court to pay the appellant's costs of the proceedings at first instance and on appeal.
(5) Direct the Registrar of the Court to refer this judgment to the Commissioner of Taxation for consideration.
[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.]