Coutts v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 94 199 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 BARRY WILLIAM COUTTS DCA 411/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT The appellant has applied for leave to appeal to the High Court against the decision of His Honour Judge A W Middleton issued on 15 December 1998 under No.267/98. The issue in that appeal was whether the respondent was entitled to reassess the appellant's relevant earnings for the purposes of calculating quantum of weekly compensation. The learned Judge ruled that because the appellant's entitlement to weekly compensation had arisen in 1989, the transitional provisions of the 1992 Act applied, in particular section 138(2). 2 The learned Judge ruled that the respondent was entitled to adjust the appellant's entitlement to weekly compensation by way of reassessment by applying the provisions of section 53 of the 1982 Act and that the provisions of section 67A of the 1992 Act empowered the respondent to review or amend its earlier decision when it appeared that that decision had been made in error or was based on false or misleading information. The factual circumstances are not in dispute, that is that it subsequently transpired that the appellant's income for the year ended May 1989, which was the income year in respect of which his relevant earnings were assessed and the quantum of weekly compensation fixed, was in fact an extraordinary year and took account of deferred livestock sale profits from 5 years previously but which came into that income year. It was established that on average the appellant's income from his farming for the four years immediately preceding his injury was $20,939 as opposed to the sum of $49,876 which was the income in the year preceding the injury and in respect of which there was this extraordinary item. The appellant poses five questions of law which he contends ought to be submitted to the High Court for determination. The respondent accepts that the appellant has identified three such questions of law but that of the remaining two questions so submitted, one has already been the subject of a High Court ruling and the other is purely a question of fact and discloses no error of law. The first question of law in contention is that of His Honour's decision that the doctrine of estoppel cannot apply to decisions of the respondent. This issue was the subject of a decision of His Honour Justice Laurenson in the Auckland High Court on 15 December 1998 under HC 97/97 where His Honour affirmed the principles of law pertaining to estoppel and the exercise of a statutory power as enunciated in Wades Administrative Law 6th ed. 1998 at pp 62, 64 and Halsbury's Laws of England Vol.16 para 1515. The principle is probably best encapsulated in the statement from Wade: I:\AUTHORIT\BEATTIE\Coutts.doc In public law the most obvious limitation on the doctrine of estoppel is that it cannot be invoked so as to give an authority powers which it does not in law possess. In other words, no estoppel can legitimate action which is ultra vires. In Halsbury it states: Where a statute, enacted for the benefit of a section of the public, imposes a duty of a positive kind, the person charged with the performance of the duty cannot by estoppel be prevented from exercising the statutory powers. The second question which the respondent identifies and opposes is that of whether the discretion provided in section 53 of the 1982 Act was fairly and reasonably exercised to establish the appellant's average weekly earnings. That finding by His Honour is wholly a finding of fact and does not raise any question of law and certainly the question posed by the appellant is not a question of law and there cannot be said to be any error of law in the Judge's decision in that respect. Accordingly then on the basis that counsel for the parties have identified three questions of law and in respect of which this Court confirms that such questions are legitimately raised, leave is granted to the appellant to appeal to the High Court on the following issues. i) The decision that under section 138(2) of the Accident Rehabilitation and Compensation Insurance Act 1992 adjustments to calculations which had been made under the Accident Compensation Act 1982 could be made to include recalculation of relevant earnings. ii) The decision that section 67A of the Accident Rehabilitation and Compensation Insurance Act 1992 empowered the respondent to review or amend its earlier decision in the way that it has done in this case. ifi) The decision that section 41 of Accident Rehabilitation and Compensation Insurance Act 1992 did not apply to this appellant's situation. I:\AUTHORITIBE 4 On those three questions I find that it is appropriate they be referred to the High Court for determination and accordingly leave to appeal is hereby granted. DATED at Wellington this 19Th day of April 1949 kathe M J Beattie District Court Judge I:\AUTHORIT\BEATTIE\Coutts.doc