Philippi v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT NAPIER Decision No. /2003 IN THE MATTER of the Accident Insurance Act 1998 AND IN THE MATTER of an appeal pursuant to Section 152 of the Act BETWEEN EMILY DOBSON (AI 85/03) Appellant AND - ACCIDENT COMPENSATION CORPORATION Respondent HEARD at NAPIER on 20 October 2003 APPEARANCES Mr J Dobson, advocate for appellant. Miss K Wickham, counsel for respondent. RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] The issue in this appeal is whether the appellant has an existing right of review of a decision of the respondent relating to the quantum of her entitlement for certain dental work performed on her. [2] This is an appeal from a review decision dated 30 January 2003 whereby the Reviewer ruled as a matter of law that he had no jurisdiction to consider the substantive issue relating to the quantum of the appellant’s entitlement for payment of dental costs on the basis that her application for review of the respondent’s decision regarding that entitlement was filed outside the three month period provided in the Act. [3] The issue in this appeal as I see it is largely a question of law, being a question of statutory interpretation. The facts which are relevant to that question of law are not in dispute. Those facts may be stated as follows: 85.03 (pg) 2 • At the material time the appellant was aged 20 years and was a student attending university in Wellington. • When aged 8 years of age the appellant had suffered severe damage to several of her teeth in an accident and she had cover for injuries to her teeth arising from that accident. • The nature of the appellant’s age at the time those injuries were sustained meant that much of the remedial dental work had to wait until she attained a certain level of maturity and part of the work of the Oral and Maxillofacial surgeon was in that category. • In April 2001 Mr Gerard Thyne, Oral and Maxillofacial Surgeon, sought the respondent’s approval to carry out certain surgical procedures on certain of the appellant’s teeth. • By decision letter dated 18 May 2001, the respondent gave its consent to the treatment proposed by Mr Thyne and also for the costs thereof. • In that decision the respondent also indicated the nature of other costs associated with Mr Thyne’s treatment as only being met up to a particular figure. • At the time the respondent made its decision the appellant was resident in a student flat in Wellington at the address of 72 Tasman Street. • The surgical procedures were duly carried out by Mr Thyne and the associated dental work was duly carried out by Dr Karen Harris. • It is the case that Dr Harris was required to carry out certain bridge work for which an account totalling $3,375 was made but which was only belatedly referred to the appellant, care of her family home address in Hastings. • It was on receipt of this dental account that the appellant sought payment of same by the respondent and it was then, namely October 2002, that the respondent advised the appellant that the particular dental account was not one for which the appellant had an entitlement to cover and that this fact had been part of its decision of 18 May 2001. A copy of the respondent’s decision of 18 May 2001 was thereupon forwarded to the appellant on 23 October 2002. • On 5 November 2002 the appellant lodged an application for review of the respondent’s decision of 18 May 2001. • A review hearing took place on 13 January 2003 at which the appellant gave evidence and she stated, inter alia, that whilst she accepted that 85.03 (pg) 3 her residential address at the material time was 72 Tasman Street, Wellington, that she had never received the respondent’s letter of 18 May 2001. • The respondent, for its part, advised that the letter had never been returned to it as being unclaimed or not delivered. • In a decision dated 30 January 2003 the Reviewer found that the decision letter had been posted by the respondent to the appellant’s usual address. Therefore in terms of Section 368 it was deemed to have been delivered at the time it would have been delivered in the ordinary course of post. In those circumstances the Reviewer found that the application for review was out of time and the substance of the appellant’s application could not be considered as there was no jurisdiction to consider that late application for review. [4] The appellant was represented by her father at the hearing of this appeal and I received evidence from him that the physical location of the dwelling where his daughter resided at the material time was a student flat which she shared with others and which had other dwellings adjacent and which were all accessed up a lengthy flight of steps and where the letter boxes for this group were located half-way up that steep flight of steps. [5] It is also the case that the appellant herself, when she gave evidence at the Review Hearing, stated that she had not received the letter, that she could not recall receiving the letter, but that she acknowledged that she was residing at the address stated in the letter at the time. [6] The Reviewer stated in his decision that he accepted the evidence given