Bidlake v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON DECISION NO. 250/ 2057 UNDER The Injury Prevention, Rehabilitation and Compensation Act 2001 IN THE MATTER OF an appeal pursuant to section 149 of the Act (Appeal No. AI 274/05) BETWEEN GRAEME ALLAN BIDLAKE Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Appearances: IS Young-Gough for appellant A D Barnett for respondent Judgment: 16 November 2007 DECISION OF JUDGE D A ONGLEY ON APPLICATION FOR REHEARING OF APPEAL [1] The appellant has now obtained leave to appeal to the High Court from a judgment delivered on 1 1 April 2006, Bidlake (90/06), dismissing an appeal brought under s149 of the Act against a reviewer's decision confirming the respondent's decision that the appellant was vocationally independent. [2] The appellant suffered a foot fracture that prevented him from continuing his work as a plumber. In the course of vocational rehabilitation he tried to regain capacity for his former work but could not do so. Arthrodesis of the subtalar joint was considered but was not recommended. In the appeal, I found that the appellant did not seek a surgical solution to improve his capacity to work, and that the medical evidence did not stipulate surgery as a need for rehabilitation for full time work. GRAEME ALLAN BIDLAKE V ACCIDENT COMPENSATION CORPORATION DC WN DECISION NO. [16 November 2007] Consequently, I found that the evidence did not show that surgery should have been a component of the appellant's rehabilitation plan. [3] I found that the Corporation failed to notify the appellant of his review rights at the time of an individual rehabilitation plan (IRP) of 26 April 2002 which initiated the purpose of vocational rehabilitation for regaining ability to work, which meant for vocational independence. The purpose for vocational rehabilitation had previously been to return him to his pre-injury occupation. I found that the change was significant and accepted the appellant's argument that, if the former purpose of maintaining employment had continued, there would have been no requirement to embark on an initial occupational assessment. I held that, when considering the effect of non-compliance with statutory procedure, the context of the defect must be considered to determine its effect on the integrity of the procedure as a whole. [4] I have given leave to appeal to the High Court in order to address questions of law concerning the circumstances that the Court should take into account in deciding whether the defect affected the integrity of the process, and whether the principles of natural justice require a claimant to be given a right of audience after the assessments are done and before the Corporation makes its determination. [5] The appellant also applies for a rehearing of the appeal in this Court. There is a line of authority to the effect that there is no jurisdiction for the District Court to grant a rehearing of a case heard in its appellate jurisdiction. His Honour Judge Cadenhead explained the reasons for that in Howard (241/05), a judgment that has been followed in such cases as McNicol (253/05), Laing (266/05), Rand-Wildbore (272/05) and in other appeals. Mr Young-Gough submitted that rules 493 and 494 of the District Court Rules should prevail. That argument was considered and rejected in Howard and no further argument was provided in this appeal to enable further consideration of the point. [6] In any case, rule 493 of the District Court Rules limits the ground for rehearing to circumstances in which the Court finds that there has been a miscarriage of justice that justifies a rehearing, including cases in which: (a) The judgment has been obtained by any unfair or improper practice of the successful party to the prejudice of the opposite party; or (b) Material evidence has been discovered since the hearing which could not reasonably have been foreseen or known before the hearing; or (c) Any witness has been guilty of such misconduct as to effect the result of the hearing [7] The application for rehearing asks for the appellant's whole argument on those matters to be reconsidered. It is not based on new evidence or statutory or other binding authority that was not available at the time of the hearing. In essence, it asks for this Court to recall its decision and begin again. The principles applicable to recall of judgment were stated by Wild CJ in Horowhenua County v Nash (No 2) [1968] NZLR 632, 633, namely that there are but three categories of cases in which judgment may be recalled, these being; (a) Where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance of high authority; b) Where counsel have failed to direct the Court's attention to a legislative provision or authoritative decision of plain relevance; and (c) Where for some other very special reason justice requires that the judgment be recalled. [8] None of those considerations applies here. There is a further consideration that once leave has been granted to appeal to the High Court, it would not be appropriate for this Court to reconsider its own decision. [9] For all of those reasons the application for rehearing is dismissed. Judge D A Ongley District Court Judge