Henson v Accident Compensation Corporation (Validity of Review Application)

IN THE DISTRICT COURT AT HAMILTON [2017] NZACC 98 ACR 387/15 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN JULIAN HENSON Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 23 March 2017 and 2 June 2017 Appearances: The appellant in person on 23 March 2017 but no appearance by or on behalf of the appellant on 2 June 2017 P A McBride for the respondent Judgment: 7 September 2017 RESERVED JUDGMENT OF JUDGE L G POWELL Validity of Review Application Section 143(1) Accident Compensation Act 2001 [1] The appellant, Julian Henson, has appealed against a decision of Reviewer Bernard Lock dated 25 November 2015 which dismissed 44 applications for review filed by Mr Henson, although also confirming that two other applications for review' could proceed to a hearing ("the valid reviews"). [2] In relation to the 44 applications for review dismissed by Reviewer Lock: [a] Four were dismissed on the basis that they sought to enforce payment of backdated weekly compensation owing to Mr Henson which Reviews 4309585 and 4277086. N Reviews 4312086, 4348100, 4348098 and 4336597. Reviewer Lock concluded was outside his jurisdiction ("the enforcement reviews"); and [b] With the remaining 40 applications for review' Reviewer Lock was unable to identify the decision of the Corporation to which the review related and as a result the reviews were dismissed "due to a lack of particularity and non compliance with s 135 [of the Accident Compensation Act 2001]" ("the non-compliance reviews"). [3] After Mr Henson's appeal was filed on 18 December 2015 he was directed to file submissions in support of the appeal by 11 July 2016. To assist Mr Henson to comply with the directions a number of case management teleconferences were convened. At those conferences it was explained to Mr Henson that the hearing of the appeal would focus on whether Reviewer Lock was correct to decline jurisdiction and/or dismiss the review applications and the appeal would not be able to consider any issues with the procedure followed at review. At the same time Mr Henson was invited to consider whether he wished to withdraw his appeal in respect of the valid reviews, and on that latter point, although Mr Henson never committed himself in writing, I am satisfied that he confirmed relief that he withdrew his appeal in relation to those two review applications at the teleconference on 2 May 2016. [4] As the case management process began Mr Henson indicated he was in some difficulty in reconciling the review numbers referred to by Reviewer Lock in his decision, noting he had not retained copies of the applications for review that he had filed. In consequence the Corporation was directed to file an initial bundle of documents enclosing copies of all of Mr Henson's applications for review, together with a copy of the transcript of the review hearing and a copy of Reviewer Lock's review decision. This bundle was filed on 17 March 2016 and a copy provided to Mr Henson. Reviews 430985, 4309089, 4309090, 4309086, 4308587, 4309092, 4311586, 4309087, 4309091, 4294095, 4286087, 4277087, 4277088, 4277090, 4277085, 4276091, 4348099, 4347588, 4349085, 4367586, 4367588, 4368087, 4367587, 4368088, 4336595, 4336596, 4277097, 4277586, 4276594, 4286088, 4309589, 4309591, 4312087, 4311587, 4340585, 4348101, 3446, 3447, 3478 and 3538. [5] Through the ongoing case management process Mr Henson was eventually given extensions of time through to 27 October 2016 for the filing of his submissions and, after the filing of submissions on behalf of the Corporation, the appeal was set down for hearing on 23 March 2017. [6] In his submissions filed with the Court Mr Henson focused on a range of procedural matters at review, including that he was given inadequate notice of the review hearing, but Mr Henson did not address the underlying issues identified by Reviewer Lock as the basis for dismissing Mr Henson's applications for review. [7] In the course of the hearing on 23 March 2017 it was again pointed out to Mr Henson that this Court could not deal with procedural issues and that I wanted to discuss the basis of each of the review applications with Mr Henson. Mr Henson proceeded to argue that the reviews dismissed primarily related either to complaints he had made to the Corporation under the Code of ACC Claimant Rights,' or were reviews under s 134(1)(b) of the Act and related to claims for entitlements made by Mr Henson for which no decision had been issued by the Corporation. As such contentions were not apparent from the review applications themselves and as there was no evidence or submissions to support such an interpretation of those applications, the