DONALDSON V ACC HC WN CIV-2006-485-895

DONALDSON V ACC HC WN CIV-2006-485-895 20 December 2007IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2006-485-895UNDER section 162(1) of the Injury Prevention, Rehabilitation, and Compensation Act 2001 IN THE MATTER OF an appeal to the High Court BETWEEN COURTNEY FRANCES DONALDSON Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 14 November 2007 Appearances: M Kavanagh and J Miller for Appellant I R Millard QC and P McBride for Respondent Judgment: 20 December 2007 In accordance with r540(4) I direct the Registrar to endorse this judgment with a delivery time of 4.30pm on the 20 th day of December 2007.JUDGMENT OF MACKENZIE J Background[1] This is an appeal under s 162 of the Injury Prevention, Rehabilitation, and Compensation Act 2001 (the 2001 Act) against two separate but related decisions of the District Court, both delivered on 15 November 2004, on appeals under s 149 of the 2001 Act. [2] Courtney Donaldson was born on 2 May 1996. She suffered a medical misadventure during the course of that birth, and incurred injuries which includedperinatal asphyxia and subarachnoid haemorrhage which resulted in quadriplegia, cortical blindness, epilepsy and bulbar palsy. These have left her severely disabled to the extent that she requires extensive care. A claim for cover under the Accident Compensation legislation was ultimately accepted, as was a claim for the provision of attendant care by her primary care giver, her mother. There are two aspects of the entitlement to payment for attendant care which are still in issue. The two issues are: (a) The rate at which payment for attendant care at night is to be made; and. (b) The date from which payment is to be made.The night rate appeal[3] Courtney's disabilities are such that she requires constant attention at a level greatly exceeding that required by a healthy child of her age. She requires assistance with all personal care tasks including feeding, dressing, bathing, toileting, positioning and transferring. Due to her epilepsy, she needs to be in view of a caregiver during all her waking hours. An assessment made in June 2001 noted that Courtney had never had a seizure free day. The required care has been provided, since Courtney's release from hospital after her birth, by her mother, Mrs Donaldson, with some respite care being provided, and, since Courtney commenced school, by care provided by the school during normal school hours. Mrs Donaldson is a solo parent with two other children, and the recipient of a domestic purposes benefit for much of the period (if not all; the precise evidence is not before me). The issue of home care support for Mrs Donaldson, to assist her and to recognise the level of care which she was providing, was first raised by a neuro developmental therapist with Mid Central Health in September 1996. She noted the extent of Courtney's disabilities and her needs. She also noted that Mrs Donaldson needed to assist Courtney to follow the neuro development home programme and to combine that with caring for a fractious and irritable Courtney on top of a busy household with no partner support. She recommended that Mrs Donaldson receive home care support.[4] At that stage, it seems that the possibility that Courtney's disabilities might be a result of medical misadventure, and so the subject of cover under the legislation in force at the date of birth, namely the Accident Rehabilitation and Compensation Insurance Act 1992 (the 1992 Act), was not recognised, so no application to the respondent (ACC) was made at the time. An application to ACC was apparently first made on 21 October 1997. The terms of the application are not before me, but it is common ground that a decision was made by ACC accepting that Courtney had cover under the 1992 Act. It is also common ground that the application was treated as including an application for attendant care and home help. After a lengthy consideration of what was clearly a difficult case, ACC in September 2001 accepted recommendations from its rehabilitation analyst that a sum of almost $200,000 be paid to a trust established for Courtney in respect of attendant care, and a further payment of some $25,000 be made in respect of respite care, for the period 21 October 1997 to 12 July 2001. Ongoing payments were also provided for. [5] A number of issues remained unresolved and were the subject of further applications and reviews, including appeals in 2002 and 2003 to the District Court. I am not concerned with those appeals, and it is unnecessary to describe them in detail. One issue which remained unresolved, and with which this appeal is concerned, was the appropriate rate at which payment should be made by ACC in respect of the overnight care which Mrs Donaldson provided for Courtney. The payment in September 2001 had been based upon an assessment by ACC of Courtney's case needs on 11 June 2001 as 70 hours direct care and 28 hours indirect care per week; up to 7 hours night care to be claimed on timesheets, and 11 hours home help per week. The appropriate rate of payment was the subject of a report from a senior analyst within ACC dated 1 May 2003, following recommendations by an assessor. The assessor had reported Courtney as being awake and requiring constant care for 13-13½ hours per day, and that during the night someone needs to be available to respond to her needs on an 'as required' basis: on occasions she requires a lot of assistance, on other nights, none. The recommended