Accident Rehabilitation and Compensation Insurance Corporation v Miller

IN THE DISTRICT COURT Decision No. 1 58 /97 HELD AT WELLINGTON IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to. Section 91 of the Act BETWEEN ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION Appellant (Appeal No. DCA 22/96) AND ROY ROBERT MILLER Respondent HEARD on the 21st day of May 1997 APPEARANCES A D Barnett for appellant E P Peters for respondent DECISION OF JUDGE D A ONGLEY This appeal is brought by the Accident Rehabilitation and Insurance Compensation Corporation. It involves a problem of jurisdiction where the parties to the appeal have agreed to recommencement of the review process while this appeal was still pending. The second review purported to dispose of the questions involved in the appeal. The appeal was against the first review only. The question concerns the validity or otherwise of the second review. The respondent was in receipt of earnings related compensation. The Corporation issued a decision on 23 December 1992 reassessing the relevant earnings under which weekly compensation had always been payable. The reassessment decision was made under the Accident Rehabilitation and Compensation Insurance Act 1992 but the original assessment of earnings related compensation had been made under s 53 of the Accident Compensation Act 1982. - 2 - A review was conducted on 6 November 1995. In a decision delivered on 23 November 1995 the Review Officer ruled that the Corporation had no power to reconsider relevant earnings under s 53 of the 1982 Act. The basis for that decision would have been argued on this appeal, but both parties to the appeal accepted that the Review Officer's interpretation of the jurisdictional provisions of the 1992 Act must be regarded as incorrect. Both parties accept the correctness of the decision of Judge Middleton in McGhie 68/96, that s 138 of the 1992 Act confers on the Corporation the authority to review the basis of earnings related compensation, and that necessarily includes a review of the calculation of earnings under ss 52 and 53 of the 1982 Act. The complication is that, after the present appeal had been lodged but before it was heard, an agreement was reached between a branch of the Corporation and the solicitors for the respondent that the Review Officer's decision of 23 November 1995 was incorrect and that a review should proceed on the basis that the Corporation had jurisdiction under s 138 of the 1992 Act. That review proceeded, and was completed, without any consultation with counsel representing the Corporation on this appeal. Mr Peters now asks to have this appeal allowed and to have the first review decision revoked. Mr Barnett resists that course, because it might result in uncertainty as to whether there has been a valid second review or not. The appellant conceded that the review officer was wrong in his finding that the Corporation had no jurisdiction under s 138 of the 1992 Act, and submitted that it then becomes necessary to allow this appeal and refer the matter back to a Review Officer for determination of the merits. Mr Barnett submitted that a review officer cannot accept jurisdiction, whether by consent or not, unless it is provided for under the Act. He referred to s 100(3) of the 1982 Act and s 67A of the 1992 Act which are both provisions giving the Corporation power to revise its own decision. There is no comparable power conferred on a Review Officer. Under the 1992 Act a review decision is binding on the parties, subject only to appeal to the District Court. The parties were accordingly bound by the Review Officer's decision that the Corporation had acted without jurisdiction, but they proceeded to institute another, unauthorised form of review, which assumed that there was jurisdiction. There was no statutory authority for revision by the Corporation of the first review decision, nor was there any statutory authority for commencement of a new review or for commencement of a rehearing of the original review. The rehearing provision is in Rule 16 of the Accident Rehabilitation and Compensation Insurance (Appeals) Regulations 1992 stating that, in the determination of any appeal, a Court may remit to the person who heard the review, for further consideration and determination by that person, the whole or any part of the matter to which the appeal relates. Mr Barnett therefore submitted that neither the parties, nor another Review Officer, had the power to circumvent the earlier binding decision by the expedient of ignoring it. He submitted that it would follow that the second review, which was determined by a decision issued on 28 February 1997, was a nullity. The reply of the respondent is that this Court does not have the power to declare anything about the validity of the second review decision. Apparently, the respondent - 3. is satisfied with it and Mr Peters submits that if the Corporation is not satisfied with it, it is open to the Corporation to seek a judicial review. Whether or not the Corporation wishes to take that course, this Court must allow the present appeal unless it disagrees with the point of interpretation decided by Judge Middleton in McGhie. Neither counsel urges that course and both agree that the appeal must be allowed. The only question is whether this Court should refer the substantive matter for reconsideration by the review officer under Regulation 16. The respondent submits that it should not, and indeed that it cannot because there can be no re- litigation of the very issues that were decided in the second review decision on 28 February 1997. After the hearing of this appeal the parties filed further written submissions which did not substantially depart from the oral submissions on the hearing of this appeal. The thrust of the appellant's submission is that there was no statutory or other authority for the second review to be held. The respondent's submission is that the second review decision must stand unless it is declared invalid and of no effect by the High Court acting within its review powers under the Judicature Amendment Act 1972. After considering the matter carefully, I think that this appeal can be disposed of without referring the matter back to the Review Officer for further determination. The position appears to me to be as follows: 1. It has long been accepted that Courts have inherent power to regulate their own processes. The powers possessed by other Tribunals may well be limited by reasons of policy, but there must necessarily be implied in the jurisdiction of any Tribunal the power to regulate its own processes to some extent. It does not offend principle that a review officer acting within jurisdiction conferred by the Accident Rehabilitation and Compensation Insurance Act 1992 should be entitled to recall a decision and correct a manifest error if requested to do so by all persons having a direct interest in the subject matter. It is arguable that such a course could have been taken in respect of the first review decision. In fact it was not. 2. It should be open for a review officer, with the fully informed consent or request of both parties, to conduct a rehearing of an issue in cases where that is necessary. Frequently, review officers adjourn hearings, call for further information or argument, issue interim decisions, or otherwise regulate the process of review in the interests of justice. The situation is rather different once a final decision has been delivered, but if it is accepted that a decision can be recalled for correction or rehearing because of error and at the fully informed request of both parties, then there is no reason why a review officer should not proceed to conduct a rehearing if that is also done by consent. Again, that was not done in the present case 3. It follows, that the second review hearing in this case could have been brought about with all necessary consents. The exact process might have followed more than one possible path, but it is clear enough that both parties agreed that the first review decision was wrong and that the whole matter should be reheard. Although different staff members of the Corporation were involved, there is no argument here that any member of the Corporation acted without authority and it can be assumed for the - 4. purposes of argument that the Corporation acted within its powers in consenting to the second review. 4. I conclude that the failure to dispose of the existing review decision before commencing a new review was an error of procedure rather than an error of jurisdiction. The fact that both parties fully and freely consented, which is not an issue, was sufficient to overcome the procedural defects and the second review was a valid rehearing 5. It follows from that, that when the respondent, having clearly represented that it accepted the first review decision was wrong, and the Corporation having acted on that representation by re-litigating the question in a rehearing before another review officer, the respondent was estopped from taking a different position on this appeal. Therefore, it was inevitable that the appeal had to be allowed and the first review decision had to be revoked. The fact that this appeal remained on foot did not in fact raise the possibility of conflicting decisions. If the matter had been dealt with properly, this appeal would have been allowed by consent and a rehearing ordered under Regulation 16 by consent before the rehearing actually took place. I regard those matters as procedural only and I find that they were overcome by consent. For those reasons I reach the conclusion that there is no reason to refer the question on appeal for a rehearing pursuant to Regulation 16. The appeal is allowed and the decision of the review officer dated 23 November 1995 is revoked. DATED at WELLINGTON this 5M day of August 1997 D A Ongley District Court Judge