hearing of the appeal was unable to be completed on 23 March 2017. [8] Instead the appeal was adjourned until 2 June 2017 to give Mr Henson the opportunity to flesh out his claims about the nature of the review applications in line with his oral submissions. The basis for the adjournment was recorded in a Minute dictated in Court at the end of the hearing on 23 March 2017 and which provided: [3] When the appeals came before me in early 2016 the point was made by the Court that the issue was whether Reviewer Lock was correct rather than any procedural deficiencies in the review hearing. In various directions conferences I attempted to emphasise this to Mr Henson but for whatever reason Mr Henson does not appear to have appreciated this until the hearing unfolded today. [4] In consequence as we have gone through the different review applications to attempt to understand the basis of them, Mr Henson has Part 3 Accident Compensation Act 2001 provided various explanations as to the reason the various review applications were made and referred to documents underpinning those applications. Such an explanation is not at all apparent from the documents themselves, and if correct may cast a different light on the conclusions reached by Reviewer Lock. [5] In the circumstances and taking into account also that Mr Henson is required to take medication this afternoon that means the hearing cannot continue beyond the lunch adjournment, I am reluctantly prepared to allow for a further adjournment to give Mr Henson the chance to put the various supporting documents before the Court together with a set of supplementary submissions setting out in writing his explanations for the different review applications. [6] As I discussed with Mr Henson it is apparent having discussed the first 0 or so review applications that the different reviews fall into clearly identifiable groups and it is envisaged that the supplementary submissions that Mr Henson has agreed to file will deal with the different review applications in these different groups. 7] Broadly speaking this will require Mr Henson to address those reviews that appear to deal with issues relating to the Code of ACC Claimants Rights as one category of review applications and those applications that relate to specific applications for entitlements made by Mr Henson which Mr Henson says have not been determined by the Corporation. The supplementary submissions are to cross reference the particular documents that are relied upon in support of each of the different review applications. [8] Once the supplementary submissions and additional documents have been filed by Mr Henson, Mr McBride on behalf of the respondent will have the opportunity to respond following which we will resume the hearing in order to determine the appeal. [9] Mr Henson was accordingly given until 24 April 2017 to file his supplementary submissions and any additional documents relied upon. The final paragraph of the minute then noted: [10] Just to be clear this is a last chance for Mr Henson to put the relevant information before the Court. There will be no extension of time for filing and if the relevant documents are not filed by 24 April 2017 they will not be considered at the resumed hearing. [10] In the event no further submissions or evidence was filed by Mr Henson, nor did he attend the resumed hearing on 2 June 2017. No explanation has been provided, then or subsequently, with regard to Mr Henson's non attendance at the resumed appeal hearing and the hearing proceeded in order to hear submissions from the Corporation. Discussion and Analysis [11] As noted above the focus of the submissions filed by Mr Henson was on the procedure at review. As explained to Mr Henson throughout the case management process and at the beginning of the appeal hearing itself such issues can have no bearing on the outcome of the present appeal. The reason is that the legislation is clear an appeal is by way of rehearing. This means I am required to consider the substantive issues afresh on the basis of the evidence presented at review and any other evidence subsequently submitted in the course of hearing this appeal. As a result the approach taken by the reviewer at the hearing of the review is not relevant to my consideration of the appeal. [12] I turn now to whether any of the review applications within the enforcement reviews or the non-compliance reviews filed gave rise to any substantive issues that should have proceeded to a full hearing or whether Reviewer Lock's decision was correct. As Mr McBride submitted, the review jurisdiction is entirely statutory and requires consideration of ss 134 and 135 of the Act. Section 134(1) in particular restricts