Q v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 123/2006 UNDER The Injury Prevention, Rehabilitation, and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN KATYA PFENNIGER of Helensville Appellant (Appeal No. AI 577/02) AND - ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent RESERVED JUDGMENT OF JUDGE J. CADENHEAD ON THE PAPERS THE COURSE OF THE HEARING [1] The parties have agreed that this decision should be made on the papers. [2] The appellant has applied for the reinstatement of her appeal, which was withdrawn when a notice withdrawing her appeal was filed on 13 October 2004. The appeal had been against a decision of a review officer declining her claim for a work related gradual process injury. [3] On 12 March 2005 the appellant lodged a notice with the District Court seeking to reinstate that appeal. https://openlawnz-my.sharepoint.com/personal/andrew_openlaw_nz/Documents/ACC Decisions (DC appeals)/2006/123-2006 Pfenniger.doc AE [4] The appellant submits that her previous counsel, Mr Simon Laurent, had not provided her with proper advice upon which to found her decision to withdraw the proceedings. [5] On 20 April 2005 the registry communicated the following Directions Order made by His Honour Judge Ongley: “This will have to be handled as a formal application for reinstatement. The applicant will have to file an application accompanied by her sworn affidavit setting out the circumstances on which her lawyer filed a discontinuance of the appeal, and why she now claims that the appeal should be reinstated. If possible, there should also be an affidavit from the lawyer who discontinued the appeal. The other parties will then have to be given the opportunity to reply to the application. I suggest that the responses are timetabled once the formal application and affidavits are filed.” [6] The appellant filed an affidavit dated 3 June 2005 along with submissions of her representative, Mike Darke, advocate, dated 26 June 2005. [7] A letter dated 4 October 2005 was sent from Mr Simon Laurent, solicitor, to Mr Darke, advocacy manager. [8] The matter came before me on 26 January 2006, and I adjourned the matter to 27 January 2006 when I made the following Directions Order: “[i] Mr Simon Laurent, the appellant’s previous solicitor, is to provide a letter with an explanation of the situation concerning the withdrawal of the appeal; including his response to the appellant’s affidavit. [ii] When this information has been provided the respondent is to file submissions within seven days of receipt. [iii] The appellant should then file her submissions 21 days from service of the respondent’s submissions. [iv] It is felt there is no need for a bundle of documents in this case.” [9] That Directions Order was dated 9 February 2006. [10] A further letter has been received from Mr Simon Laurent dated 27 January 2006. 123-2006 pfenniger 2 [11] The respondent opposes the application to reinstate the appeal on the basis that the appellant has failed to demonstrate that the withdrawal was a nullity. BRIEF BACKGROUND [12] The appellant lodged a claim for cover for a work related gradual process injury in 2001. The appellant was then employed as a student adviser with the University of Auckland. The application was managed by Work Aon. On 19 October 2001 the respondent issued a decision declining the appellant’s claim for cover. The matter went to review and in a decision dated 20 February 2002 the reviewer quashed Work Aon’s decision and remitted the matter back for further investigation and a new decision. [13] Following further investigation Work Aon issued a decision on 26 January 2002 declining the claim for cover. [14] The matter again went to review, and in a decision dated 18 September 2002 the reviewer upheld Work Aon’s decision on the basis that there was insufficient evidence to demonstrate a causal nexus between the appellant’s symptoms and her employment, as well as insufficient evidence to demonstrate that a physical injury had been suffered. [15] A notice of appeal was filed in early November 2002. [16] There was then some delay with the appeal, and at some time in 2004 the appellant instructed Simon Laurent to represent her (the appellant had earlier been represented by Smith & Partners from November 2003 to March 2004). [17] The appeal was placed on the reserve list for an appeal circuit scheduled for 2 –4 November 2004 at Auckland. Prior to the circuit, Mr Laurent wrote to the registry enclosing a notice of discontinuance dated 13 October 2004. [18] The registry wrote to the parties on 18 October 2004 confirming that the appeal had been withdrawn. [19] On 12 March 2005 the Combined Beneficiaries Union wrote to the registry requesting that the appeal be reinstated. This was followed by a letter from the registry dated 20 April 2005 recording the directions from Judge Ongley that I have noted above. 