Hapuku Estate of v Accident Compensation Corporation

IN THE DISTRICT COURT AT AUCKLAND [2015] NZACC 152 ACR406/12 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT ON A QUESTION OF LAW UNDER S 162 OF THE ACT BETWEEN THE ESTATE OF MICHAEL HAPUKU Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: On the Papers at Auckland Judgment: 18 June 2015 DECISION OF JUDGE G M HARRISON The Appeal [1] The applicant, (hereafter "the estate") appeals against the reserved decision of Judge M J Beattie of 25 November 2013. [2] The application for leave stated simply that the appellant was dissatisfied with the decision as being wrong in law. Appeals to the High Court pursuant to s162 of the Act, can only be on a defined question of law, and no question of law was specified as the basis of the application. 2 [3] In submissions of 5 November 2014 the following errors of law are alleged to have been made. (i) By failing to make any calculation of the actual earnings received by Mr Hapuku during incapacity. ii) By treating all the years in the same way, and failing to analyse the evidence relating each year separately in accordance with the legislation. (ifi) By failing to address the statutory provisions and consequently accepting incorrect calculations of the sum due. (iv) By incorrectly interpreting the statutory provisions applicable to calculation the sum due. (v) By apparently rejecting the evidence presented by the appellant without a reasoned basis. [4] Counsel for the Corporation in turn have filed submissions dated 4 February 2015 responding to these alleged questions of law, to which I shall return. History [5] The late Mr Hapuku had an accepted claim with ACC for occupational asthma. He was incapacitated from his employment as a result of the covered injury, and the Corporation paid him weekly compensation commencing in 1997. [6] In 1998 and 2001 Mr Hapuku derived income from companies which he did not declare to the Corporation. In September 2003, the Corporation determined that there had been an overpayment of $126,877.94. He was declared bankrupt in 2005. In 2007, he was prosecuted for fraud and admitted 15 charges of using a document to receive payments he was not entitled to between 1999 and 2002. He was sentenced to 2 years and 3 months in jail. 7] Mr Hapuku was discharged from bankruptcy in September 2008 and died suddenly in January 2010. 3 [8] A number of Corporation calculations and reviews of its decisions followed. On 2 March 2012 the Corporation completed a further review and calculated arrears at $75,736.31. That amount has been paid to the estate. The estate sought a review of that decision which was determined by a decision dated 12 June 2002 by J G Greene. It was this decision that the estate appealed to the District Court. [9] Judge Beattie therefore had before him the calculation notified in March 2012 and the decision of the reviewer where those calculations were reassessed and the application for review was declined. [10] The Corporation's response as to the first alleged error that Judge Beattie failed to make any calculation of actual earnings, is that it was impossible for him to do so because the deceased had not supplied income tax returns for some of the years in question and there was a paucity of evidence from which any calculation of actual earnings could be made. That brought clause 50 of schedule 1 to the Act into consideration which permits an estimation of earnings that cannot be ascertained. Both the Corporation and the reviewer had undertaken that exercise and in [18] of his decision, the Judge said - "and I find that there is no evidence to establish that that determination is not correct, ..." [11] With regard to the second ground of appeal, the respondent points out that the Judge did not conflate the various years in question in his decision but referred to them on a year by year basis which is evident from his decision. See paragraph [7], [9] - [12] and [15] - [16]. [12] The next ground of appeal is that the Judge failed to address statutory provisions and consequently accepted incorrect calculations of the sum due. But he did refer to clause 50 of schedule 1 and also s 14 and s 15 of the Act. The sections refer to earnings as a self employed person, and as a shareholder-employee and of course clause 50 of schedule 1 provides the power to estimate earnings that cannot be ascertained. The applicant does not refer to relevant sections of the Act which were not taken into account. [13] It is then alleged that the Judge incorrectly interpreted statutory provisions applicable to calculating the sum due. In this regard the applicant submitted that losses should have been taken into account in assessing earnings and that the Judge determined that losses could not be taken into account. The Judge said at [15] - "I find it to be the case that there is no basis for any assessment of situations involving losses which may be associated with the business in which he was engaged but which did not affect the fact of the income that was received". That is clearly an accurate statement. No doubt if Mr Hapuku had been engaged in a business which had suffered losses and he made no income for that year, then it would be appropriate for the Corporation to determine a nil income. But that was not the situation in this case. [14] The final ground of appeal is that the Judge rejected evidence presented by the appellant without a reasonable basis. It is clear that that was not so from a reading of the decision. The applicant as appellant before the Judge had the burden of establishing that the Corporations calculation as upheld by the reviewer was wrong and failed to do so. Conclusion [15] In my view no question of law for the determination of the High Court has been identified. As was said by the Court of Appeal in Northern Cooperative Dairy Co Limited v Rapana [1999] 1 ERNZ 361, 363 - care must be taken to avoid allowing issues of fact to be dressed up as questions of law; appeals on the former being proscribed. [16] In my view the applicants position on this application is as described by the Supreme Court in Bryson v Three Foot Six Limited [2005] NZSC 34. At [25] the Court said - " an appeal cannot, however, be said to be on a question of law where the fact finding court has merely applied law which it has correctly understood to the facts of an individual case. It is for the court to weight the relevant facts in the light of the applicable law. Provided that the court has not overlooked 5 any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact finding court, unless it is clearly unsupportable". [17] That is not the case here. The issue before the Judge was essentially one of fact, namely, whether the calculation of earnings by the Corporation, upheld by the reviewer could be demonstrated to be wrong. That is an exercise of fact involving the necessity to make estimates brought about by the failure of the deceased to file requisite tax returns and otherwise keep proper financial records. [18] The application for leave to appeal to the High Court is accordingly dismissed [19] There is no order as to costs. District Court Judge