the ability of a claimant like Mr Henson, to apply for a review other than in relation to three specific matters. Specifically s 134(1) provides: 134 Who may apply for review (1) A claimant may apply to the Corporation for a review of- a) any of its decisions on the claim: any delay in processing the claim for entitlement that the claimant believes is an unreasonable de ( C) any of its decisions under the Code on a complaint by the claimant. [13] Section 135 in turn sets out the content for a valid review application brought in respect of one of the three categories in s134(1). Of relevance to the present appeal are the mandatory requirements contained in s 135(2)(c) and (d) which require the claimant seeking the review to "identify the decision or decisions in respect of which [the review] is made" and "to state the grounds on which [the review] is made". [14] Together, ss 134(1) and 135(2)(c) and (d) require a claimant to show what category of review is being sought with reasonable particularity. Quite clearly unless s 135(2)(c) is complied with it will be impossible to tell if an application for review relates to $134(1)(a) or (c), and likewise compliance with s 135(2)(d) is essential if the review is brought under $134(1)(b). As a result a mere complaint by a claimant against the Corporation cannot constitute a valid review. [15] Against this background the content of the applications for review filed by Mr Henson can be summarised as follows: Review Review Description/Issue as Relief Sought Application Application detailed on Review Number Date Application Enforcement Reviews 4312086 10.09.2015 "ACC have refused "ACC to pay weekly to pay weekly compensation plus compensation. . interest and costs/relevant ACC have ignored ACC staff to be sacked" my repeated requests for weekly compensation .. . ACC have failed to acknowledge or respond to my many, many letters complaints, and review requests.' 4336597 13.09.2015 ACC have refused to Not apparent pay weekly compensation (pages 1 & 3 only, as filed 4348098 01.10.2015 ACC have failed to Not apparent pay weekly compensation (pages 1 & 3 only, as filed) 4348100 01.10.2015 'ACC have failed to "Errant staff pay weekly comp.. . sacked/apology/assurance ACC have of no recurrence/costs acknowledged and expenses liability - ACC are required to pay, breach of code, claimants rights, ACC legislation, code of conduct for ACC staff" Non-compliance reviews 3446 14.08.2015 ACC have failed to ACC staff to be provide an sacked/matter invoice/send a debt remedied/ACC to collection apologise and pay costs letter/routine the lie, mislead and deceive. 3447 14.08.2015 "Lachlan from debt "Lachlan sacked"/ACC collection used my to apologise and put first name during a system in place to resolve telephone call despite this ongoing a review decision. problem/ACC to pay costs 3478 21.08.2015 "ACC have sent "ACC to provide an threatening letters. . . invoice"/ACC to also sent to incorrect apologise and pay costs name". 3538 21.09.2015 Not identified Not apparent page 2 of application missing) 4276091 14.08.2015 "Failure to remove D "ACC to sack O'Reilly"/ O'Reilly as Case ACC to apologise and Manager/no response pay costs to my calls and correspondence". 4277085 14.08.2015 "ACC have failed to "Sack O'Reilly" ACC to comply with apologise and pay costs communications protocol in place by ringing me by telephone, and by texting me". 4277086 14.08.2015 "No response, no "ACC staff to be correspondence, only sacked"/ ACC to lies, deceptions and apologise and pay costs dishonesty from ACC staff 4277087 14.08.2015 "ACC have refused Nil sought to advise of entitlements... Previous case manager David Riley lied to me, was deceptive, misleading and dishonest" 4277088 14.08.2015 "ACC refused or 'ACC to sack errant neglected to send a staff/ACC to comply copy of my file". with Privacy Act"/ ACC to apologise and pay costs 4277090 14.08.2015 "ACC ignore "ACC staff to be correspondence". sacked"/ ACC to apologise and pay costs 4277097 14.08.2015 "ACC agreed to 'ACC to have mediate the problem mediation"/ ACC to surrounding the apologise and pay costs dishonesty of ACC staff/DRSL/FairWay staff; failure of ACC to investigate complaints; failure of ACC to comply with review decisions". 4277586 14.08.2015 'ACC have failed to "ACC staff to be pay compensation; sacked; ACC to remedy"/ ACC have lied to me; ACC to apologise and ACC have been pay costs deceptive' 4276594 14.08.2015 "ACC have refused "ACC staff to be to acknowledge or sacked/ACC to remedy"/ investigate ACC to apologise and complaints". pay costs 4286088 21.08.2015 "ACC complaints "ACC complaints staff to staff have ignored be sacked"/"ACC staff to correspondence for comply with code and complaints". legislation /ACC to apologise 4286087 21.08.2015 ACC review staff "Sack ACC review have failed to set staff'/ACC to comply down hearings for with code and review applications legislation"/ACC to in breach of code and apologise and pay costs legislation. 