123-2006 pfenniger 3 JURISDICTION [20] The law concerning the reinstatement of an appeal after a notice withdrawing the appeal has recently been coherently stated by Judge Ongley in Corby (AI 28/04 decision 4 April 2006). As Judge Ongley said in his decision: “[2] In Miller v ACC(251/96) and Cortesi v ACC (92/03), it was held in this Court that abandonment of an appeal is equivalent to dismissal with the result that the appellant’s rights have been extinguished. Those cases Court applied the observations of Tipping J in Simpson v Police (High Court, Christchurch, AP228/90, 10 December 1990). That principle was applied again in this Court in Franklin v ACC (102/03). [3] Ms Douglass for the respondent submitted that once an appeal has been abandoned, the Court will not grant leave to reinstate it. The only circumstance in which the appeal can be revived is where the appellant did not intend to abandon the appeal so that the abandonment should be set aside. [4] In this case the appellant instructed her solicitors to abandon the appeal, after she received advice from them concerning the chance of success and the cost of representation. After seeking other advice, she changed her mind and applied to have the appeal reinstated. [5] Full argument has not been heard concerning the power of the Court to reinstate the appeal, beyond the acknowledgement by the respondent that the abandonment may be examined to decide whether it was voluntary. [6] I am not aware of any authority permitting reconsideration of an appeal voluntarily abandoned. There is nothing in the rules that would assist the proposed appellant. It is possible that the application could still be approached either through the Court’s inherent power to regulate its own proceedings, or by way of application for leave to appeal out of time. There are reported cases in other jurisdictions in which deemed abandonment of an appeal has occurred through failure to take a required step, and the matter has been reconsidered as an application for leave to appeal out of time. In those cases, the appellant did not intend to abandon the appeal in the first place. [7] There would be few cases in which the Court could intervene under its of residual jurisdiction. Perhaps it could occur in a case of clear unfairness, but it would be unlikely that a claimant with a clear claim for cover or entitlements would voluntarily abandon an appeal except in the case of a mistake, including a mistake caused by accepting incorrect advice. [8] After reviewing the evidence, I have decided that this appeal does not call for consideration of the question whether a claimant could obtain relief by leave to appeal out of time after abandoning an appeal in reliance on wrong advice from a professional advisor. The usual recourse in such a situation would be to claim for damages in negligence. Of course that is a very unsatisfactory answer for the claimant, but it accords with the principle of finality in proceedings between the original parties. The argument for finality may be less compelling where the other party is a state corporation with obligations to assist injured persons. 123-2006 pfenniger 4 [9] In this case I find that the abandonment was voluntary, both from the point of view that the appellant did intend to withdraw the appeal, and from the point of view that she was properly informed.” THE SUBMISSIONS OF THE APPELLANT [21] The appellant submits that it is first important to consider what Mr Simon Laurent did advise, and that combining his email to the appellant of 7 October 2004 with his two responses in 2005, the following can be stated: [a] There was no possibility for a lump sum payment for a gradual process injury prior to 1 April 2002. [b] The appellant could get an independence allowance if she was deemed to be ten percent permanently impaired. [c] It is possible to get a lump sum pay out on an independence allowance computing a five year period. [d] He accepted the business was stressful and that the appellant needed to consider whether she could afford to continue with the employment issue, let alone the ACC matter, also taking her wellbeing into account. [e] He had no objection if the appellant just simply wanted to walk away from it all and that might be the best thing. [f] The appellant sent Mr Laurent an email on 7 October saying that it would be best to drop the ACC claim. [g] Her only entitlements would be the independence allowance at $130 per week or less than $2,500 for the five year lump sum. [h] This had to be balanced against the legal cost of the legal aid which would be a future charge on her assets and that she could easily run up a $5,000 legal aid bill. [i] It appeared to Mr Laurent that the appellant was making herself unwell by devoting so much of her time to litigation. [j] The appellant could not get compensation under both the ACC and through the Employment Court. 