Skinner v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 72/2006 IN THE MATTER of the Injury Prevention, Rehabilitation & Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN JEAN SKINNER (AI 397/04) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent DIRECTION OF JUDGE M J BEATTIE [1] The appellant has lodged an appeal to this Court against a decision of a Review Officer given on 5 July 2004. [2] The essence of that Review Decision was that the Reviewer found that he had no jurisdiction to review the primary decision of the respondent by reason of the fact that the appellant’s application for review of that primary decision had been lodged outside the three-month time limit prescribed by Section 135 of the Act. [3] The substantive issue which the appellant was seeking to review was the respondent’s decision of 12 November 2002 declining the appellant’s application for weekly compensation. [4] It is the case that when the appellant lodged her application for review, through her advocate, Mr Thomas, on 28 April 2004, the respondent itself did not consider the late filing of the application for review and it did not consider whether there were any extenuating circumstances that may have affected the appellant’s ability to meet the time limit for the lodging of the application for review as contemplated in Section 135(3) of the Act. 2 [5] At the hearing of the review the appellant’s advocate did not address the issue of the late filing of the application for review and concentrated his submissions on the substantive issue relating to the decision to decline to grant weekly compensation. The Corporation, for its part, submitted that the Reviewer had no jurisdiction to consider the substantive question on the basis that the review was lodged out of time and that there were no extenuating circumstances for the late filing of that application for review. [6] Following the decision of this Court in the appeal of Knight (Decision 193/05) it has been determined as a matter of law that the respondent Corporation is required to make a primary decision regarding the late filing of the application for review, and of determining whether the appellant can make out a case of “extenuating circumstances” for the late filing of that application. [7] In view of the decision in Knight, it is the case that the present appeal, which at most could only consider the issue of extenuating circumstances and the jurisdiction of the Reviewer to consider the substantive issue, cannot do that as the correct procedure following the late lodging of the application for review has not been followed. [8] Accordingly, I direct that the appellant’s application for review of the respondent’s primary decision of 12 November 2002 be reconsidered by the respondent and that it make a primary decision as to whether or not the appellant can make out a case of extenuating circumstances within the meaning of Section 135(3) of the Act. [9] Before so considering the matter afresh, I direct that the respondent seek any further submissions or evidence from the appellant or her representative on any matters which may bear on the question of extenuating circumstances. [10] If the respondent does determine that the appellant has made out a case of “extenuating circumstances” then it would be the case that the substantive issue arising from the respondent’s primary decision of 12 November 2002 would then be considered by way of review in the usual manner. In the event that the respondent declines the appellant’s request for an extension of time, then that would be a decision which the appellant could, if she so elected, take on review in the usual way that reviews are initiated and concluded. 3 [11] Arising from my direction above, it is a necessary corollary that the present appeal lodged under AI 397/04 is dismissed. Such dismissal does not affect the appellant’s substantive rights and is purely for administrative efficiency. DATED at AUCKLAND this 30th day of March 2006 M J Beattie District Court Judge