Australia: To issue or not to issue? Circumstances when the Supreme Court will not grant relief in the form of certiorari

Last Updated: 3 May 2011
Article by Jennifer Casperson

Judgment date: 29 April 2011

NRMA Insurance Limited v Ainsworth [2011] NSWSC 344

Supreme Court of NSW1

In Brief

  • Certiorari will not be issued by the courts as a form of relief for an error of fact (that is not jurisdictional). It is not an error of law for an Assessor to arrive at a conclusion of which there is evidence simply because that conclusion is inconsistent with another conclusion that was available.
  • The Supreme Court has a discretion to issue certiorari where there is an error of law on the face of the record. The circumstances in which orders in the nature of certiorari are refused by the court on discretionary grounds are rare.


NRMA Insurance Limited (NRMA) sought orders in the nature of certiorari challenging the validity of an assessment of Mr Colin Stoten (the Assessor). The proceedings arose out of the Assessor's findings in relation to a motor vehicle accident in which the first defendant, Mrs Jennifer Ainsworth (Mrs Ainsworth) was injured.

On 20 September 2010 the Assessor issued a Certificate and Reasons for Decision assessing Mrs Ainsworth's damages in the sum of $632,313.21 reduced by an amount of $26,643.94 in accordance with s 130 of the Motor Accidents Compensation Act 1999 (the MAC Act).

NRMA brought proceedings in the Administrative Law Division of the Supreme Court of NSW before Justice Rothman, submitting that the assessment and Certificate of the Assessor were vitiated by error of law on the face of the record and/or jurisdictional error. NRMA sought an order for certiorari to quash the assessment and Certificate of the Assessor.

Supreme Court Judgment

First issue – competing expert evidence

The first issue considered by Justice Rothman was the Assessor's decision to prefer the medical report of Dr Lethlean over two reports relied upon by NRMA of Associate Professor Mattick and Professor Lance.

NRMA submitted that the Assessor fell into an error of law and jurisdictional error as he failed to provide reasons for his decision to accept the report of Dr Lethlean over its medical evidence, and in addition, the Assessor's conclusion was inconsistent with his duty to act fairly towards the parties and accord equity to both.

In arriving at his decision on this issue, Justice Rothman looked to the objects of the MAC Act and circumstances when orders in the nature of certiorari can be exercised by the courts. His Honour noted that the court has the jurisdiction to quash a determination if that determination has been made on the basis of an error of law on the face of the record. His Honour also noted that the objects of the MAC Act were to provide an informal, timely, fair and cost effective method of resolving motor vehicle accident claims.

Turning to the Assessor's Statement of Reasons, Justice Rothman concluded that the Assessor had provided reasons in reaching his decision to prefer the report of Dr Lethlean over that of Associate Professor Mattick and Professor Lance. Specifically, Dr Lethlean had been provided with updated Statements from Mrs Ainsworth and her husband as to her cognitive function, Statements which were not available at the time of Mrs Ainsworth's assessments with both Associate Professor Mattick and Professor Lance.

Justice Rothman noted that neither Dr Lethlean nor Mr and Mrs Ainsworth were cross-examined by NRMA on the updated Statements despite having the opportunity to do so.

Justice Rothman noted that the Assessor, at paragraphs 12 and 13 of his Reasons for Decision, gave an opinion as to why the report of Dr Lethlean should be accepted over that of Associate Professor Mattick and Professor Lance. His Honour noted that whilst NRMA may not agree with the decision of the Assessor, it cannot be submitted that no reasons for the Assessor's preference were given.

At paragraph 66 his Honour stated the following:

The decision of the Claims Assessor, if it be wrong, is an error of fact, not of law. The Claims Assessor has not denied to NRMA any opportunity to deal with the differences in the material and has not failed to comply with the provisions of the Act or the Guidelines. Further, there is no error of law disclosed in the decision to prefer the evidence of Dr Lethlean and deal with the claim on that basis, rather than the opinions of Professor Lance and Associate Professor Mattick. If there were a mistake or error, it was an error of fact and not of law. Certiorari, or orders in the nature thereof, will not issue for error of fact (that is not jurisdictional) and this ground of review fails.

Second issue – future care

Mrs Ainsworth's CARS Application made a claim for future gratuitous care, however no written submissions had been provided by her in support of the claim.

The Assessor made an assessment for future gratuitous care on the basis that at some stage in the future, Mrs Ainsworth would undergo right hip surgery. He allowed future gratuitous domestic assistance for a period of time prior to any operation and for a period of time following any operation. The sum awarded by the Assessor for future gratuitous domestic assistance was $2,363.

Whilst his Honour believed the logic in the Assessor's conclusions was compelling, he concluded that there was no evidence of when such an operation was to occur, nor was there any evidence of a period or periods during which the plaintiff would require gratuitous domestic assistance. Furthermore, there was no evidence of any rehabilitation period after such an operation were it to occur nor was there any evidence of the degree to which  any of the foregoing was likely and therefore the degree to which any such assessment would be discounted.

Despite this, Justice Rothman noted that the Assessor acted fairly towards both parties and had offered an adjournment to NRMA to meet any claim for future gratuitous domestic assistance.

Justice Rothman concluded that there was no evidence to support the Assessor's calculations for future gratuitous domestic assistance based on the above points. Justice Rothman, however, did believe that there was evidence upon which the Assessor could have formed the view that operations to Mrs Ainsworth's right hip were likely and osteoarthritis was inevitable.

In considering whether certiorari applied, Justice Rothman concluded that a finding based on no evidence as distinct from sufficiency or reliability of evidence is an error of law, however it is not a jurisdictional error, for which an order in the nature of certiorari would generally be issued.

His Honour noted, however, that there are many instances where the exercise of relief in the nature of certiorari is a discretionary one.

His Honour concluded, at paragraph 99, the following:

Where, as here, the error of law on the face of the record is an error of law in the reasons, and is not a jurisdictional error, there is some greater flexibility for the exercise of a discretion not to issue orders. However, that discretion, in my view, ought to be exercised in rare circumstances. Parties are entitled to have administrative decisions determined in accordance with the law.

His Honour ultimately exercised his discretion not to grant the relief of certiorari based on a number of factors such as the small sum awarded for future gratuitous assistance and the increase in legal costs should the matter be re-litigated. In addition, his Honour also noted that the error arose due to the acquiescence of the parties in a procedure which invited the Assessor to "do the best he could" on the material that was before him.


Where there has been an error of law on the face of the record, the Supreme Court will usually exercise its discretion to grant relief in the form of certiorari.

However, the refusal of the court to exercise its discretion to grant relief in the nature of certiorari depends on the individual circumstances of the case in conjunction with theoverriding principles of the MAC Act.

1 Rothman J

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