by the appellant, and that of her father, without reservation and both impressed the Reviewer as being honest witnesses. [7] In those circumstances I find and rule that in the context of this appeal the evidence given by the appellant and her father must be accepted and that it is the case that she did not actually receive the respondent’s decision letter of 18 May 2001 until a copy of same was forwarded to her care of her father on 23 October 2002. [8] It is also the case that it was not until October 2002 that, “out of the blue,” the dental account of Dr Karen Harris was presented to the appellant direct and that it was 85.03 (pg) 4 the receipt of this account that caused the appellant, through her father, to question why the respondent had not paid same. [9] From a legal perspective I find that if, as a matter of law, it can be found that the respondent’s decision letter of 18 May 2001 was only actually received by the appellant on or about 23 October 2002, being the date when the copy was forwarded to the appellant’s father, then the application for review which was lodged on 5 November 2002 was clearly within the three month period required by Section 136 of the Act. [10] The issue in this appeal, I find, falls to be determined by a consideration of the provisions of Section 368 of the Act. Those provisions state as follows: “368 – How documents given or information notified  (1) This section applies when  (a) This Act requires a document to be given to a person; or (b) This Act requires a person to be notified of any information, and references in this section to a document being given must be applied accordingly. (2) A document that this Act requires to be given to a person must be given by the method in subsection (3) that the person required to give the document considers is most likely to ensure that the document reaches the person. (3) The methods by which a document may be given are  (a) Personally delivering it to the person; or (b) Posting it to a usual address of the person; or (c) Sending it to the person by fax or some other electronic means; or (d) Providing it to the person in a manner approved by the person. (4) A document personally delivered under subsection (3) (a) must, if delivered to a corporate body, be delivered to the corporate body’s offices during working hours. 85.03 (pg) 5 (5) A document posted under subsection (3)(b) is deemed to have been delivered to the person at the time it would have been delivered in the ordinary course of post. For the purposes of proving delivery, - (a) It is sufficient to prove that the document was properly addressed; and (b) The document is presumed, in the absence of proof to the contrary, to have been posted on the day on which it was dated. (6) A document sent under subsection (3) (c) is deemed, in the absence of proof to the contrary, to be delivered on the day after the day on which it is sent, and it is sufficient proof of sending that a correct machine-generated acknowledgement of receipt exists. (7) This section is subject to section 60 and to any provision of this Act that specifically provides how a document is to be given.” [11] It is the assertion of counsel for the respondent that the respondent’s decision letter was posted to the appellant’s usual address in terms of subsection (3)(b) and therefore in terms of subsection (5) it was deemed to have been delivered to the appellant at the time it would have been delivered in the ordinary course of post, namely within two days of the date of the letter. [12] I took Miss Wickham to be contending that the deeming provision of subsection (5) was such as to be conclusive of the matter and therefore the appellant’s application for a review of that decision, lodged as it was some eighteen months later, was clearly outside the three month review period laid down in Section 136. [13] In fairness to Mr Dobson, he was not equipped to argue matters of law and confined himself to the general assertion that it was unfair that a technicality should deny his daughter the right to question the respondent’s decision regarding its refusal to pay the dental costs associated with her maxillofacial surgery. He stated that this was the first occasion that any of the dental costs associated with the appellant’s injury had not been met without question and he was naturally upset by this turn of events. [14] The question of law which I discern arises for consideration is whether it must be found as a matter of law, by virtue of Section 368(5) that the respondent’s decision 85.03 (pg) 6 letter was deemed to have been delivered on or about 18 May 2001 and must be taken as so, even though there is evidence that the Court accepts that that letter was not ever received by the appellant. In other words, is the wording “deemed to have been delivered” a statutory term of conclusiveness or a term which is one which is rebuttably presumed. [15] The word “deem” or “deemed” is a word which can be found in a large number of statutes and in that regard I note the commentary on “deeming” provisions by Professor Burrows in his authoritative text ‘Statute Law in New Zealand’, Third Edition (2003). At pages 295-297 he discusses