Estate of Smith v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 66 195 ARE AT WELLINGTON DCA No. 147/94 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to Section 91 of the Act 47 94 0395 . BETWEEN THE ESTATE OF K.F, SMITH . .. .. APPELLANT AND THE ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION RESPONDENT ." Date of Hearing: 28 October 1994 Date of Decision: 16 June 195 Counsel: Mr S.D. Patel for Appellant A.D. Barnett for Respondent RESERVED DECISION OF JUDGE J.H. LOVELL-SMITH . . .. . ... . .- The issue in this appeal is the review decision declining cover in respect of the death of Mr K.F. Smith as the result of exposure to asbestosis in the course of his employment. 2. In 1959 and 1960 the late Mr Smith was exposed to asbestosis in his employment. He was diagnosed as having lung cancer in 1987. When he died in 1990 the cause of death was diagnosed as cancer. On 23 June 1993 Mrs Smith, on behalf of the estate of her late husband, lodged an application claiming that her husband had died as the result of his exposure to asbestosis in his employment. The Corporation's medical adviser, Dr Bremner, recommended on 8 November 1993 that Mr Smith's cause of death be accepted as exposure to asbestosis. The appellant wrote to Mrs Smith on 26 January 1994 as follows:- "In reference to your claim for compensation following your late husband's exposure to asbestosis. Unfortunately as Mr Smith's asbestosis exposure was in 1960, prior to ACC coming into force on 1 April 1974, your claim must regretfully be declined. This decision is made under s.135 of the Accident Rehabilitation and Compensation Insurance Act 1992 ..." The review decision dated 17 June 1994 declined cover, but relied on s.11 of the 1992 Act. Section 11 (1) states:- "Where any person suffers personal injury caused by gradual process, disease, or infection from exposure of that person before the 1st day of April 1994 arising out of and in the course of employment within the meaning of s.7 of this Act that ceased before that date, the person shall be entitled to cover under this 3. Act as if that personal injury had been suffered on or after the Ist day of July 1992 or such later date as is determined under s. 7(5) of this Act." The review was declined due to the enactment of s.8 of the Accident Rehabilitation and Compensation Insurance Amendment (No. 2) Act 1993 ("Amendment Act" 1993). Section 8 amends s. 11 as follows:- "(5) Subsection (1) of this section shall not apply where - (a) (b) The person who suffered the exposure died before the Ist day of July 1992. (3) This section shall be deemed to have come into force on the 1st day of July 1992." The Review Officer held that by virtue of s.8 "s.11 of the 1992 Act therefore cannot be access to admit his claim". The Review Officer referred to the respondent's reasons for declining the appellant's claim on 26 January 1994, and said:- "The Corporation refer in their decision letter to s.135 of the Act. However, this section, which refers to transitional claims, cannot apply in this case, as it refers to claimants who have had a valid claim under the old 1974 and 1984 Acts. Mr Smith's claim would have been excluded under these Acts, as his exposure to asbestos was prior to the inception of the 1972 Accident Compensation Act on 1 April 1994." 4. - - Mr Patel acknowledged that under s.11(1) of the Accident Rehabilitation and Compensation Insurance Act 1992 ("the Act") applies the appellent is now covered. Mr Patel accepts that s. 11 (5) inserted by s.8(2) of the Accident Rehabilitation and Compensation Amendment Act (No. 2) 1993 ("the Amending Act") excludes the application of s.11(1) to any person who died before 1 July 1992. The issue for determination in this appeal is whether, the original claim having been lodged prior to the enactment of the Amendment Act 1993 but determined after the assent, the appeal should be determined according to the law at the time when the claim was lodged or under the Amendment Act 1993. Mr Patel submitted that in the absence of transitional provisions for the completion of pending claims, the Amendment Act 1993 should be interpreted so as to allow such claims lodged prior to its enactment to be heard under the previous legislation. Maxwell on the Interpretation of Statutes (12th Edn) states at p.220:- "In general, when the substantive law was altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights." Mr Patel submitted that this is a rebuttable presumption. He referred to Statute Law in New Zealand (J.F. Burrows) at p.290:- 5. "So far as statutes effecting substantive rights are concerned, however the 'rule' is correct, if only for such statutes are not normally construed retrospectively in any event. However, it may be true that if a statute is one of those exceptional ones on which its true construction was intended to affect substantive rights retrospectively, there will sometimes be a further question as to whether that includes even substantive rights in respect of which proceedings have already been commenced. " At p.291 the author states:- "The question is purely one of construction, and in a number of cases the new provision has been held to apply to a proceeding pending when it came into force, and even to an appeal against the judgment delivered before the provision came into force." Mr Patel submitted that the Amendment Act 1993 did not apply to pending proceedings because the amendment affected substantive