Kaulima v Accident Compensation Corporation

IN THE DISTRICT COURT AT AUCKLAND [2012] NZACC 192 ACR 229/11 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPEAL UNDER SECTION 162 OF THE ACT BETWEEN ANDREW ROGER KAULIMA Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent (Application for leave to appeal to the High Court on a point of law considered on the papers) Judgment: 13 June 2012 INTERIM JUDGMENT OF JUDGE RODERICK JOYCE QC CONTAINING DIRECTIONS] ANDREW ROGER KAULIMA V ACCIDENT COMPENSATION CORPORATION DC AK [2012] NZACC ACR 229/11 [13 June 2012] Delay [1] On 30 March 2012 I delivered a judgment on the application of Mr Kaulima in respect of ACR 230/11 for leave to appeal to the High Court on a point of law. [2] Regrettably his other then extant (and like) application in respect of ACR 229/11 was inadvertently misfiled, a state of affairs which has just now come to light and explains the delay in the issue of this judgment on that application. Application in respect of ACR 229/11 [3] This was an application under s 162 for leave to appeal the 4 October 2011 judgment of Judge Beattie holding that the reviewer had been correct in deciding that there was no jurisdiction to review the Corporation's March 2009 decision concerning Mr Kaulima's weekly compensation entitlement as no valid review application had been lodged in respect of that. [4] In response to that decision, Mr Kaulima communicated to the registry on 25 October 2011 his request to appeal same "on facts of law". Sensibly the registry took that intimation as an application under s 162. [5] Subsequently Mr Kaulima filed a 24 page submission in support of his application. This had been received on 28 November 2011, [6] The Corporation responded with its submissions on 4 January 2012 and Mr Kaulima had replied to those in a final submission received by the registry on 3 February 2012. (I note that both in the case of these and his original submissions there were also some attachments.) Review Decision [7] The reviewer had declined Mr Kaulima's 28 September 2010 application to review the Corporation's decision of 25 (sic) March 2009 as invalid on account it falling outside the 3 month statutory time limit for such an application. Judge Beattie's Judgment [8] The judgment commenced with a recitation of the somewhat convoluted background facts. [9] After covering the ground in that respect the judge observed that determination of the appeal before him required a focus on the review decision from which the appeal was brought. [10] Although I do not count it necessary to rehearse the entirety of the judge's recitation of the background facts and circumstances, it is helpful - in order to give due context to this application - to note the following: Following a review decision of 17 February 2009 to the effect that the Corporation had not correctly calculated Mr Kaulima's weekly compensation entitlements, its decision on that account was quashed and it was directed to recalculate those entitlements. On 24 March 2009 the Corporation wrote what was its decision letter to Mr Kaulima. This included a calculation of his entitlements. The following day (25 March 2009) it followed up with a document explaining how the calculation was "assessed". There was then correspondence between Mr Kaulima and the Corporation in the course of which further details and explanations were provided to him, but he did not seek a review of the 24 March 2009 decision within the statutory three month period. What he subsequently did was to seek to review a later letter from the Corporation of 21 April 2009 one, as the Judge described it, "whereby it gave a further explanation as to how it came to the assessment of weekly compensation that it had done". That application for review (and here I put aside any question of whether it actually related to a decision rather than what comprised consequential correspondence) was declined as being out of time. Mr Kaulima also sought to review another letter from the Corporation of 1 September 2009 - one of those discussing the recalculation - but in a review decision of 14 September 2010 the reviewer determined that the letter was not a decision and dismissed the application. Mr Kaulima then lodged a review application, specifically identified as relating to the letter of 24 March 2009. (At page 5 of her subsequent 24 March 2011 review determination the reviewer described this letter as "the primary decision letter of 24 March 2009" and "the only letter Mr Kaulima has applied for in this review, independent of all other matters already addressed or pending". However, subsequently, at page 9, she called the Corporation's letter of 25 March 2009 "its primary decision letter" and at page 10 she said "in the circumstances, Mr Kaulima is seeking a review of ACC's decision of 25 March 2009." This exemplifies the confusion inadvertently compounded by the Corporation in writing two letters on the same determination topic one day after the other. [11] Speaking of confusion, I was reminded when reading the determination of the reviewer, and the judgment of Judge Beattie, of what the Chief Justice said in the recent case of Allenbyy Middlemore Hospital and Accident Compensation Corporation [2012] NZSC 