James v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 31 /98 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 ALICE JAMES DCA 206/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 16th day of December 1997 APPEARANCES: Mr R Douglas advocate for appellant Mr A D Barnett for respondent DECISION OF JUDGE M J BEATTIE 2 The substantive issue raised in this appeal is whether the appellant Alice James was a dependent of the deceased Gregory John Clark, who was murdered in Auckland on 21 November 1988. However, before that question can be considered I find that it is necessary to determine whether this Court has jurisdiction or whether it is a matter which is required to be heard by the Accident Compensation Appeal Authority in accordance with the provisions of section 152 of the 1992 Act. At the hearing of the appeal I indicated to the parties that I had formed a preliminary review that the substantive issue was one which required to be considered and determined under the provisions of the 1982 Act and that therefore the provisions of Part ix of that Act applied in relation to any appeal. Counsel for the respondent at that time submitted that the 1992 Act applied. Mr Douglas, who is the stepfather of the appellant and who was representing her, not unnaturally could add little to the argument on jurisdictional question. After hearing the parties I adjourned the appeal to receive further submissions from counsel for the respondent on the question of jurisdiction and these are now to hand. Counsel for the respondent now supports the contention that the issue of dependency must be considered under 1982 Act and that therefore the appeal from any review decision relating to that issue must be considered by the Accident Compensation Appeal Authority. 3 Because this particular question does not appear to have been considered before I propose to give brief reasons why I find that this Court, under the 1992 Act, has no jurisdiction to determine the particular substantive issue raised in this appeal. It is necessary to state some brief background facts. On 21 November 1988 Gregory John Clark (the deceased) was murdered in Auckland. His murderer was found not guilty on the grounds of insanity. At the time of his death the deceased was said to have no dependants but his father made a claim for cover under the 1982 Act in respect of funeral and associated expenses. Cover was duly granted and payment made. In January 1996 Mr Raymond Douglas, resident in Perth, Australia, wrote to the Corporation on behalf of his step daughter Alice James, the appellant, seeking some support for her daughter Michelle born on 6 April 1982 the father of whom was the deceased. Cover in respect of Michelle's dependency on the deceased was accepted by the Corporation and payment of a dependency allowance was duly made. An examination of the file in relation to that claim indicates that it was considered pursuant to the provisions of the 1982 Act. In December 1996 Mr Douglas again wrote to the Corporation requesting payment of an allowance for the appellant herself as a dependent of the deceased. The appellant and the deceased had never been married and were not living together immediately before the deceased's death and in fact had not lived together for some five years prior to his death. Nevertheless, the appellant was contending that because she was the mother of his child she 4 was entitled to a shared cost for the child's upbringing, something she said the deceased would have been willing to undertake had he been alive. That claim was rejected and the matter went to review and the review decision was delivered on 10 June 1997 again rejecting the claim. The Review Officer considered the question of dependency under section 65 of the 1982 Act and determined on the facts as he found them that the appellant had not established an evidential basis for a claim for dependency. It is from that decision that this appeal was brought. The Relevant Statutory Provisions to the question of jurisdiction are sections 135 and 145 of the 1992 Act, being two of its transitional provisions. 135. Relationship of this Act and former Acts - (1) Any person who has had a claim accepted for personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982 suffered before the Ist day of July 1992 shall be deemed to have suffered personal injury that is covered by this Act. (2) Nothing in subsection (1) of this section shall apply if it is subsequently determined that the person had not suffered personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982. (3) Any person who has suffered personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982 before the Ist day of July 1992 and who has lodged a claim with the Corporation in respect of that personal injury by accident 5 before the Ist day of October 1992 , shall have the acceptability of the claim determined under the Accident Compensation Act 1982 as if it had not been repealed. (4) Where subsection (3) of this section applies, the continued entitlement of the person to rehabilitation, compensation, grants, and allowance shall be determined under those Acts, as appropriate, but subject to this Part of this Act. (5) Any person who has suffered personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982 that is covered by either of those Acts. and who has not lodged a claim with the Corporation in respect of that personal injury by accident before the 1st day of October 1992, shall have cover under this Act only if that personal injury by accident is also personal injury that [would be covered by this Act had it occurred on or after the Ist day of July 1992]. 145. Compensation payable to surviving spouses and dependants - (1) Where any person was, immediately before the Ist day of July 1992, in receipt of, or would have been entitled to be in receipt of, compensation calculated under section 123 of the Accident Compensation Act 1972 or sections 65 and 88 of the Accident Compensation Act 1982, that compensation shall continue to be payable or be paid as if it had been calculated under this Act. In this case the deceased had suffered personal injury by accident before 1 July 1992 and for the purposes of section 135(3) a claim in respect of that personal injury had been lodged before 1 October 1992. Thus it may be said that the estate had cover under the 1982 Act. 6 It is this fact of the estate having cover that enables the provisions of section 145 (1) to permit the question of entitlement to compensation under section 65 of the 1982 Act to be considered. It follows from the fact that section 65 of the 1982 Act is the provision under which the appellant's entitlement to compensation must be considered, that part ix of the 1982 Act must be applied in relation to any appeal from any decision there from. As previously noted the Review Officer in his decision has considered the matter on its merits looking at it from the perspective of whether the appellant did or did not come within the criteria of dependency as stated in section 65 of the 1982 Act and not its successor section 60 of the 1992 Act. Accordingly then, I direct that this appeal be referred to the Accident Compensation Appeal Authority as is required by section 152 of the 1992 Act. As has been requested by counsel for the respondent, the question of cost is reserved for determination by the Appeal Authority at the appropriate time. DATED at WELLINGTON on this 18 day of February 1998 Deaths M J Beattie District Court Judge James.doc(gm)