Saggers v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 138 /2007 IN THE MATTER of the Injury Prevention, Rehabilitation and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN BRUCE SAGGERS (Al 365/06) Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent DECISION ON APPLICATION FOR REINSTATEMENT OF APPEAL 1] The applicant has made application to the Court for reinstatement of an appeal lodged by Notice of Appeal on 18 September 2006. [2] By that Notice of Appeal the applicant sought to appeal a Review Decision dated 24 August 2006. 3] In that Review, the applicant had sought to review the primary decision of the respondent dated 8 May 2006, whereby the respondent suspended the applicant's weekly compensation entitlement on the grounds that he had failed to complete a Statutory Declaration previously requested of him. [4] In the Review Decision, the Reviewer determined that it was reasonable for the applicant to have refused to complete the Statutory Declaration as of 8 May 2006, as of that date the respondent had failed to provide him with a copy of a letter of 10 February 2006, which had accompanied the original request for a Statutory Declaration, but which the applicant said he had not received 365.06 (pg) 2 [5] The Reviewer therefore modified the respondent's primary decision to hold that it would be reasonable for the respondent to have suspended entitlements to the applicant from 22 May 2006, it having been established that the respondent had provided the applicant with a copy of the letter of 10 February 2006 on 19 May 2006. 6] At all stages during the course of the review and subsequent the applicant has been represented by Counsel, Mr John Gwilliam. 7] Prior to this appeal coming on for hearing the respondent, through its solicitor, made a 'Without Prejudice' offer of settlement in a letter dated 13 November 2006. That letter stated as follows: "I am writing to advise that ACC is offering to settle this appeal. ACC is prepared to accept, in light of the Reviewer's findings, that Mr Saggers' refusal as at 8 May 2006 was reasonable. Weekly compensation will be reinstated from the date that payments were stopped (subject to medical confirmation of incapacity throughout this period). ACC will need information about any benefits or earnings that the applicant may have received over the period in question before the weekly compensation calculation can be finalised and the retrospective payment made. ACC is also prepared to offer $700 towards the legal costs incurred in respect of this appeal. Accordingly, it would seem that there is no need to proceed to the District Court. Please advise whether you agree that this matter may now be settled, and the appeal withdrawn. The settlement will be implemented once the appeal is withdrawn and the original claim file is returned from the Court to ACC." (8] That letter was responded to by Mr Gwilliam by letter dated 21 November 2006, being a letter addressed to the Court Registry and to the respondent's counsel. The relevant parts of that letter stated as follows: 365.06 (pg) 3 "BRUCE ALLAN SAGGERS v ACCIDENT COMPENSATION CORPORATION : AI NO.365/06 As you know I act for the applicant, Mr Saggers, in regard to this appeal. I can advise that ACC have now offered to settle this appeal. That settlement offer has been accepted by Mr Saggers in regard to appeal number Al 365/06. Accordingly this appeal can now be withdrawn." [9] Consequent upon receipt of that letter, the Registry advised the parties that the appeal was withdrawn accordingly and it was so noted. [10] It is the case that the respondent did not reinstate the applicant's weekly compensation nor did it make payment of the legal costs agreed to but rather, by letter dated 19 December 2006, the respondent again sought to have the applicant complete a particular Statutory Declaration which contained a number of questions to which his answers were sought. The Statutory Declaration was in the same form as had originally been presented to the applicant in March 2006. [11] In a letter of response dated 11 January 2007, Counsel for the Applicant contended that the respondent had not implemented the settlement, he contending that the settlement included the fact that it was not reasonable for the applicant to sign the Statutory Declaration and the letter then stated: "In these circumstances we have little choice but to refer the matter back to the Court for determination.' [12] It is following that letter that the applicant made application for reinstatement of his appeal. In that application the applicant relies on Rule 485(2) of the District Court Rules 1992, he contending that the District Court Rules apply to proceedings under the Accident Compensation Legislation. [13] It is Counsel's submission that the settlement achieved involved not just an acknowledgement that the reasonableness of the applicant's refusal to sign a Statutory Declaration was of a temporal nature, but rather of a substantive nature. [14] The contrary opinion is contended for by Counsel for the Respondent who submitted that the respondent's settlement offer, as contained in its letter, referred only to the 365.06 (pg) 4 temporal reasonableness of Mr Saggers' refusal to complete the Statutory Declaration, that is, as of 8 May 2006, but that the settlement did not extend to the applicant's continued refusal to sign the Statutory Declaration which was in line with the Reviewer's decision when he rejected that the refusal to complete the Statutory Declaration was reasonable. [15] Whatever may be the respective understandings of the parties in relation to the "settlement", it is clear that each had a different understanding of what, it has to be said, was a badly worded settlement offer which was accepted. [16] From the applicant's perspective, Counsel submits that the reasonableness or not as to whether the applicant should be required to complete the particular Statutory Declaration at all, is the issue. He states that it was never intended to forfeit the applicant's rights in regard to his position that the original request for the Statutory Declaration was itself unreasonable. Counsel submitted that the alternative to a reinstatement was to proceed with a fresh review of the respondent's decision of 26 January 2007, whereby it reaffirmed the requirement that the Statutory Declaration be completed, and the failure to do so brought about a continued suspension of entitlements. [17] I have set out above in a reasonably full form the background and the issue which has been presented to the Court in this application. However, as a matter of law I find that the Court has no power to order reinstatement as was suggested by Counsel for the Applicant. [18] The application relies on Rule 485 of the District Court Rules 1992. That Rule states in its entirety as follows: "Where neither party appears 485 (1) If neither party appears when the proceeding is called, the Court may order it to be struck out. (2) Where a proceeding is struck out under subclause (1), the Court may order it to be reinstated on good cause shown by either party and on such terms as it thinks just.' 365.06 (pg) 5 [19] It is clear from that Rule that the District Court has jurisdiction to reinstate a proceeding that has been struck out due to the non-appearance of either party. The commentary on this Rule is wholly referable to that state of affairs, and I find that it would be stretching it beyond the intention of the Rule to hold that this Rule gave the Court jurisdiction to reinstate an appeal which had been withdrawn by consent, or at least by the applicant. [20] I can indicate that were I to consider I had jurisdiction, I would rule that the applicant's position has merit, as I consider the respondent's stand in relation to the settlement is different from that which its offer implied. [21] I note from the applicant's submissions that he has lodged an Application to Review the respondent's decision letter of 26 January 2007, and I indicate that this course would seem to be the only avenue open to him to pursue the issue of whether or not the respondent was correct to suspend, or more particularly, not reinstate, his weekly compensation entitlement as it did. [22] I can indicate that I consider the respondent to be on extremely shaky ground by it not having reinstated and paying the applicant's weekly compensation and legal costs as it undertook to do under the terms of its settlement, but at the present time the Court cannot take that matter any further. [23] For the reason that there is no power or jurisdiction to make such an order, the Application for Reinstatement is dismissed. I make no order for costs. DATED at AUCKLAND this 22" of June 2007 Seats eattie District Court Judge 365.06 (pg)