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The "face of the record" March 9, 2016

Allianz Australia Insurance Limited v Zein [2016] NSWSC 196


This Court’s jurisdiction
15  This Court has jurisdiction under s 69(3) of the Supreme Court Act to grant relief in respect of an error of law on the face of the record. The record includes the claim form, the certificate and, by reason of s 69(4), the assessor’s reasons. It does not include the evidence considered by the assessor: Craig v South Australia (1995) 184 CLR 163 at 182-183.
16 This Court’s jurisdiction under s 69 of the Supreme Court Act and its inherent jurisdiction to correct jurisdictional error are to be contrasted with its appellate jurisdiction under s 75A of the Supreme Court Act. An appeal under s 75A is a rehearing in which the Court of Appeal is to form its own assessment, subject to the advantage enjoyed by the tribunal of fact in seeing and hearing the witnesses. When damages arising from a motor vehicle accident are assessed by a judge, the merits of the assessment can be reviewed by the Court of Appeal on an appeal (either from the District Court or the Supreme Court) pursuant to s 75A. However, when, as in the present case, the assessment of damages is conducted by an assessor appointed under the Act, this Court has no jurisdiction to review the merits of the award.
17 As Brennan J said in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36:

“The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and. . . for the repository alone.

The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise.  In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.”

18     In the present case, the repository of the relevant power to make the assessment is the assessor, not this Court. Accordingly, subject to the confines of administrative unreasonableness, no judgment can be made about the merits, correctness or appropriateness of the quantum of the assessment. The sole question for determination is its legality.

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