Estate of Sydney v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON [2016] NZACC 279 ACR 197/15 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN ESTATE OF MURRAY SYDNEY Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: On the papers Judgment: 4 October 2016 ____________________________________________________________________ RESERVED JUDGMENT OF JUDGE A N MACLEAN ____________________________________________________________________ [1] On 7 June, following a case conference, I issued a Minute timetabling steps that were to be taken. [2] One of those steps, was for counsel for the respondent to file a memorandum addressing an issue, he had raised prior to the conference, that the appellant was in fact misconceived as being one in which the District Court has jurisdiction, and that instead it is a matter for the Appeal Authority. There were other directions, but they are not material save that the advocate for the appellant was to file any response to the jurisdiction memorandum and that I would then, by consent, decide that on the papers. [3] That minute was sent to the advocate on 13 June. The respondent duly filed and served a memorandum as to jurisdiction, and the Registry advised the advocate that in terms of my earlier minute, any further response needed to be filed by 13 July 2016. [4] On 2 August, the advocate sent a letter which I assume was copied to the respondent, outlining in some detail the appellant’s position regarding the calculations of compensation which underline the appeal, but made no other comment about the jurisdiction question. [5] On 22 September the Registry in an email to the advocate noting that no response to the jurisdiction aspect had been filed. [6] The advocate responded by email on 27 September: In response to the jurisdiction issue I would make the following comment. The issue is believed to be a simple one that the reviewer would not entertain and now complicated unnecessarily by ACC putting the client at a disadvantage, the attached explains our take on the matter. The “ attached”, is the letter of 2 August, I have previously referred to. [7] Rather than prolong the matter any further, I think it is reasonable for me to assume that there is no other comment that the appellant wants to make on the jurisdiction issue, and that it is appropriate for me to now deal with on the papers. [8] The simple answer is, that the carefully drafted memorandum of counsel for the respondent dated 22 June is clearly correct. The underlying issue is the level of earnings related compensation payable to the appellant as a dependent child of the late Murray Sydney. The respondent decision was made under s 65 of the Accident Compensation Act 1982. [9] Section 391 of the Act specifically deals with the present situation and preserves the review and appeal procedures under sections 101 and 107 of the 1982 Act [10] Those sections make it clear that the right of appeal from the review decision is with the Appeal Authority. [11] The appellant’s submissions do not challenge the respondent’s submissions as to jurisdiction but simply reiterate the calculation merits. That is a matter for the Appeal Authority, not this Court. [12] Accordingly this Court has no jurisdiction and the appeal is dismissed. [13] The appellant will need to take the matter up afresh with the Appeal Authority. There is no issue as to costs. an malea Judge A N Maclean District Court Judge ACR 197-15-Estate of Murray Sydney