rights as opposed to regulating a procedure. He contended that the retrospective action of the statute has been more readily adopted in provisions which are purely procedural as opposed to those which affect matters of substance. Mr Patel submitted that the Amendment Act 1993 in this instance will impair existing rights and obligations if interpreted to retrospectively affect pending claims. In this case a claim was originally lodged prior to the Amendment Act coming into force and the original claim was then heard after the commencement of the Act. Mr Patel contended that had the claim been lodged on the same day, however, at a different Corporation Registry it is conceivable that the claim could have been heard prior to the commencement 6. of the Amendment Act 1993. It was his submission that Parliament could not have intended such unfairness. The Amendment Act 1993 contains no transitional provisions for the determination of claims lodged pending commencement of that legislation. Mr Patel submitted that s.20(g) can be applied as an aid against interpreting the Amendment Act 1993 as being applicable to claims filed but not lodged prior to its enactment and that the appellant's claim should have been determined under the legislation as if it existed at the time the claim was lodged. In the absence of a transitional section, s.22 of the Acts Interpretation Act states:- "Pending judicial proceedings not affected by expiration of Acts - the expiration of an Act shall not affect any judicial proceedings previously commenced under that Act, but all such proceedings may be continued and everything in relation thereto be done in all respects as if the Act continued in force." Mr Patel contended that in the absence of transitional provisions for the completion of pending claims, the Amendment Act 1993 should be interpreted so as to allow such claims lodged prior to its enactment to be heard under the previous legislation. Mr Barnett submitted that the appellant's argument that where there is a pending claim for cover at the time the amending Act is passed, an expressly retrospective Act does not affect that pending claim is wrong in law. Mr Barnett submits that the rule relating to pending proceedings has no 7. application where the Act is expressly retrospective. He referred to Statute Law in New Zealand (J.F. Burrows) at p.283, the author states:- "(a) Expressly retrospective. It is, of course, open to Parliament to make a statute retrospective in operation if it wishes to. Every year some such legislation is passed. Various forms of words can be used to accomplish. Sometimes it is provided in s.1 that 'this Act shall be deemed to have come into force on 1 January 1990', 1 January 1990 being a date earlier on which the Act received a Royal assent.." Mr Barnett goes further and says that the author does not go on to discuss the retrospective effect of such plain wording as "this Act shall be deemed to have come into force on 1 January 1990". He contended it is taken as read that these words give the Act retrospective effect. In his view the words of the Amending Act are equally plain. Furthermore, the appellant acknowledges at paragraph 4(b) of Mr Patel's submissions that "the amendment Act is retrospective in its application" and in Mr Barnett's view, this is the end of the matter. The passage from Statute Law in New Zealand at p.290 referred to by Mr Patel does address the issue of pending proceedings, and when read in isolation, might suggest retrospective legislation may not always affect, pending proceedings. Mr Barnett is concerned that the passage should be read in context because that is not the meaning. The passage referred to and quoted appears in section (c) of Chapter 18 which is headed "The Presumption Against Retrospectivity", and commences "Real difficulties can ensue when a statute is silent on whether it is retrospective or not ..." 8. - - In Mr Barnett's view, the passage cited by Mr Patel must be read in the context of a discussion of legislation which is silent or at least is not expressly retrospective and the rule relating to pending proceedings has no application where the Act is expressly retrospective (Statute Law in New Zealand Chapter 18). Mr Barnett further relied on the author's statement in the passage cited by the appellant:- "The question is purely one of construction." Mr Barnett further submitted this is clearly stated in Attorney-General y Vernazza (1960) AC 965 at p.978, where Lord Denning said:- "It is, of course, clear that in the ordinary way the Court of Appeal cannot take into account a statute which has been passed in the interval since the case was first decided in the first instance, because the rights of litigants are generally to be determined according to the law in force at the date of the earlier proceedings. ... But it is different when the statute is retrospective either because it contains clear words to that effect, or because it deals with matters of procedure only, for then Parliament has shown an intention that the Act should operate on pending proceedings, and the Court of Appeal are entitled to give effect to this retrospective intent as well as a Court of first instance. ..." And in Sharplin v Broadlands Finance Limited [1982] 2 NZLR 1 (CA), Somers J said at p.11:- 9 "Legislation enacted between trial and appeal will be applied if it is clearly retrospective, or if it extends to pending proceedings, or if it gives