Gregan v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 147 /98 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 1 of the Act BETWEEN GRAHAM JAMES GREGAN DCA 363/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE M J BEATTIE ON THE PAPERS The issue in this appeal is whether the Corporation was correct to rule that it could not accept the appellant's application for review of a decision made by the Corporation lodged outside the three month period stipulated in section 89(5) of the Act. 2 BACKGROUND FACTS The appellant suffered severe injuries in a motor accident on the 22nd November 1993. He became entitled to receive weekly compensation. In a letter dated 3rd of January 1996 (clearly intended to be 3rd January 1997) the Corporation wrote to the appellant and advised him that his weekly compensation ceased on 28 December 1996 as it had been determined that the appellant had not lost income as a consequence of his incapacity. This letter in fact confirmed a telephone conversation which the appellant had with his case manager on 31st December 1996. The letter also indicated that it was believed that a large overpayment had occurred and that the appellant would be contacted further once the amount of that overpayment had been calculated. The letter did not contain the usual advice of review rights. By letter dated 21st March 1997 the Corporation notified the appellant that the amount of the overpayment of weekly compensation had been calculated as being $42,593 and it advised that this sum constituted a debt in accordance with section 77 of the Act. That letter did advise of a right of review in what might be described as the standard form. The file discloses that by letter dated 26th of March 1997 the Corporation gave full particulars of how that debt was calculated to the appellant's accountant Mr Pennell. By letter dated 13th June 1997 the appellant's case manager wrote to Mr Pennell noting that no reply had been received to the Corporation's letters of 21st and 26th March 1997 nor was there any record of any repayment of the debt. Mr Pennell was asked to advise what steps were being taken in that regard. 3 By letter dated 4th July 1997 Mr Pennell responded to that letter of 30th June stating: "Further to your letter of 13th June 1997 we wish to advise that our client has applied for a review of this case and a waiting list from your department. With regard to payment you will note our client has ceased receiving any compensation. We would hope that after an assessment of this year any refund for the current year can be applied against debt." On the 8th July 1997 the appellant's case manager spoke to Mr Pennell advising that no application for review had been received by the Corporation. On the 11th July 1997 an application for review of the decision of 21 March 1997 was received by fax from the appellant's solicitor Mr Brdanovic of Edmonds Judd Solicitors Te Awamutu. The letter accompanying that application stated: "We confirm Mr Pennell's telephoned advice to you of even date that we were under the impression that a signed application for review had already been filed with your office. We understand this may not be the case and accordingly enclose a further signed application for review for the abovenamed person." By letter dated 14th July 1997 the Corporation advised the appellant's solicitors that it could not accept the application for review as it had not been filed within the statutory time limit prescribed under the Act. It is in effect that decision which is now the subject of the appeal to this Court, the review decision having confirmed the Corporation's decision that it was correct not to accept the application for review of the primary decision. Section 89(5) of the Act states: 4 "89. Application for review (5) An application pursuant to this section (a) may be made in the prescribed form within three months after the date on which the claimant is entitled to treat the claim in respect of which the review is sought as having been rejected under section 66 of this Act; and (b) in any other case an application in the prescribed form may be made within three months after the date on which notice in writing has been given of the decision in respect of which the review is sought --- and each such application shall state briefly the grounds on which the application is made." From the review hearing there is no dispute that the sequence of events is as set out above and it is recorded by the Review Officer that it was accepted that the delay in filing the application for review had not been contributed to by the Corporation. It seems as though the failure to file the application was due to a series of misunderstandings between Mr Gregan, his accountant Mr Pennell and his solicitor. In his submissions to this Court Mr Brdanovic has referred the Court to a decision of the High Court in Mcdougall v Accident Compensation Commission (1983) 4 NZLR 85 where the Court laid down matters which it considered were relevant to decide whether to accept an application for appeal out of time. It was further submitted that the principles in Mcdougall had been further accepted by this Court in the decision of ARCIC v Tarr Decision 34/94. Those four factors are stated to be: 1. Length of delay beyond the time allowed. 2. The reasons for the delay. 5 3. The strength or merits of the appellant's case. 4. The prejudice to the respondent if the extension is granted. Counsel for the appellant has thereupon addressed those four factors and has made submissions as to why he contends they can all be satisfied favourably to the appellant. Counsel for the respondent submits that the legal position is quite clear and that there is no power to extend the period for making application for review beyond the three month period stipulated in section 89(5) of the Act. Counsel refers to the fact that this Court on several occasions has upheld that statement of principle. The issue is whether the Corporation correctly refused to consider the appellant's request for review of its 21 March decision. Thus it is the provisions of section 89 of the Act which are for consideration and not the provisions of section 91 which relate to rights of appeal from a decision given on review. The submissions which Mr Brdanovic has made citing McDougall would only be relevant if this Court were considering whether the notice of appeal under section 91 of the Act had been filed beyond the 28 day period stipulated under that section. That section grants to this Court a discretion to grant leave to extend the time beyond the strict period stipulated in that section. This Court has identified on several previous occasions that no such discretion is given in section 89(5). It is to be noted that the corresponding provision under the 1982 Act - section 101(2) did grant the Corporation a discretion to extend time, as did the provision relating to appeal to the Appeal Authority. 6 Under the 1992 Act that state of affairs has been changed by removing the discretion for late application for review, but continuing a discretion to this Court in respect of an appeal out of time. Furthermore the provisions of section 89 are specific in that notice in writing is required and therefore any oral discussion that may have occurred between any person representing the appellant and the Corporation as to an intention to seek review does not comply with that section and nothing short of a request in writing, albeit informal and not necessarily on the Corporation's form, will suffice. Had this been a request to this Court to consider granting leave to appeal out of time that request would probably have been granted on the facts as disclosed in counsel's submissions. However this Court is not considering the matter at appeal stage but at review and as already noted, there is no discretion granted. As it is not in contention that the written application for review was filed outside the three month period, the Corporation was correct in advising that it could not consider the request for review. This appeal is therefore dismissed. DATED at WELLINGTON this day of July 1998 M J Beattie District Court Judge Gregan.doc KD