Rodger v De Gelder

Case [2015] NSWCA 211

Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Rodger v De Gelder [2015] NSWCA 211
Hearing dates:4 May 2015
Decision date: 23 July 2015
Before: Macfarlan JA at [1];
Gleeson JA at [2];
Leeming JA at [119]
Decision:

Appeal dismissed with costs.

Catchwords: ADMINISTRATIVE LAW – judicial review – medical review panel – assessment of degree of permanent impairment under the Motor Accidents Compensation Act 1999 (NSW) – failure to take into account relevant considerations – whether the failure to refer to particular evidence can constitute failure to take into account relevant considerations – failure to accord procedural fairness – whether failure to respond to a substantial argument based on a body of evidence – constructive failure to exercise jurisdiction – whether failure of review panel to apply itself to the real question to be decided – whether review panel misunderstood a significant body of evidence relevant to causation of injury – review panel certificate vitiated by jurisdictional error
Legislation Cited: Interpretation Act 1987 (NSW) ss 40, 41
Motor Accidents Compensation Act 1999 (NSW) ss 44, 57, 58, 60, 61, 62, 63, 65, 131, 132, 133
Supreme Court Act 1970 (NSW) s 69
Cases Cited: Abebe v Commonwealth of Australia [1999] HCA 14; 197 CLR 510
Ackling v QBE Insurance (Australia) Ltd [2009] NSWCA 881; 75 NSWLR 482
Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 443
Allianz Australia Insurance Limited v Francica [2012] NSWSC 1577; 63 MVR 1
Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372
Craig v The State of South Australia [1995] HCA 58; 184 CLR 163
D’Amore v Independent Commission Against Corruption [2013] NSWCA 187; 303 ALR 242
De Gelder v Rodger [2014] NSWSC 872
De Gelder v Rodger (No 3) [2014] NSWSC 1851
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088
Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416
Frost v Kourouche [2014] NSWCA 39; 86 NSWLR 214
Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531
Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340; 141 FCR 346
Mason v Demasi [2009] NSWCA 227
McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163; 71 NSWLR 609
Meeuwissen v Boden [2010] NSWCA 253; 78 NSWLR 143
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323
Motor Accidents Authority of NSW v Mills [2010] NSWCA 82; 78 NSWLR 125
Owen v Motor Accidents Authority of NSW [2012] NSWSC 650; 61 MVR 245
Nufarm Australia Ltd v Dow AgroSciences Australia Ltd (No 2) [2011] FCA 757; 282 ALR 24
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1

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Rodger v De Gelder [2015] NSWCA 211
Case
[2015] NSWCA 211
Decision Date

CaseChat Overview and Summary

The applicants, Rodger and De Gelder, sought judicial review of a decision made by a medical review panel constituted under the *Motor Accidents Compensation Act 1999* (NSW). The panel had assessed the degree of permanent impairment for the purposes of the Act. The applicants contended that the panel's decision was vitiated by jurisdictional error.

The primary legal issues before the court were whether the medical review panel had failed to take into account relevant considerations, specifically by not referring to particular evidence, and whether this failure amounted to a constructive failure to exercise jurisdiction. The court also considered whether the panel had failed to accord procedural fairness by not responding to a substantial argument based on a body of evidence, and whether the panel had misunderstood a significant body of evidence relevant to the causation of injury.

The court reasoned that a failure to refer to particular evidence could indeed constitute a failure to take into account relevant considerations, particularly where that evidence was substantial and relevant to the core question before the panel. The court found that the panel had failed to apply itself to the real question it was required to decide, which involved a proper assessment of causation. This failure, coupled with a misunderstanding of a significant body of evidence, amounted to jurisdictional error.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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