Murphy v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 184 /99 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN BRIAN FRANCIS MURPHY of Palmerston North Appellant (Appeal No. DCA 267/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT The appellant has applied under section 97 of the Act for leave to appeal to the High Court against the decision of His Honour Judge M J Beattie issued on 24 March 1999 under number 76/99. The issue before the Court was whether the appellant was entitled to the benefit of the provisions of section 90(9) of the Act in respect of a decision of the respondent issued on 15 October 1997. The appellant's advocate submitted that the hearing of the review was flawed because the Review Officer lacked jurisdiction because his appointment was invalid. The background which gave rise to the appointment of the Review Officer is that after the appellant had lodged an application for review of the decision of the respondent made on 15 October 1997, the respondent appointed Mrs J C Kermode as Review Officer on 26 March 1998. As the appellant's application for review was lodged on 7 January 1998, there was a duty on the respondent under section 90 to commence the review hearing within three months of that date. 2 Prior to Mrs Kermode's appointment as Review Officer, the respondent notified the appellant by letter dated 3 March 1998 that the review hearing would take place on 26 March 1998. When the appellant enquired the name of the Review Officer appointed to undertake the review hearing, the respondent notified him by letter dated 5 March 1998 that at that stage no appointment had been made. When the appellant's advocate attended on 26 March 1998 he was introduced to Mrs Kermode as the Review Officer appointed to undertake the hearing. The advocate made the submission that the hearing could not take place because in terms of the provisions of section 90(5) Mrs Kermode, being the person appointed to undertake the review, had not given the appellant the seven clear days notice of the date, time and place of the hearing. Mrs Kermode agreed that she had not complied with section 90(5) and declared the hearing a nullity. It then followed that a notification was sent to the appellant on 27 March 1998 by Mr D B Pullen that he had been appointed to hear the review. Mr Pullen gave notice that the appellant was to attend a pre-hearing conference on 7 April 1998 in order to settle preliminary issues in relation to the review hearing. The appellant's advocate attended the pre-hearing conference on 7 April 1998 when he then challenged the validity of the appointment of Mr Pullen as Review Officer. Mr Pullen considered that as he had the necessary jurisdiction he intended to proceed with the review hearing at which time the appellant's advocate excused himself from the hearing. Mr Pullen then proceeded with the review hearing in the absence of the appellant and his advocate as a result of which he issued a decision on 12 June 1998 upholding the respondent's decision of 14 October 1997 that it would cease the appellant's entitlements under the Act. It was against that decision which the appellant appealed to this Court. In this Court the appellant's advocate again challenged the jurisdiction of the Review Officer but His Honour Judge Beattie found that Mr Pullen had the necessary jurisdiction and that his decision confirming the respondent's primary decision was correct. The appellant's advocate applies for leave to appeal to the High Court only on the question of the jurisdiction of the Review Officer. As this issue raises a question of law leave to appeal to the High Court is granted. DATED at WELLINGTON this 9th day of July 1999 A W Middleton District Court Judge dca267-98.doc (nr)