Lawrence v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT ALD AT WELLINGTON Decision No. 121/ 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 CAROLYN MARIE FIRKEN LAWRENCE of Auckland Appellant (Appeal No. DCA 333/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE A W MIDDLETON ON THE PAPERS This appeal was set down for hearing at Auckland on 10 April 1997, but I granted the appellant's application for an adjournment because of the late delivery of the respondent's submissions to counsel for the appellant. As the application for adjournment was made on the evening of the day prior to the hearing but did not reach me until the morning of the hearing, appellant's counsel, Ms P K Cobcroft, attended the hearing in case the matter was to proceed. The hearing was adjourned sine die to enable each party to provide written submissions which I have now received. The issue is whether the respondent was correct to cease the payment of the appellant's entitlement to weekly compensation as a surviving spouse. The decision was made pursuant to s.145 of the Accident Rehabilitation and Compensation Insurance Act 1992 two years from the date the appellant entered into a relationship in the nature of marriage. The facts which give rise to the appeal are that the appellant's husband died in a motor vehicle accident on 7 March 1992 and the appellant was granted earnings PAGE. 1/4 CIVIL-APPEALS 23. AUG. 2005 (TUE) 15:55 2 related compensation pursuant to the 1982 Act. In December 1995 the appellant notified the respondent that she had entered into a relationship in the nature of marriage in or about March 1995. On 1 April 1996 the respondent advised the appellant that her entitlement to weekly compensation would cease pursuant to s.145(3) of the 1992 Act as from 1 May 1997. The appellant applied for a review of that decision which was unsuccessful. It is against that decision which the appellant now appeals. Ms Cobcroft submitted: 1. That the decision of the review officer was that the definition of remarriage included entering into a relationship in the nature of marriage. 2. That the question is to determine whether the definition of remarriage under s.145 of the Act includes entering into a de facto relationship or a relationship in the nature of marriage. That the appellant contends that "remarriage" does not include entering into a de facto relationship or a relationship in the nature of marriage. 3. That the words "marriage" or "remarriage" are not defined in the Act. That the review officer's finding that "counsel is correct that 'remarriage' is not defined in the Act and that general provisions cannot derogale from specific ones. Nevertheless, in my view, the word 'remarriage' cannot be taken on its own, but must be read in context with the rest of the subsection." was wrong. That the definition accorded to "remarriage" by the review officer is wider than that intended by the legislature and the legal definition of marriage 4. That the reason behind the requirement that compensation ends two years after the date of remarriage is the fact that the legislature intends the new spouse to financially provide for the deceased's spouse. In a de facto relationship there is no requirement to contribute and the matrimonial property regime does not come into force. The cessation of compensation therefore places an onus and inequitable burden on the deceased's spouse. Mr Barnett submitted: 1. That the appellant who was the surviving spouse with an entitlement pursuant to s.145(1) entered into a relationship in the nature of marriage. He posed the question whether this amounted to a "remarriage" pursuant to sub section (3). 2. That the 1992 Act recognises both a surviving partner of a de jure marriage and the surviving partner of a relationship in the nature of marriage by reference to the definition of spouse in s.3 which in so far as it applies reads: "Spouse', in relation to a deceased person, means a person - (a) to whom the deceased person was legally married immediately before his or her death; or PAGE. 2/4 64 4 9188144 CIVIL-APPEALS 23. AUG. 2005 (TUE) 15:56 3 (b) of the opposite sex whom the deceased was in a relationship in the nature of marriage immediately before his or her death ..." That similar recognition was given to a so called "de facto spouse" under the 1982 Act not through a definition of "spouse" but through a definition of "dependent" which included a person to whom the deceased owed a moral duty to support in whole or in part. That it has been recognised that a "dependent" included the spouse in a relationship in the nature of marriage so that under both the 1992 Act and the 1982 Act the so called surviving partner of the so called "de facto" marriage was entitled to weekly compensation. 