James v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 204 /98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN ADRIENNE ROBYN JAMES of Hamilton Appellant (Appeal No. DCA 132/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON ON THE PAPERS The issue in this appeal is whether the respondent was correct to cease the payment of weekly compensation on 20 August 1995, being two years after the date upon which the appellant had entered into a relationship in the nature of marriage. The facts which give rise to the appeal are that the appellant's first husband (Mr Coker) was killed in a motor vehicle accident in 1988. As a result the appellant and her children were paid certain benefits and compensation. On 7 September 1993 the appellant advised the respondent that on 20 August 1993 she had entered into a de facto relationship. On 9 January 1997 the appellant notified the respondent that she had remarried on 26 December 1996 and requested that her weekly compensation be stopped. When the respondent then reviewed the appellant's file it concluded that the payments to the appellant should have ceased two years after she entered into the de facto relationship which would have meant cessation from 20 August 1995. The result was that the respondent notified the appellant on 28 August 1997 that she had been overpaid the net amount of $13,550.70. The appellant applied for a review of that decision. It appears that the respondent then reviewed its file and notified the appellant on 9 December 1997 that she was entitled to receive weekly compensation for two years from the date of her remarriage which would have taken it up until 26 December 2 1995. A subsequent review on 20 January 1998 showed that the respondent's original decision was correct and by letter dated 21 January 1998 the respondent confirmed its new decision. The appellant applied for a review of that decision. In his decision the Review Officer recorded that as a matter of policy the respondent interpreted "remarriage" as being both a legal union and a de facto relationship. He concluded that the decision of the respondent was therefore correct and declined the application for review. It is against that decision which the appellant now appeals. The appellant's advocate submits that in September 1993 the appellant visited the respondent's office and advised that she was then living in a de facto relationship which is confirmed by a file memorandum signed by the appellant. She said that she was advised by her then Case Manager that she was entitled to continue to receive weekly compensation. After the appellant remarried in December 1996 she advised the respondent accordingly. The appellant's advocate submits that by virtue of the transitional provisions of the 1992 Act the appellant was entitled to continue to receive weekly compensation for a further two years from the date of her marriage which would be until 26 December 1998. The advocate submits that under the Accident Compensation Act 1982, no remarriage grant was payable to the appellant upon entering into a de facto relationship and such a grant is applicable only to a legal marriage upon a production of a marriage certificate. She submits that there is no clear definition of "remarriage" in the 1992 Act although the definition of a "spouse" includes de facto partners. The appellant's advocate submits that the appellant has been careful to keep the respondent informed of her situation and that she should be entitled under the transitional provisions in the Act to receive weekly compensation for two years following her remarriage. In submissions on behalf of the respondent, counsel notes that while remarriage is not defined under the Accident Rehabilitation and Compensation Insurance Act 1992, an exactly similar position was considered by this Court in Lawrence (121/97). The issue is covered by section 145(3) of the Act which provides that weekly compensation payable to surviving spouses and dependants shall be cancelled by reason of the remarriage of the spouse two years after the date of that remarriage. I had occasion to consider exactly the same issues as are now raised by the appellant in my decision in Lawrence in which I held that a relationship in the nature of marriage constitutes a "remarriage" within the meaning of section 145(3). I therefore uphold and adopt the reasoning which I applied in that appeal and this appeal must be dismissed. DATED at WELLINGTON this /5th day of September 1998 A W Middleton District Court Judge dc132-98.doc (nr)