123-2006 pfenniger 5 [22] The submission of the appellant is that she did not get the appropriate level of advice to fairly inform her of her options, and therefore did not have the opportunity to make a considered informed decision. The appellant accepts that Mr Laurent was well intentioned. However, she claims that the withdrawal of the appeal was made essentially without the benefit of the advice that she was entitled to receive. Further, given Mr Laurent’s awareness of the stress that the appellant was under it was vital for him to ensure that she was made aware of and fully understood the situation. [23] It is submitted that the “nullity” test is satisfied. Further, it is submitted on fairness grounds it would be wrong not to allow the appeal to be reinstated. THE SUBMISSIONS OF THE RESPONDENT [24] The respondent submits that generally once an appeal has been withdrawn that is the end of the matter. However, where the appellant is able to satisfy the Court that the withdrawal was not a result of a deliberate and informed decision, the Court may then treat the withdrawal as a nullity. [25] The submission of the respondent is that Mr Laurent stated in his initial letter that the appellant initiated the idea of withdrawing the appeal on 13 September 2004. He provided advice to the appellant regarding the fiscal aspects of pursuing the appeal, including the issue of costs as against the potential benefits of her succeeding. Mr Laurent also stated that there were other matters relevant to the withdrawal, including the fact that the appellant was under considerable stress in relation to both the Employment Court action and the ACC appeal. Mr Laurent concluded at p.2: “Her assertion that she did not make an informed decision does not appear tenable on the face of the above, and it seems strange that this matter is being resurrected now.” [26] In Mr Laurent’s later letter of 27 January 2006 he indicated that he had had an opportunity to consider and respond to the appellant’s affidavit. He referred to perceived errors in the appellant’s affidavit and stated he did not advise the appellant to withdraw the appeal because she could not get compensation under both the ACC Act and in the Employment Court. He said that he did not recall encouraging the appellant to withdraw the appeal. He stated: “I responded to her own indications that she was finding it enormously emotionally draining to pursue the litigation, which is the point at which I agreed to check what she could hope to achieve with the Appeal. When I came up with the figures that I 123-2006 pfenniger 6 assessed as her likely award if successful, I then suggested to her that it might not be worthwhile to go on in light of the toll that it was taking on her health (by her own admission).” [27] Mr Laurent summarised the matter as follows: “I made a professional judgment based on what was contained in the applicable legislation, as well as my awareness of the stress that Ms Pfenniger was experiencing in dealing with the litigation – both ACC and Employment. … ” DECISION [28] It is clear that the appellant made her decision to abandon the appeal after consultation with her solicitor. The appeal was a formal document of notice of discontinuance dated 13 October 2004 and was received by the registry on 16 October 2004 under cover of her solicitor’s letter. Then there transpired a period until 12 March 2005 when the Combined Beneficiaries Union wrote to the registry. [29] After standing back and looking at the affidavits of the appellant and the letters of Mr Laurent, I cannot say that the appellant in abandoning the appeal lacked the necessary insight to what she was doing. At all times she was acting pursuant to legal advice, and if she had a remedy in regard to the adequacy of that advice, that is not an issue for this Court. Then there was a gap of some months. Not only the interests of the appellant have to be looked at but also the interests of the respondent and any possible third party. There are strict time limits for bringing an appeal. [30] I have endeavoured to weigh the matters deposed to by the appellant as to her circumstances and the advice that she was given, but I must also weigh those responses against the information provided by Mr Laurent. It seems to me that the advice given by Mr Laurent tailored at the time to the appellant’s personal circumstances, and I certainly cannot say this advice was inadequate. [31] For the reasons that I have given I refuse leave to reinstate this appeal, if I have the jurisdiction to do that. There will be no order as to costs. DATED at Wellington this 24th day of May 2006 (J Cadenhead) District Court Judge 123-2006 pfenniger 7