33. [12] Speaking of the current Act she said at [7] that: this is not) easy legislation to follow. It contains much cross-referencing, repetition, and circularity in expression. [13] Although Her Honour was speaking in the context of matters quite removed from the present, I respectfully suggest that what she said has - in greater or lesser degree because it depends on the circumstances - application right across the legislation. And it is through the thicket of this legislation that lay litigants (who are numerous at all levels) must make their way - sometimes perhaps led by nothing better than instinct - towards a possible remedy. Appeal Hearing [14] Before Judge Beattie, Mr Kaulima had rehearsed what he had conveyed to the reviewer, namely that in fact and initially he had only received one of the two letters sent to him in March 2009 being that dated 25 March 2009 which actually appears to have been an explanatory, rather than the determination of entitlements, letter. [15] The Corporation's response on appeal (as at review) had been that there was no power to extend the time for lodging an application for review unless, as the judge put it, "a decision determining extenuating circumstances were found to exist for the late lodging of that application". [16] The Corporation's fundamental submission was that the Court had no jurisdiction to consider the substantive issue determined by the 24 March 2009 primary decision as, again as the judge put it, "there had been no review of that decision as a consequence of the (appellant) not being granted an extension of time". The Judge's Decision [17] In the course of explaining his reasons for the outcome of the appeal the judge said this: See s 135(3). [10] The appellant has not, as of the present time, received a decision, either at first instance from the respondent, or a reviewer at review, granting an extension of time for the lodging of an application for review from that primary decision, on the grounds that extenuating circumstances have been found to exist for the late filing of that application. [11] It is the case that the respondent made a decision determining that it was not satisfied that such grounds existed and it therefore issued a decision refusing to extend the time. That was its decision of 23 November 2010. [12] The evidence is quite clear that the appellant has not lodged an application for review of that decision, and therefore I find it to be the case that the respondent's primary decision of 25 (sic) March 2009 is still in effect and has not been the subject of any review consideration. [13] In terms of this present appeal, I concur with the reviewer's decision that there is no jurisdiction to consider the correctness or otherwise of that primary decision as the statutory procedure for review has not been complied with and therefore there is no basis for consideration of the substantive issue, and quite correctly, I find, the reviewer declined jurisdiction. [14] In the appeal to this court, I find that this court's jurisdiction is limited to a determination of whether the review decision is correct, and I find that is clearly the case as there is no right as yet for a reviewer or the court, on appeal, to consider the substantive question and that circumstance will not arise until the appellant obtains an order extending the time for the lodging of his application for a review of that decision. That situation now would entail the appellant seeking, as a preliminary matter, an order determining that any late application for review of the respondent's decision of 23 November 2010 should be granted. [15] If such an application were to be granted, then the matter would then reach the stage of a reviewer considering whether the respondent's decision of 23 November 2010, was correct or whether indeed extenuating circumstances existed. It would only be if such a review decision were to be made in the appellant's favour, would there be able to be a review of the respondent's primary decision of 24 March 2009. It would only then be the situation that this court would have jurisdiction to consider that substantive issue, should that final review decision be not in the appellant's favour and an appeal be lodged wherefrom. [16] That state of affairs cannot arise until these significant procedural constraints have been overcome by decisions favourable to the appellant which would bring the substantive decision of 25 (sic) March 2009 to the stage where firstly a reviewer and then, if necessary, this court on appeal could consider the substantive issue. [18] As I remarked earlier, the fact that the Corporation sent out successive - one day after the other on the same determination topic letters has, very understandably, led to some confusion including as to pertinent dates. [19] I now set out the entirety of each of the two letters: Claim Number J1712657482 24 March 20 Mr Andrew Roger Kaulima 128 Solar Road Glen Eden West, Waitakere Dear Mr Kaulima ACC has completed a calculation of your entitlement to weekly compensation. A form detailing your entitlement and other information relevant to the payment of weekly compensation is attached ACC will send you a pay slip if your payment changes, showing the date