4294095 21.08.2015 "Review of decision "O'Reilly to be to retain D O'Reilly sacked/ACC to change as case manager. case manager/ACC to ave ignored apologise" my request to change my dishonest, incompetent, rude and offensive case manager" 4308587 07.09.2015 ACC have breached 'Errant ACC staff be privacy by providing sacked/ACC to comply information to third with legislation/ACC be parties without honest/ACC to consent. "ACC staff apologise" have lied to me. .. mislead me. .. failed to answer correspondence... Failed to organise reviews " 4309085 07.09.2015 "ACC staff lie, cheat "Errant ACC staff be and deceive me as sacked/ACC to comply regards my claim' with legislation/ACC be "ACC staff have lied honest/ACC to to me. . . mislead apologise" me... failed to answer correspondence. . . Failed to organise reviews" 4309086 07.09.2015 ACC refuse to 'Errant ACC staff be acknowledge review sacked/ACC to comply applications. "ACC with legislation/ACC be staff have lied to honest/ACC to me. . . mislead apologise" me. .. failed to answer correspondence. .. Failed to organise reviews" Duplicate filed on 20 October 2015] 4309087 07.09.2015 ACC refuse to "Errant ACC staff be provide review sacked/ACC to comply decisions. "ACC staff| with legislation/ACC be have lied to honest/ACC to me. . .mislead apologise" me. .. failed to answer correspondence. . Failed to organise reviews" 4309089 07.09.2015 "ACC have withheld "Errant ACC staff be my file and ignored sacked/ACC to comply my privacy request". with legislation/ACC be "ACC staff have lied honest/ACC to to me. ..mislead apologise" me. . . failed to answer correspondence. .. Failed to organise reviews" 4309090 07.09.2015 ACC continually "Errant ACC staff be breach ACC Code of sacked/ACC to comply Claimants' Rights. with legislation/ACC be "ACC staff have lied honest/ACC to to me. . . mislead apologise" me. .. failed to answer correspondence.. . Failed to organise reviews" 4309091 07.09.2015 ACC refuse to pay "Errant ACC staff be travelling costs. sacked/ACC to comply "ACC staff have lied with legislation/ACC be to me. . .mislead honest/ACC to me. .. failed to answer apologise" correspondence. . Failed to organise reviews" 4309092 07.09.2015 ACC have refused to "Errant ACC staff be pay review costs. sacked/ACC to comply "ACC staff have lied with legislation/ACC be to me. . . mislead honest/ACC to me. .. failed to answer apologise" correspondence. .. Failed to organise reviews" 4309585 07.09.2015 "ACC refuse to issue "Errant ACC staff be decisions". "ACC sacked/ACC to comply staff have lied to with legislation/ACC be me. .. mislead honest/ACC to me. .. failed to answer apologise" correspondence. .. Failed to organise reviews' 4309589 7.09.2015 "ACC have refused "Errant ACC staff be to acknowledge sacked/ACC to comply complaints". "ACC with legislation/ACC be staff have lied to honest/ACC to me. ..mislead apologise" me. .. failed to answer correspondence... Failed to organise reviews" 4309591 7.09.2015 "ACC have refused "Errant ACC staff be to investigate sacked/ACC to comply complaints". "ACC with legislation/ACC be staff have lied to honest/ACC to me. . .mislead apologise" me. .. failed to answer correspondence. . . Failed to organise reviews" 4311586 10.09.2015 "ACC staff have e- "Riley - ex case manager texted me in breach to be sacked/ACC to of communication compensate me for protocol" costs/ACC to comply with protocol" 4312087 10.09.2015 "ACC refuse to "Relevant ACC staff to acknowledge or be sacked/responses to be respond to made as required by ACC complaints made on code and legislation/costs ACC 70915. . . ACC and expenses are required by code reimbursed" and legislation to acknowledge and respond to all complaints" 4311587 20.09.2015 "ACC have refused Page missing. or neglected to respond to correspondence and complaints... ACC have simply ignored all my complaints and review requests". 4336595 21.09.2015 ACC have provided Not apparent my details to a third party without consent. (pages 1 & 3 only, as filed 4336596 21.09.2015 "ACC continue to "Errant staff sacked/ACC bridge a review to apologise/ACC to pay decision by using my costs/ACC to have first name" systems in place to avoid recurrence.' [Duplicate filed] 4340585 21.09.2015 "ACC have failed to "Relevant staff to be acknowledge sacked/apology in complaints and writing/explanation as to reviews . .. legislation why no response' obligation to acknowledge and respond to all complaints and reviews ". 