the various contexts in which the word “deem” is used by Parliamentary drafters. [16] Firstly, there is the use where the context is the creation of a statutory fiction. The illustration given is that of the Dogs Registration Act, where the owner of the premises on which the dog was kept was “deemed” to be the owner for the purposes of that Act. Professor Burrows says that in the main those statutory fictions are absolute. The next use of the word is for definition, where the word is used to define a legal term. Thirdly, there is the use of the word where it creates a presumption. It is in this latter context that I find that the word “deem” is used in Section 368 of the Accident Insurance Act 1998. [17] Professor Burrows notes that in some cases the presumption will be conclusive but that in others it creates no more than a rebuttable presumption of fact. The authority for this proposition is stated as being the decision of Tompkins J in International Bottling Company v Collector of Customs [1995] 2NZLR 579,584. [18] Professor Burrows also refers to the decision of Fawcett v Graham [1973] 1 NZLR 495 which related to the “deemed” service of notice provisions in the Noxious Weeds Act 1950. In that case the particular provision stated: “Where notice is sent by post in the manner prescribed by subsection 1 of this section it shall be “deemed” to be given at the time at which the letter would have been delivered in the ordinary course of post.” In considering the context of this provision the Court noted that another subsection gave a right of appeal against the notice so given which needed to be exercised within fourteen days of service. In considering the conclusiveness or otherwise of the deeming provision the Court stated as follows: 85.03 (pg) 7 “A persual of the subsection, and consideration of the consequences of service, not only in relation to the penal provisions of s 5 (7) but also in relation to the right of appeal given by s 5 (2) against a notice the requirements of which are considered to be unreasonable (which right of appeal must be exercised within 14 days after service) satisfy me that it is the intention of the Legislature that, so far as it is within the power of the sender, the notice should come into the hands of the addressee. In this sense the provisions of s 28 (1) are permissive only and equate other modes of service with personal service only where the facts proved are such that the proper inference is that the addressee actually received the notice or that the mode adopted is that most likely, in the circumstances to bring it to his attention. Thus, if it is left at his usual or last known place of abode, or is sent by registered post to that address and nothing further is known concerning it, the proper inference is that he received it, just as if it had been placed in his hands by a process server; and if he cannot be located the provision for substituted service by advertisement is a common expedient in law which is recognised as the best practicable means to bring it to his notice, either directly or by friends or acquaintances. But when the address of his home is known and the evidence establishes that the notice was not delivered to that address, the mere proof that the notice was sent “by post in a registered letter addressed to him” there is not proof of service of the notice unless it is also proved that the registered letter was actually delivered at that address. . . . I have considered whether s 28 (3) goes further and “deems” delivery to have been made even when the evidence proves the contrary. In my opinion, however, what is “deemed” by subs (3) is not the fact of delivery, but the time. . . . It would be unjust to hold, contrary to the facts, that the notice had been delivered when the consequence would be that, owing to the combined effect of s 28 (3) and s 5 (2), the addressee was deprived of his right of appeal.” [19] In the present case I find that the provision of Section 368 (5) raises an irrebuttable presumption as to time of delivery but a rebuttable presumption as to the fact of the delivery. [20] In the present case I am satisfied on the facts that, for reasons which are not known, the decision letter was not received by or delivered to the appellant at her residential address and therefore in terms of Section 136(2)(e) the appellant had not 85.03 (pg) 8 received notice of the decision in the ordinary course of post on or about 18 May 2001, but notice of that decision was provided to her by fax on or about 23 October 2002 and that she made application for review of the decision contained in that notice within the necessary three month period. [21] Accordingly then, I rule that the appellant still has a substantive right of review of the respondent’s decision of 18 May 2001 and it should now be the case that the respondent should set in train a review hearing of the substantive question as to whether or not the appellant is entitled to have the dental charges incurred by her with Dr Karen Harris included in the treatment costs for which the respondent is liable for payment. DATED at AUCKLAND this day of 2003 M J Beattie District Court Judge 85.03 (pg)