of payment, the gross amount paid, the amount of tax deducted, and the net amount you receive. If you require further explanation of any of the information contained in the attached form, please contact me on 0800 101-996 Yours sincerely Lucia Jacobs [20] And the next letter; Claim Number J1712657482 25 March 2009 Mr Andrew Roger Kaulima 128 Solar Road Glen Eden West, Waitakere New Zealand Dear Andrew Kaulima Earnings Calculation - Review Decision ACC has completed a calculation of your entitlement to weekly compensation, as directed by review decision dated 5/2/09. This assessment has been forwarded under separate cover. I enclose a copy of the memorandum to the Technical Claims Manager by Customer Service Technical Support on how the calculation was assessed If you wish to discuss this matter, please contact me on 09 915 8248. Yours sincerely Lucia Jacobs Case Manager [21] It will be noted that the last paragraph of the letter of 24 March 2009 invites an approach to the Corporation if further explanation of any of the information contained in the "attached form" is required. [22] It appears to be the case that that form comprised what is the next item in the bundle, a multi-paged document headed up "Assessment of Earnings for Weekly Compensation AEWC" which then self-explains that : This form has been used to calculate weekly compensation for loss of earnings as defined in the Injury Prevention Rehabilitation and Compensation Act 2001. [23] On the first page of this document and under the heading "Review Information" this appears; You have the right to ask for this decision to be looked at again. The fact sheet called Resolving Issues tells you how to do this, Normally you need to reply for a review of the decision within three months. If you have more information to give ACC, would like to ask any questions about this decision, or would like a copy of Resolving Issues, please call me on 0800 101-996. (Emphasis added) [24] The next page, which in some respects is rather similar to the first, rehearses at its foot what I have just set out in [23]. [25] Section 64 of the Act (dealing with the obligation of the Corporation to give notice of its decisions) says this: (4) Every notice given under this section must - (a) Be written; (b) Contain the reasons for the decision; (c) Give the claimant or other person information about his or her rights to apply for a review, including details of the time available to do so, and an explanation of when applications can be made outside that time. [26] It will be noticed that, in itself, the decision letter of 24 March 2009 said nothing at all on the (4)(b) topic and that its "attached form" was less than comprehensive about (4)(c). By implication, that attachment indicates that the "Resolving Issues" fact sheet (which presumably told the whole story) would not of itself have accompanied the letter for, if that had been the process, there would have been no need for advice about how to get a copy of that sheet, [27] In this state of affairs, my provisional view is that what was conveyed to Mr Kaulima in or with the letter of 24 March 2009 (and I recall that Mr Kaulima contended that he did not receive that letter but only the one sent the following day)? quite fails to meet what's 64 says must be given to the claimant, [28] In this state of affairs I do not count it just simply to deal with this application for leave on what I have before me. For it may be that the basic foundation of the Corporation's current position is at risk - if not quite undermined - by the information gap to which I have drawn attention and which, so far as I can see, has not previously been debated. Interim Directions [29] In light of my discussion just above, I make these directions; (a) That within 10 working days after counsel's receipt of this interim judgment the Corporation file and serve submissions pertinent to: (i) The validity or otherwise (in light of the s 64 requirements) of the 24 March notice of decision; (ii) The pertinence (if any) of the 25 March 2009 letter; and (ifi) If the Corporation should accept there is, or the Court should identify, an apparent invalidity, the proper course this proceeding should then take; and that 2 The 25 March 2009 letter might count as the reasons that should have been given the day before. (b) Mr Kaulima have 10 working days from the date he receives the Corporation's submissions to respond. [30] In so directing, I am entirely conscious that what is before me is an application for leave to appeal to the High Court rather than an application for (if such might be made available) a rehearing of the appeal. [31] But I am also and equally conscious that the Court (within the proper confines of the due construction of the legislation) must itself support the purpose of the Act as set out at s 3. [32] That section plainly has a positive part to play in driving proper endeavours to ensure that the adjudication system is operated in a fashion not overly complicating matters and least likely to confound litigants. [33] Thus, if there is a flaw in the decision, that should be resolved as simply and expeditiously as is practicable. Roderick Joyce District Court Judge Confined to the discrete issue now identified.