Allianz Australia Insurance Ltd v Cervantes

(2012) 61 MVR 443; [2012] NSWCA 244

NSW Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Judicial review
3. › Failure to take into account relevant considerations
4. › Whether failure to refer to particular evidence constitutes failure to take into account relevant consideration
5. › Need to identify source of legal obligation to consider mandatory factors
6. › Whether decision-maker considered evidence
7. › Supreme Court Act 1970 (NSW), s 69
1. Administrative Law
2. › Judicial review
3. › Jurisdictional error
4. › Constructive failure to exercise jurisdiction
5. › Whether obligation to address every piece of evidence
6. › Whether failure to refer to particular passage in report indicates error
1. Administrative Law
2. › Judicial review
3. › Evidence before reviewing court
4. › Whether applicant entitled to rely on reasons of decision-maker
5. › Whether necessary to rely on submissions before decision-maker
6. › Scope of material properly before reviewing court
1. Damages
2. › Motor vehicle accident
3. › Future economic loss
4. › Use of buffer or lump sum
5. › Whether decision to award damages by way of buffer is evaluative judgment
6. › Whether buffer manifestly unreasonable given likely future loss
7. › Motor Accidents Compensation Act 1999 (NSW), ss 125, 126

Quick Take

Evidence relevant to a party's case before a decision-maker is not to be equated with a 'relevant consideration' for judicial review purposes; an applicant must identify a legal obligation to take into account a specific consideration. The award of damages by way of a lump sum buffer is an evaluative judgment; the relationship of the buffer to actual earnings and likely diminution in earning capacity can demonstrate the outcome is not manifestly unreasonable. The question whether an upper limit can be placed on the amount of a buffer for future economic loss was left open.