hours for home help, direct and indirect care were unchanged from the 2001 assessment, and the assessed level of direct and indirect care, at 14 hours per day, was assessed as covering all Courtney's waking hours. As to night care, the analyst's report to ACC noted an ACC policyregarding payment of night care for claimants under the complex personal injury aspect of the regulations. That policy was as follows:Caregiver Age of claimant Nature of overnight attendance care claimant assessed a needing Amount ACC will pay (excl. GST)Oversight supervision – no direct assistance – asleep all night Nil. Under age 14Direct assistance up to three times per night, and less than two hours personal care in total Hourly rate for full hour in which care is required, even if the task did not take that longOversight supervision – no direct assistance – asleep all night $40 per nightDirect assistance up to three times per night, and less than two hours personal care in total$50 per night Direct assistance more than three times per night, or exceeding two hours personal care in total $60 per night Family/house hold member Age 14 and over Continual attendance – awake all night, or up every hour Hourly rate for Level 1 or Level 2 care[6] Payment of night care at the rate appropriate for a person over the age of 14 was recommended. At that time Courtney was 7 years of age. The analyst's report noted that the rationale for the different night rates according to age was based on the legal requirement that a child under 14 should not be left unsupervised for any period, and that if no assistance is actually required, ACC should not pay people to sleep in their own home. The report also noted that the night care payment reflected Courtney's age-related need for supervision, and that the assessment should be based on her injury-related needs only. [7] The ACC consultant then acting for Mrs Donaldson applied for a review of the decision of the corporation made in accordance with that recommendation. That application for review sought "payment at commercial rates for attendant care . in relation to night time care in particular". The reviewer, in a decision dated 24 December 2003 dismissed the application. The reviewer said:"I find that ACC has exercised its discretion correctly under the principles confirmed in the case law above. ACC has reassessed Courtney's personal care needed and has then used its discretion only in the area of the amount of payment for the night care hours that have been reassessed as being required."[8] An appeal was lodged with the District Court against that decision, and the decision of Judge Ongley on that appeal delivered on 15 November 2004, is the first subject of the appeal before me. On that appeal, the submission for the appellant was summarised by the Judge in these terms:In a decision letter of 21 May 2003 the appellant was notified that the respondent agreed to pay night time case at $50 per night. Mr Rennie for the appellant submits that the decision was unreasonable or failed to address a relevant consideration, because there is no evidence that the Corporation made any enquiries as to the relevant commercial rate for night time care applicable at that time or at the time the service should have been provided. Mr Rennie submitted in this case that the appellant is entitled to be paid at the appropriate "commercial rate" for the services provided to her by her mother following her discharge from hospital. If Courtney's mother had not provided the necessary care, she would have had to purchase the services at the (then) current commercial rate from the date of Courtney's discharge from hospital on 3 June 1996. It is submitted for the appellant that a decision to apply the night rate set out in the Informe claims manual to all claimants regardless of their individual requirements or circumstances and without considering any alternative "commercial" rate which would be charged in the open rehabilitation services" market was not a proper exercise of discretion by the respondent. The respondent did not direct its mind to any alternative other than the rate set out in Informe. There is no indication as to how the figure of $50 for night care was arrived at or why it was so much less than the prevailing "commercial rate" current at the time and was the rate at which Access Homehelp Ltd. invoiced the respondent for providing those services.[9] Counsel for ACC submitted on that appeal that the rate was reasonable, that it is the rate payable to carers ordinarily residing in the household, and that the general policy guidelines used by ACC in adopting that rate are of the kind that are permissible in terms of Westhaven Shellfish Limited v Chief Executive of Ministry of Fisheries [2002] 2 NZLR 158. The judge accepted the submission that the policy of paying a lesser rate to a person resident in the household is reasonable. He accepted, too, a submission that a person ordinarily in the household is not in the same position as a commercial entity in respect of its costs. His decision is recorded in the following terms:I consider that the Corporation was not obliged to look at the commercial rate then being charged by providers. The commercial rate is based on market considerations and incorporates costs and margins that are not likely to be relevant when considering the appropriate rate of compensation for a member of a household providing care at night. It is only the night rate that is in contention in this appeal. Applying the test in Alex Harvey Industries v CIR I find that the exercise of discretion could not be said to be wrong on the evidence available.