Tokona v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HAMILTON Decision No. 42/ 97 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN BARRY TOKONA of Mamaku Appellant (Appeal No. DCA 266/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 4th day of March 1997 APPEARANCES Q Mines for appellant T P Cleary for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant is entitled to a decision in his favour pursuant to section 90(9) of the Accident Rehabilitation and Compensation Insurance Act 1992. On 19 December 1995 the respondent notified the appellant's counsel that his claims for backdated weekly compensation were declined. By letter dated 27 December 2 1995 the appellant's counsel submitted an application for review of that decision and requested that the files "be sent to the review section as soon as possible so that the review section can arrange an early hearing date". While the application for review shows that the Rotorua office date stamped that the application for review was apparently received on 3 January 1995 (although it would appear that the correct date was 3 January 1996), the parties agreed that the three month period specified in section 90(9) expired on 28 March 1996. The record shows that after receipt of the application for review on 20 March 1996, the respondent wrote to the appellant's counsel advising that the review section would be communicating with him in order to set a date for the review hearing. A file note dated 22 March 1996 indicates that an officer from the review section telephoned the appellant's counsel's office stating that the respondent would like the review hearing to be held at Hamilton on 1 April 1996. As the appellant's counsel was not then available, the message to that effect was left at his office and it stated that the hearing could be set for 8.45 am on 1 April 1996. At the same time a fax message was sent to the appellant's counsel's office inquiring whether counsel would prefer the review hearing on 1 April 1996 at Hamilton or on 2 April 1996 at Rotorua and that if no answer was given by the following Monday the hearing would be set down for 2 April 1996 at Rotorua. Apparently the appellant's counsel then faxed the Review Clerk confirming receipt of the telephone message and expressing displeasure at the short notice despite many requests from him for an early hearing. The message then stated: "We have communicated with the offices of two specialist witnesses we had intended to call, to give evidence at the hearing, but we fear the short or very short notice you have given of hearing will disadvantage the applicant insofar as these witnesses are concerned. Indeed we very much doubt they could be available at such short notice." On 25 March 1996 the appellant's counsel wrote to the respondent's review section confirming receipt of the fax message and noting that arrangements were being made to see whether the witnesses would be available. The letter stated: "In the meantime, we suggest the Corporation issue a notice specifying time and place of hearing, as required by section 90(5)(b) of the Act." On the same day the review section notified counsel by fax that the review hearing was to be at 8.45 am on 1 April 1996 but that if that time was not suitable then any time after 1.30 pm that day would be available. By way of fax, the appellant's counsel notified the review section confirming that he would be present at 8.45 am on 1 April 1996 with submissions on the basis that counsel considered that the issue was out of time. On 31 March 1996, the appellant's counsel notified the Review Officer that the respondent was in breach of section 90 of the Act in that the review had not been commenced within three months after the lodging of the application. He submitted further that after an application for review had been lodged it was necessary for the respondent to give seven clear days notice of the time and place of 3 the hearing which in his submission had not been done. He submitted that in the circumstances, any further fixture would require the minimum of seven clear days notice and that any hearing as a result of that notice could be outside the three month period. The respondent then notified the appellant's counsel by letter dated 30 May 1996 that it declined to invoke section 90(9) to which decision the appellant applied for a review. At the review hearing Mr Mines made submissions similar to those which he had made to the first Review Officer but the Review Officer concluded that on the basis of the decision in Cockerey (128/95) there had been a sufficient agreement between parties by which it could be deemed that the review hearing had been commenced within the time limit. He declined the application. It is against that decision which the appellant now appeals. Mr Mines has submitted that in so far as this appeal is concerned the decision in Cockerey has no application because in that case counsel had agreed with the respondent prior to the expiration of the three month period to fix a date for hearing which was agreed to by both parties although it was outside the three month period. He submitted that on that basis Cockerey had no place in this appeal. He submitted further that there had been no agreement to shorten the requirement of section 90(5)(b) to provide the applicant for review with seven clear days notice in writing before the day appointed for the hearing. Mr Cleary submitted that on the basis of Cockerey the appeal hearing had been commenced within the three months because there had been discussion between the appellant's counsel and the Review Officer in which optional dates had been provided although they were outside the three month period. In addition other dates which may have suited the appellant in one of two cities were mentioned. He submitted that as the appellant's counsel had indicated the need to arrange for the witnesses to be available, it could be said that there was an implied agreement as to dates which can be construed as a commencement of the review hearing process. Mr Cleary submitted that if that argument is not accepted then the appellant's counsel had contributed to the delay and this nullified any benefit which might be conferred by section 90(9). He submitted that the respondent had complied with section 90(5)(a) by obtaining conditional agreement from the appellant's counsel as to the date, place and time of the hearing. He submitted that this was supported by the fact that the appellant's counsel in responding to the suggested date had indicated that he was communicating with the offices of two specialist witnesses but due to the short notice he doubted they could be available. Mr Cleary submitted that the inference from this communication is that if the witnesses were available the date and time would be suitable. He said that the next communication from counsel was the fax of 25 March 1996 insisting on a notice of time and place under section 90(5)(b). The date of this fax meant that there were only six clear days until 1 April 1996, the date which had been set for the review hearing so that it was too late for the respondent to comply with the section. 4 The two sections in issue are section 90(5) and 90(9) of the Act which state: "(5) Every such hearing shall be held at a time and place that are--- (a) Agreed to by the applicant, the Corporation, and the person hearing the review; or (b) Specified in a notice given by or on behalf of the person hearing the review not less than 7 clear days before the day appointed for the hearing- and where any party does not attend, without reasonable excuse, the matter may be determined in the absence of that party." "(9) Where the hearing of a review has not been commenced within 3 months after the lodging of the application for review, and the delay is not caused or contributed to by the applicant, the application shall be deemed to have been determined in favour of the applicant." I agree with Mr Mines' submission that the facts of this appeal are different from the situation which arose in Cockerey. The situation in Cockerey clearly indicated an agreement between the counsel and the Review Officer prior to the expiration of the three month period fixing a date which they agreed would be the date for the hearing of the review. In this case, in spite of the counsel's request on 27 December 1995 for an early review hearing, no steps were taken by the respondent until 20 March 1996. On 22 March 1996, a telephone message suggested the dates of 1 or 2 April 1996. I do not draw the inference from counsel's reply to that telephone message that he would agree to the date suggested if his witnesses were available. I do not consider that his message goes that far but merely indicates his concern about the number of days' notice given and raising the possibility that the witnesses would probably not be available in any case because of time constraints. Some three days later, counsel requested formal notice specifying time and place of hearing which is required of the respondent by section 90(5)(b) so I do not consider that that communication constituted an acceptance, either real or implied, of any proposed date. I do not accept Mr Cleary's submission that there was an agreement such as was reached in Cockerey which would bring this appeal within the findings in that case. I do not consider that any agreement was reached nor can it become implied from the communications between the parties. Furthermore, I reject the submission that the delay in commencing the review process was caused by the appellant. The letter accompanying the application for review indicated that counsel wished the matter be referred to the review section so that an early review hearing date could be fixed. Even if the file was received by the Rotorua office on 3 January 1996 as per its date stamp for reasons known only to it, the file was not referred to the review section until 20 March 1996. I consider that any delay which occurred was a delay by the respondent and not the appellant. 5 In the circumstances therefore, I consider that the appeal should be allowed. The appellant is therefore entitled to a finding that the decision of the respondent dated 19 December 1995 is overruled and the decision should now be in favour of the appellant. There will be costs of $750. DATED at WELLINGTON this 2 m day of April 1997 A W Middleton District Court Judge dc266-96.doc (nr)