new remedies." In Sharplin it was held that where the Credit Contracts Act came into force after the judgment of the Court of first instance but before the appeal, the provisions of the Credit Contracts Act must apply on appeal, as the Act repealed all previous money lending legislation and provided "this Act shall apply in respect of every credit contract, whether made before or after the commencement of this Act." The Court of Appeal could not overcome the plain construction of the Credit Contracts Act, the introduction of which affected the rights of pending proceedings, indeed proceedings which had been heard and determined but which were under appeal. The wording of the Accident Rehabilitation and Compensation Insurance Amendment Act is even plainer, and can lend itself to no other construction. The law is deemed to have had effect from 1 July 1992. That is to say at the time the appellant filed an application for cover on 23 June 1993, the law was deemed to have been that which was provided for in the amending Act. In Re Universal Management Limited the intervening legislation, namely, the Companies Amendment Act 1980 (which affected rights and pending proceedings) was not expressed to be retrospective in its effect, thus the Court of Appeal had no difficulty in applying s.20(g) and s.20(e) of the Acts Interpretation Act 1924. The Court of Appeal expressly distinguished that case from Sharplin (supra) and McMullin J said:- 10. - - "Nor do I think that Mr Wilson's argument that the legislation is retrospective an operation can succeed. As the matter as put it Maxwell on the Interpretation of Statutes' (12th Ed., 1969 (p.216):- 'No rule of construction is more firmly established than this: that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment.' The present case is quite different from the statutory provision discussed in Sharplin v Broadlands Finance Limited (1982) 2 NZLR 1. In that case the statute under consideration, the Credit Contracts Act 1981 which repealed the Money Lenders Act 1908, was expressly made applicable to all contracts whether entered before or after the commencement of the Credit Contracts Act ..." The decision in Ewart v England is similar to the Universal Management Limited case in that the intervening legislation which repealed the earlier legislation is not expressed to be retrospective in effect, thus it was readily held pursuant to s.20(g) of the Acts Interpretation Act that the intervening Act did not operate retrospectively on proceedings which had been initiated prior to the intervening Act coming into force." Mr Barnett further contended for completeness that the words of s.20. of the Acts Interpretation Act 1924 make it clear that it does not operate to override an expressly retrospective provision. Section 20 begins:- "The provisions following shall have general application in respect of the repeal of Acts, except where the context manifests that a different construction is intended ..." 11. I agree with Mr Barnett that Mr Patel's submission that where there is a pending claim for cover at the time the amending Act is passed an expressly retrospective Act does not affect that pending claim is wrong in law. In my view, the wording of the Accident Rehabilitation and Compensation Insurance Amendment Act is plain and does not lend itself to any other construction. I agree with Mr Barnett's submission that the law is deemed to have had effect from 1 July 1992 and at the time the appellant filed an application for cover on 23 June 1993, the law was deemed to have been that which was provided for in the amending Act. I accept Mr Barnett's submission that the words of s.20 of the Acts Interpretation Act 1924 make it clear that it does not operate to override an expressly retrospective provision. In his further written submissions, Mr Patel requested that should it be held that the operation of s.11(5) of the Accident Rehabilitation and Compensation Insurance Act 1991 inserted by s.8(2) of the Accident Rehabilitation and Compensation Insurance Amendment (No. 2) Act operates retrospectively to deny claims filed but unheard at the passing of the Amendment Act, then the appellant's claim should be considered under the equity and good conscience provisions of the District Courts Act 1947. Section 59 of the District Courts Act 1947 states:- "Equity and good conscience - Where the amount claimed or the value of the property claimed or an issue does not exceed [$3,000], a Court may receive any such evidence as it thinks fit, whether the same be legal evidence or not and may give such judgment between the parties as it finds to stand with equity and good conscience." 12. Mr Patel requested that the amount of the appellant's claim up to the limit provided by s.59 of the District Courts Act be considered. I agree, however, with Mr Barnett, s.59 of the District Courts Act has no application to this appeal. Section 59 applies "Where the amount claimed or the value of the property claimed or in issue does not exceed $3,000 ...". This appeal is against the Review Officer's decision declining the appellant's cover under the 1992 Act. It is correct that if the appellant is entitled to cover, then it may have the right to certain monetary entitlements provided for in the Act, but such entitlements are not in issue and would have to be the subject of a separate decision by the Corporation. The appeal is dismissed. Jane H. Lovell-Smith) District Court Judge