[10] In granting leave to appeal against that decision, Judge Cadenhead, in a judgment delivered on 28 April 2006 said:I am of the view in this case that an important bona fide legal principle arises as to whether or not the Corporation properly exercised its discretion by adopting the fixed rates set out in Informe and without considering any other factors peculiar to the appellant, such as commercial rates that might make the figure of $50 for night care unreasonable. I also take into account that the personal circumstances of the appellant, namely, that Mrs Donaldson is a solo mother with two other young children was not mentioned in the review decision, and accordingly was not considered by His Honour on appeal as to whether that factor should be taken into account.[11] In support of this appeal, Ms Kavanagh submits that the powers of the reviewer extended to reviewing the exercise of the discretion of ACC, and that the District Court must also have that power on an appeal by way of rehearing. She submits that the judge considered that he could look only at the exercise of discretion in relation to the failure to take account of the commercial rates when fixing the amount to be paid and that in doing so he unduly restricted himself as to his powers. She submits that the rate paid for overnight care in the appellant's case was not arrived at after a proper balance of policy considerations and other relevant factors specific to the case. She submits that ACC have simply applied their standard policy without any consideration of the individual circumstances of the prevailing rates paid to commercial care givers at the time. She submits that ACC did not take into account the extra effort expended by Mrs Donaldson as a single mother with two other children in her full time care and having to rise frequently to provide care to her seriously disabled child. She submits that that is not a proper exercise of discretion but is the application of an inflexible policy without balancing policy considerations with other relevant factors.[12] For the respondent, Mr Millard QC notes that the appeal to this court is an appeal on a question of law so the issue has to be whether ACC and the reviewer got the issue of the rate for night care so wrong that the District Court ought to have intervened such that, as a matter of law, this appeal should be allowed. Mr Millard submits that the statutory context is such that the rate needs to be what, in all the circumstances, is a fair rate having regard to the principle recorded in ACC v Nelson[1979] 2 NZLR 464 at 466 where the Court of Appeal said "the general aim has been described as being, not to grant complete restitution, but to cushion the results of accident injury by providing substantial but not total restitution". Mr Millard submits that the decision to reject the commercial rate was an appropriate one and that the reviewer cannot be said to have acted on a wrong principle, failed to take into account some relevant matter or taken into account some irrelevant matter, or was plainly wrong, in not awarding a fully commercial rate, applying the test in Alex Harvey Industries and Commissioner of Inland Revenue [2001] 15 PRNZ 361. Mr Millard submits that the appellant chose an "all or nothing" strategy of arguing for a commercial rate with no fall back position and did not put before the reviewer any information to justify a rate other than the commercial agency rate. He submits that the reviewer was entitled to assume that, if the commercial agency rate was held inappropriate, the appellant was satisfied that the rate decided on by ACC was appropriate. [13] In determining this appeal, regard must be had to the fact that this is a second appeal, on a question of law. The first appeal, from the reviewer to the District Court, is, under s 155(2), a rehearing, in which further evidence may be heard. Such an appeal is to be determined by the Court which must consider for itself the issues which had to be determined on the original hearing and the effect of the evidence then heard as it appears in the record, but applying the law as it is when the appeal is heard: Pratt v Wanganui Education Board [1977] 1 NZLR 476, at 490. In considering the issues for itself, the Court's approach is to consider the materials which were before the tribunal appealed from and any additional material before the Court itself by way of further evidence, and then to make up its own mind, carefully weighing and considering the decision appealed from, reversing it if on full consideration it comes to the conclusion that the decision was wrong. Where the decision appealed against involves the exercise of a discretion, the Court will notinterfere with that exercise unless it has been exercised on a wrong principle, or otherwise contrary to the well-established principles for appeals against the exercise of a discretion: Fletcher Metals Ltd v Commerce Commission (1986) 6 NZAR 33;Alex Harvey Industries Ltd v C.I.R. (2001) 14 PRNZ 361. [14] These then are the principles which apply to the appeal to the District Court. On the further appeal to this Court, the appeal is confined to questions of law. What is a question of law is discussed in Edwards v Bairstow [1956] AC 14 at 36. It is succinctly summarised, in the present context, by Doogue J in Impact Manufacturing Ltd v ACC (AP 266/00, Wellington, 5 July 