3. That in order to give meaning to the term "marriage" or "remarriage" as it appears under the 1992 Act it is necessary to consider the context and the Act as a whole. In support of this submission he referred to the decision in Ruka v Department of Social Welfare (1996) 14 FRNZ 622 in which the Court of Appeal considered the term "relationship in the nature of marriage" in the context of the Social Security Act. In that decision Richardson P and Blanchard J said: "The statutory context is of great importance in determining what is 'the relationship of the nature of marriage'. Other statutes use the same expression but for different legislative purposes. What is or is not such a relationship may be viewed differently for different purposes. For example, absence of financial support will be of much less significance when a relationship is considered under the Domestic Violence Act 1995 ....". That this Court should adopt a similar approach to that adopted in Ruka. That being so, the approach is to ask what qualifies a person for the entitlement as a surviving spouse in the first place. Both a spouse in a legal marriage and a spouse in a relationship in the nature of marriage qualify for entitlement. Accordingly, the logic of the Act strongly suggests that as both a spouse in a legal marriage and a spouse in a relationship in the nature of marriage qualify for entitlement so therefore entitlement upon a subsequent de jure marriage strongly suggest that it will come to an end on the commencement of a relationship in the nature of marriage. To that extent the remarriage under s.145(2) means both de jure and de facto marriage. That the basis for the entitlement is not concerned with whether the marriage is de jure or de facto as both qualify. 4. That reference to the definition of "spouse" in s.3 suggests that the legislature intended that both a legally married person and a person in a relationship in the nature of marriage were married, otherwise the expression "legally" in paragraph (a) of the definition would be redundant. That the definition contemplates two sorts of relationships which amount to a marriage, namely those legally married and those in a relationship in the nature of a marriage. 5. That by reference to s.58 the meaning of "remarriage" can be assisted because that section deals with the non transitional claimant and creates the entitlement PAGE. 3/4 64 4 9188144 CIVIL-APPEALS 23. AUG. 2005 (TUE) 15:57 to weekly compensation for the surviving spouse which definition extends to both the de facto and de jure spouse. The issue falls to be considered in s.145(3) of the Act which states: "(3) The weekly compensation payable under subsection (1) of this section shall be cancelled by reason of the remarriage of the spouse 2 years after the date of that remarriage. " And the definition of spouse in s.3 which is: "' Spouse', in relation to a deceased person, means a person - a) to whom the deceased person was legally married immediately before his or her death; or (b) of the opposite sex whom the deceased was in a relationship in the nature of marriage immediately before his or her death ..." While Ms Cobcroft has suggested that there is an anomaly in the Act because of the use of the phrase "marriage" or "remarriage" I consider that a more generous approach has to be adopted. For this reason I have carefully listed Mr Barnett's submissions which in my view properly encapsulate the intention of the legislation. The intention as I see it is that the words used in s.145(3) when considered in the totality of the Act contemplate that a spouse is the person of the opposite sex to whom an applicant is married or with whom the applicant is living in a relationship in the nature of marriage and that that intention is to be carried through whenever they are raised in the Act. I agree with Mr Barnett that if that is not the intention then numerous anomalies would arise which do not arise if that intention is accepted. He submitted for example that it would be anomalous that whilst the surviving spouse of both de jure and de facto marriages qualifies for the entitlement only a de jure marriage and not a de facto marriage triggers cessation. The legislature could certainly not have intended this to be the result. Accordingly, I adopt Mr Barnett's submission and the appeal is dismissed. As the question of costs is governed now by the District Court Rules and as Ms Cobcroft had to make an unnecessary appearance on 10 April 1997 it is proper that an award of costs be made to her for that appearance. Costs will be fixed at $200. DATED at WELLINGTON this | 3 day of June 1997 A W Middleton District Court Judge de3.33-46.doe(rd) PAGE. 4/4 64 4 9188144 CIVIL-APPEALS 23. AUG. 2005 (TUE) 15:57