Rodger v De Gelder

The appeal concerned a judicial review of a medical assessment made under the *Motor Accidents Compensation Act 1999* (NSW). The appellant, Rodger, sought to set aside an order made by Davies J which had dismissed Rodger's summons seeking prerogative relief. The respondent, De Gelder, had sought to challenge the medical assessment.

The primary legal issue before the Court of Appeal was whether the decision-maker, in assessing the claimant's injuries, had asked herself the wrong question. Specifically, the court considered whether the decision-maker had erred by focusing on whether further information was *capable* of having a material effect on the previous assessment, rather than determining if it *did* have a material effect. A secondary issue was whether the respondent had waived his right to seek prerogative relief or was otherwise debarred from obtaining it on discretionary grounds.

The Court of Appeal found that the decision-maker had indeed asked herself the wrong question. The correct approach required the decision-maker to determine whether the further information provided was such that it *did* have a material effect on the previous assessment, not merely whether it was capable of doing so. The court held that the decision-maker's error in posing the incorrect question meant that the assessment was reviewable. Furthermore, the court determined that the respondent was not disentitled to seek prerogative relief.

Consequently, the Court of Appeal allowed the appeal, set aside the orders made by Davies J, and dismissed the summons filed by Mr De Gelder. Mr De Gelder was ordered to pay the appellant's costs of the proceedings at first instance and on appeal.