NRMA Insurance Limited v Ainsworth

Judgment 1BASTEN 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. 2Proceedings were commenced in the Common Law Division on 11 January 2011 seeking judicial review of the certificate and award of the claims assessor. Those proceedings came before Justice Rothman who delivered judgment in this matter on 29 April 2011: NRMA Insurance Limited v Ainsworth [2011] NSWSC 344. His Honour dismissed the proceedings with costs.

Grounds of application 3The insurer now seeks a grant of leave to appeal against his Honour's judgment and orders on two primary bases. The first concerns the manner in which the claims assessor dealt with a conflict in the evidence between two doctors called on behalf of the insurer and the doctor for the claimant. He accepted the opinions of the claimant's doctor, Dr Lethlean in preference to those of Associate Professor Mattick and Professor Lance who were called on behalf of the insurer. 4The challenge raised below was to the reasons given in the certificate which accompanied the award. In the judgment of the primary judge there was a lengthy discussion of the basis upon which the assessor had expressed preference for Dr Lethlean. His Honour noted that the assessor did not consider that the reports relied upon by the insurer were the subject of the same degree of careful history taking as the report prepared by Dr Lethlean. He noted that the assessor had explained that in his reasons for preferring the one over the others. 5His Honour's assessment of the reasoning process and the standards which apply in respect of such matters was set out in some detail. He found no inadequacy in the reasons giving rise to an error of law on the face of the record to warrant intervention pursuant to s 69 of the Supreme Court Act 1970 (NSW). 6The second issue concerned an award of $2,363 for future care which the assessor had found the claimant would likely require because of the likelihood of her suffering a degree of disability from osteoarthritis in the future. There were a number of challenges to the way in which the assessor dealt with that question. It was said that the assessor had failed to address the matters required by s 128 of the Motor Accident Compensation Act . That was a complaint which his Honour rejected at [84] and [89]. It was also submitted that the assessor had failed to provide adequate reasons for the conclusions he reached: that complaint too was rejected, at [90]. 7The challenge which his Honour accepted had been made good was that the assessor had made his findings in relation to that amount without probative evidence or other material to support the findings. Those conclusions he set out at [87] and [92]. 8His Honour did not, however, grant relief on the basis of that error. He took two steps in considering that aspect of the matter. The first step was to identify the error as an error of law on the face of the record, but not as constituting jurisdictional error. The distinction was relied upon because his Honour considered that there might be a broader area of operation for the discretion to refuse relief in the case of an error of law which did not constitute jurisdictional error. 9Having reached that conclusion the second step was to consider the basis upon which he might exercise his discretion to decline relief: at [107]. He did decline relief, on three bases. First, he noted that the error related to an amount of only $2,363 in a total award of over $600,000. Secondly, he relied on the fact that the costs awarded to the one party were in excess of $40,000 and that a significant amount would be required if the matter were relitigated, despite the small amount of the damages in issue. Thirdly, he thought that there had been a degree of acquiescence on the part of the insurer as to the steps taken in relation to this minor matter, the assessor having expressed concern that he had little material before him upon which he could rely.

Resolution of challenges 10With respect to the first issue (the adequacy of the assessor's reasons in respect of the medical evidence), I am not satisfied that there is any mistake or error of principle in the way that his Honour dealt with the question. The reasons which the assessor provided need not be set out; they are fully discussed in the judgment of the primary judge. But at paragraphs 12 and 13 in particular the assessor sets out with some clarity the basis upon which he preferred one set of opinions over the other. I do not see any inadequacy in the reasons given for the purposes for which they were provided, under the Motor Accidents Compensation Act . I agree with the reasons which his Honour gave in coming to his conclusion to reject that ground. 11With respect to the second issue, the question involves the exercise of discretion in refusing relief by way of certiorari. The applicant says, first, that there is no gradation in relation to the circumstances in which the discretion may be exercised. In a sense that operates against the applicant's interest because there may have been a doubt as to whether it was correct to deny jurisdictional error in respect of a ground based on absence of evidence. 12However, that in itself raises an issue which has not been fully addressed in the argument in this Court. For example, in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992, Gummow and Hayne JJ referred to the 'no evidence ground' relied upon in respect of a finding by the Refugee Review Tribunal that a claimant was suffering from posttraumatic stress disorder, stating at [39]: "To return to the first ground identified in the Federal Court, the 'no evidence' ground, nothing in the Act made the question of whether or not the respondent suffered from PTSD a precondition to the exercise of jurisdiction. No question of a 'no evidence' ground of jurisdictional error arises." 13The precise scope of that proposition and how it would apply in the present case is a matter which need not be determined in this leave application. There is, however, an indication there that there is a distinction between some cases of "no evidence" which constitute jurisdictional error and some which do not. 14The second basis on which the applicant seeks to challenge the reasoning of his Honour at [107], was the understanding of the amount in issue, which, the applicant said, was not small. The amount which was the subject of the error was indeed small, but the effect of the error would be to overturn the whole of the award, which would therefore require reassessment. It is not necessary to consider whether, for the purposes of s 94 of the Motor Accidents Compensation Act , that is the inevitable consequence of an error in any part of the award. If it is, however, it provides on one view an even stronger argument for declining relief: there is no obvious merit in overturning an award of which 99.6% is beyond review. 15It was also said that his Honour was in error in taking into account the provisions of the Civil Procedure Act 2005 (NSW) requiring that the Court ensure the quick, cheap and just resolution of the real issues between the parties: ss 56-60. It was put that such a proposition cannot override the public interest which arises in judicial review proceedings. I do not accept that the Act should be read down in that way. It is always relevant to ask whether there is a public interest to be taken into account in the proceedings before the Court, but having taken that factor into account, it is nevertheless correct to apply, as his Honour did, the injunction in s 56(1). 16It is also put by the applicant that no monetary amount is ever at stake in judicial review proceedings and hence the small amount said to be in issue with respect to future attendant care services is irrelevant. With respect, I do not accept that submission either. Section 101(2)(r) of the Supreme Court Act is far broader in the nature of the connection it looks to between the claim and the amount of $100,000 which provides the floor below which leave is sought. There are public law cases which involve in one way or another amounts of greatly varying significance. In the present case the amount in issue is, on the applicant's argument, an amount of over $600,000. Nevertheless it was accepted for present purposes that leave was required. 17The manner in which his Honour dealt with the question of his discretion was entirely within the proper realm of his power and I do not see any error of principle adversely affecting the outcome. In reaching that conclusion I rely upon the undertaking given by the respondent that if certiorari is not granted the amount in question will be repaid. 18For those reasons I would refuse leave to appeal with costs. 19ALLSOP P : I agree. I would only add one comment. In relation to the question of the relationship between the Civil Procedure Act and judicial review under the Supreme Court Act s 69, like Basten JA, I doubt the correctness of that submission. To the extent that there may be an arguable basis for it, these are not the proceedings to tax the first respondent with that matter of statutory construction. 20The orders of the Court are: (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.

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