2001). It is not necessary for me to elaborate. Here, the question on this appeal is whether the Judge has correctly applied the relevant principles when upholding the reviewer's decision. [15] In upholding the reviewer's decision, the Judge has, at para [24], set out above, treated the reviewer's decision as the exercise of a discretion. I do not think that the decision does involve the exercise of a discretion by the reviewer. The reviewer in her decision dated 24 December 2003, stated the issue as being "whether ACC has correctly calculated the 'night care' arrears .". She held "I find that ACC has exercised its discretion correctly under the principles confirmed in the case law above". Thus, her decision was a decision that the principles had been correctly applied. That is not the exercise of a discretion by her. She did not interfere with the exercise of discretion by ACC. I consider that the question whether ACC's original decision was correct in principle was the essential issue on the appeal to the District Court. That is an issue which is properly the subject of this appeal, as a question of law in terms of s 162 of the 2001 Act. [16] I consider that ACC has acted on a wrong principle in applying the rate in the scale. That scale was not applicable. Courtney was at the time aged under 14. To the extent that the scale was applicable, the rate for a child under 14 applied. ACC rightly recognised that the application of that rate would not lead to a decision which was appropriate to the circumstances of this difficult case. However, instead of approaching the matter by considering what was an appropriate payment, ACC simply adopted what can only be described as the convenient expedient of applying the rate fixed in a part of the scale which did not apply, namely the rate for a personover 14 years. I am satisfied that that was not an appropriate method of arriving at a rate of payment. What was required was an individual consideration of the circumstances of the case. [17] Mrs Donaldson is responsible for providing attendant care at the level required by Courtney's disabilities on a 24 hour, 7 day a week basis, except for periods during school hours on school days, and on periods when respite care is available. She must combine that care with her other responsibilities in running a household and looking after other children. What was required was an assessment of the appropriate rate for the need to be on call through the night, every night, to deal with such needs as may arise, in addition to the other burdens which she had, and for the disruption to sleep which she would necessarily undergo if assistance was in fact required. I consider that it cannot be said that it was sufficient, as a substitute for that assessment, simply to apply a rate prescribed in the scale, for other circumstances not applicable here, and which was manifestly not applicable in its own terms. [18] It is no answer to say, as Mr Millard submits, that no material other than in respect of commercial rates was made available by the appellant, the reviewer was entitled to assume that the rate decided on by ACC was appropriate. The reviewer was herself required to access whether that rate was appropriate. That was not done. In considering the appropriate rate, the reviewer had information about the rates charged by commercial providers, and she also had information about the rates in ACC's scale. Both of these were relevant information for her to take into account in deciding what the appropriate rate should be, but neither of them was determinative, since neither of them was exactly applicable to the case under consideration. [19] In reaching this conclusion, I emphasise that I am not concerned with the question of whether ACC's scale may be appropriate in cases to which it applies. As I have noted, counsel for ACC submitted before the District Court that the fixing of the scale is a permissible exercise by ACC, in that ACC used general policy guidelines of a permissible kind. I make no finding on that issue, so far as it may relate to the case to which the scale applies. This is a case to which the scale does not apply.[20] For these reasons I consider that the appeal must be allowed and decision of the District Court must be set aside. The matter must, in my view, be remitted for reconsideration. Under s 76(1)(a), of the District Courts Act 1947, (applicable by s 162(5) of the 2001 Act) this Court may make any decision which it thinks the District Court should have made. The District Court has power under s161(1) of the 2001 Act, to quash the review decision. I consider that this is the appropriate course here. Accordingly, the review decision is quashed, and another review is to be conducted. In that review, the reviewer shall be required to consider and determine the appropriate night rate for payment, in the light of the matters set out in this judgment.The date of payment[21] The second aspect of the appeal is the date from which payment for attendant care can be made. [22] Courtney was discharged from hospital on 3 June 1996, and went home, under the primary care of her mother, who has provided care from the date of discharge. As I have noted, no claim for cover under the Act, or for payment of attendant care, was made until October 1997, when Mrs Donaldson lodged an application for cover under the Act. The claim for cover was eventually accepted by ACC on the grounds of medical mishap on 20 July 2000. Payment of attendant care was governed by the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation – Attendant Care) Regulations 1993 (the Attendant Care Regulations). On 25 September 2001 an offer was made by ACC for the payment of attendant care, payable from 21 October 1997 being the date on which Mrs Donaldson had first made a claim to ACC. A claim to backdate the payment further to the date of discharge from hospital on 3 June 1996 was rejected. That issue was ultimately the subject of an appeal which was the subject of the second decision delivered by Judge Ongley on 15 November 2004. Leave to appeal to this court was granted by Judge Cadenhead on 28 April 2006.