4347588 01.10.2015 "ACC have failed to Not apparent pay costs". (pages 1 & 3 only, as filed) 4348099 01.10.2015 "ACC have failed to Not apparent respond to review requests". (pages 1 & 3 only, as filed) 4348101 01.10.2015 "ACC have refused Not apparent to acknowledge complaints letters" (pages 1 & 3 only, as filed) 4349085 01.10.2015 "ACC has breached Not apparent Code of Rights". (pages 1 & 3 only, as filed) 4367586 13.10.2015 "The CEO Scott "Sack Pickering Pickering ignores /processes to be put in correspondence... place to avoid further The CEO has illegal acts obligations under /apology/costs" ACC legislation, code of claimants rights, and ACC code of conduct' 4367587 13.10.2015 "ACC employee, "Sack Aland/put Dave Aland, processes in place to Ministers Office was avoid further illegal acts/ rude and apology/costs" patronising". 4367588 13.10.2015 "The decision by "Sack review staff/ ACC reviews not to systems in place to avoid allow reviews" further illegal acts/apology/costs" 4368087 13.10.2015 "ACC staff member, Page missing Paul Holmes, ignores correspondence". 4368088 13.10.2015 "My case manager "Sack case manager ignores process to be put in correspondence and place to avoid further messages" illegal acts/ apology/costs" [16] Looking at the table and the applications themselves, it is apparent that in respect of both the enforcement reviews and the non compliance reviews Mr Henson's applications for review failed to comply with the most basic requirements of ss 134 and 135 set out above. In particular: [a] No specific decisions of the Corporation have been identified in respect of any application (s 134(1)(a)); and/or [b] No specific outstanding claim for entitlements has been identified by Mr Henson in any application (s 134(1)(b)); and/or [c] No particular decision by the Corporation on any complaint made by Mr Henson under the Code of ACC Claimants Rights has been identified (s 134(1)(c)) [17] The failure by Mr Henson is significant. The requirement to either identify a particular decision on the claim, a particular claim for entitlements that the Corporation has unreasonably delayed processing, or a particular decision by the Corporation on a complaint made by Mr Henson under the Code as required by $135 is mandatory. The complete lack of particulars provided to either specify a particular decision of the Corporation or identify any particular application for entitlement outstanding means that each of the review applications is fundamentally flawed and, as a result, cannot possibly be construed as valid review applications. 18] The failure to link the reviews filed to the requirements in s 134 despite being given every opportunity to do so and, in particular, following the first day of hearing, means that rather than engaging in the dispute resolution processes contained in Part 5 of the Act Mr Henson's review applications are instead a series of ambiguous complaints untrammelled by any relationship to the requirements of the Act. The lack of particularity in each of the review applications can only be described as extreme and at a substantive level would make it impossible for the Corporation to respond in any sensible way. This is aggravated by what, in many cases, is the nonsensical relief sought by Mr Henson, which would be an abuse of process to entertain further. [19] It follows that Reviewer Lock was correct to reject both the enforcement reviews and the non compliance reviews and in respect of all 44 reviews now at issue in this appeal Mr Henson's appeal must be dismissed. Decision [20] The appeal is dismissed. The valid reviews (Review 4309585 and 4277086) should be set down for review hearing hearings if this has not yet occurred. [21] The Corporation seeks costs on the appeal. Although generally the Corporation does not seek costs nor is it the position of this Court in general terms to award costs against unsuccessful claimants, the Court retains an overall discretion to do so in appropriate cases. In this case it is apparent for the reasons set out above that the matters sought to be advanced on behalf of Mr Henson were an abuse both of the review process and the processes of this Court. In those circumstances the Corporation is entitled to costs and reasonable disbursements. The Corporation has in fact already filed a memorandum setting out its claim for costs and in the circumstances I direct that a copy of the memorandum is to be provided to Mr Henson following which he will have until 28 September 2017 to respond to that memorandum, following which I will determine the issue. Judge L G Powell District Court Judge Solicitors: McBride Davenport James, Wellington, for the respondent ACR 387-15-Henson