[23] The short point on the appeal is whether payment from a date earlier then 21 October 1997 is precluded by regulation 8 of the regulations, which provides as follows:8 Commencement of payment (1) Subject to subclause (2) of this regulation, where a person is assessed as entitled to an attendant care payment, that payment shall become due and payable from the date of the written application or the date of discharge from a hospital following initial treatment for the personal injury, whichever is the later. (2) Where a person is assessed as entitled to an attendant care payment and the intended carer of that person requires training before that person is discharged from a hospital following initial treatment for the personal injury, the attendant care payment shall, for the purposes of such training, become due and payable from the date 2 days before the final discharge from hospital following initial treatment for the personal injury[24] In his decision, Judge Ongley discussed the scheme of the legislation and the authorities on it. He held that he was obliged to accept counsel for ACC's submission that there is no jurisdiction to circumvent the plain words of the regulations on review or appeal. He discussed the question of whether the regulations were valid under the regulation making powers contained in s 167 of the 1992 Act and held that the District Court had no power to declare the regulation invalid. He nevertheless set out the parties' arguments on the point. He reached the conclusion that the decision by ACC to decline attendant care the home help entitlements between the date of discharge from hospital and the date of the application of 21 October 1997 was correct. [25] Ms Kavanagh, for the appellant, submits that regulation 8(2) of the regulations allows payment of attendant care to commence two days before the date of discharge from hospital where the intended carer would need training to care for the injured person, and that no written application is required in such circumstances. She submits that a "generous and unniggardly interpretation" of regulation 8(2) would allow attendant care to be paid from two days before her discharge and continue thereafter. Her second argument is that the requirement in the regulation for a written application can be waived or deemed to have been complied with by ACC in circumstances such as this. She submits that accordingly, payment can be made from an earlier date.[26] Counsel for ACC submits that regulation 8 is clear and precludes the back dating of entitlement to a date earlier than the date of application and that regulation 8(2) does not enable that result to be reached. He further submits that the fact that the appellant is a minor under a disability does not affect this outcome. [27] I consider that neither of the arguments advanced by Ms Kavanagh can be accepted. The wording of regulation 8(1) is clear. The decision of the Court of Appeal in Campbell and Handley v ACC (CA 138/03, 29 March 2004) at para [33] rejected an argument similar to that now advanced, so far as the interpretation of regulation 8(1) is concerned. As to regulation 8(2), that cannot be read in such a way as to overcome the limitation in regulation 8(1). Regulation 8(2) is clearly directed toward a very specific situation, where an application has already been made and assessed. It does not detract from the clear words of Regulation 8(1). [28] I am of the view, however, that for reasons different from those advanced in argument, the time limit in regulation 8(1) does not apply. That conclusion follows from a consideration of the relevant legislative history of the 1992 Act and the Regulations. [29] Attendant care falls within the definition of "social rehabilitation" in s 26 of the 1992 Act. Provision for payment of social rehabilitation was provided for in that section. As originally enacted, s 26(1) read as follows:"26. SOCIAL REHABILITATION— "(1) In order to ensure— "(a) Consistency of provision of social rehabilitation; and "(b) Certainty of entitlement to social rehabilitation— no provision of, or payment in respect of, social rehabilitation shall be made by the Corporation in respect of any person except as required or permitted by regulations made under this Act.[30] Under that section, no payment could be made in respect of social rehabilitation unless that was permitted by regulations. The regulation making power was contained in s 167 of the 1992 Act. Section 167(1)(l) provided that regulations could be made:Prescribing the extent to which the Corporation may meet the costs of social rehabilitation, health care treatment, services, and certificates, and related transport costs, and prescribing the circumstances in which, and the method by which, the Corporation shall make any payment in respect of that rehabilitation or those treatments, services, certificates, and related transport costs, and may enter into arrangements and make contributions in respect of them; and prescribing the persons to whom those payments may be so made:The relevant regulations were the Attendant Care Regulations, which included regulation 8. Those regulations came into force on 1 July 1993. So, there was no entitlement, under the general coverage provisions in the 1992 Act, particularly s 8, to any payment in respect of social rehabilitation. The entitlement was founded solely on the Regulations. Since s 26 expressly prohibited any payment in respect of social rehabilitation except as required or permitted by the Regulations, the restriction on payment prior to receipt of an application must be viewed as part of the prescription of the extent to which payment could be made, and accordingly as falling within the regulation making power of s 167(1)(l). [31] Subsequent to the passage of the regulations, s 26 was amended, by the 1996 Amendment Act (No 2), with effect from September 1996. That was prior to the application on Courtney's behalf for the provision of social rehabilitation. Subsection (1) was amended to provide:[26 Objective of social rehabilitation (1) The objective of social rehabilitation is to restore the independence of a person to the extent that the person's independence has been lost by personal injury covered by this Act.A new s 26A was inserted. That section provided26A Provision of or payment for social rehabilitation (1) Subject to subsection (2) of this section, the Corporation may make any provision or payment in respect of social rehabilitation that is required or permitted under this Act and that is consistent with the objective set out in section 26(1) of this Act. (2) The Corporation's power, under subsection (1) of this section, to provide or pay for social rehabilitation— (a) Is exercisable notwithstanding anything in any regulations made under this Act, subject to any direction of a type referred to in section 159(2) of this Act that is for the time being in force; and(b) Is exercisable subject to any direction of any other type for the time being in force under section 159 of this Act.[32] The enactment of s 26A fundamentally changed the basis of entitlement to payment in respect of social rehabilitation. Entitlement was now based on the 1992 Act, not the Attendant Care Regulations. Payment of attendant care was no longer subject to the provision that it could be paid only as permitted by regulations. That fundamental change must affect the regulation making powers in s 167(1)(l), and the regulations made under it. Any prescription as to the extent to which ACC may meet the costs of social rehabilitation must, after the amendment, reflect the basic entitlement to cover under the Act. No consequential amendment was made to s 167(1)(l), or to regulation 8(1). [33] The status of regulation 8(1) following the amendment to s 26 needs to be considered. I consider that the provision that payment shall become due and payable only from the date of application is inconsistent with s 26A. I consider that the doctrine of implied repeal must apply. Section 26A, as both the superior legislation, and the later in time, must prevail. The conclusion that the doctrine of implied repeal should apply is reinforced by s 261(2)(a). That section gives a clear indication that the amendment to the legislation is to prevail over the regulations. Accordingly, I hold that the restriction as to payment in regulation 8(1) does not apply, in this case, to prevent payment prior to the date of application. The application was, as I have noted, made after s 26A was in force. [34] Mr Millard submits that, following the enactment of s 26A, a ministerial direction was given under s 26A(2) which has the effect of applying regulation 8(1) to cases arising after the enactment of s 26A. That ministerial direction was given on 2 September 1996, and directed that payments in respect of social rehabilitation should be made only as authorised in regulations made under the 1992 Act. I do not consider that that ministerial direction can have the effect of reinstating the restriction as to payment in regulation 8(1) which was, as I have held, impliedly repealed by the amendments to the Act, and which s 26A(2)(a) also indicates is no longer to apply. To apply the ministerial direction in a way which overrides both the doctrine of implied repeal, and the specific direction in s 26(2)(a), would be to allow tertiary legislation to prevail, notwithstanding the implied repeal of the secondarylegislation by the primary legislation. That cannot be right. Any direction under s 159 must comply with the legislation. If the direction were applied as counsel for ACC submits, it would not do so. [35] For these reasons I allow the appeal in respect of the date of payment issue. I remit the matter to the reviewer, to reconsider the date from which payment for attendant care should be made, in the light of this judgment.Result[36] For the reasons I have given, both appeals are allowed and the respective applications are remitted to the reviewer as I have indicated in paragraphs [20] and [35]. [37] Subject to any legal aid considerations which may affect the position, my preliminary view is that the appellant is entitled to costs on a 2B basis. If the parties are unable to agree in the light of that indication, they may submit memoranda."A D MacKenzie J"Solicitors: John Miller Law, Wellington for appellant McBride, Davenport James, Wellington for respondent