Buckland v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 271/97 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN KEVIN BUCKLAND of Wanganui Appellant (Appeal No. DCA 102/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 4th day of November 1997 APPEARANCES Ms W Aldred for appellant Mr JD Palmer for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant is entitled to lump sum compensation by virtue of s.90(9) of the Accident Rehabilitation and Compensation Insurance Act 1992 notwithstanding his failure to make the necessary election within the time limit specified by s.147 of the Act. The appellant suffered a serious back injury on 15 May 1986. He lodged a claim with the respondent and received earnings related compensation. In December 1993 he . applied to the respondent for consideration for lump sum compensation under ss.78 and 79 of the Accident Compensation Act 1982. At the time of that application the appellant had made no election for any lump sum compensation. On 28 March 1994 2 the respondent advised the appellant that he was not entitled to lump sum compensation under the 1982 Act because he had failed to file an election notice with the respondent before 31 March 1993 as required by s.147 of the Act. On 13 April 1994 the appellant applied for a review of that decision. Through an oversight the respondent did not set down the application for the review hearing within the three months specified by s.90(9) of the Act. On 9 August 1994 the respondent advised the appellant that pursuant to s.142(2) the respondent had no statutory authority to make a lump sum award and accordingly he could not claim the benefit of s.90(9). Subsequently the application for review was heard and the review officer held that the appellant was not entitled to lump sum compensation by virtue of s.90(9) as this would be ultra vires the powers of the respondent. It is against that decision which the appellant now appeals. The appellant has appealed against that decision. The appellant's ground for appeal is that the review officer was obliged to take into account the respondent's policy in respect of his late application which in the circumstances of this appellant would have entitled him to a legitimate expectation that his application for review would have been favourable. It was submitted further that the policy guidelines issued through the respondent's General Manager constituted a promise by the respondent to follow a certain procedure and that it was therefore bound by such policy guidelines to act fairly and that the review officer should have followed that policy. Ms Aldred submitted that there is a conflict between the provisions of s.147(2) and s.90(9). She submitted that s.147 is a purely procedural provision while s.90(9) is concerned with the review procedure and effectively provides relief where the respondent has failed to hear a matter within the statutory time limit. She submitted it is not a question that the two provisions simply purport to deal in different ways with the same situation. Mr Palmer submitted that s.147(2) is part of the transitional provisions between the 1982 and 1992 Acts and provides machinery whereby an election can be made for lump sum compensation under the 1982 Act. He submitted that s.147(2) is drafted in specific terms and in order to qualify the appellant must comply with the requirements of the section. He submitted that s.90(9) governs the procedures for review of the respondent's decisions and determines that where a review hearing is not commenced within three months of the application for review being lodged it shall be determined in favour of the appellant. He submitted that where there appears to be a conflict it is a principle of statutory interpretation that the more specific section is to be preferred and that in this case while s.147(2) is drafted in specific and unambiguous terms s.90(9) is drafted in broad terms. In order to entitle the appellant to an award of lump sum compensation he had to bring himself within the provisions of s.147 and in particular s.147(2). He was a person who had an entitlement to compensation under s.78 or 79 of the 1982 Act in respect of a personal injury, but had not received any payment under those sections. 3 He was also a person who would have an entitlement to an independence allowance under the 1992 Act in respect of personal injury had it been suffered on 1 July 1992 and accordingly had the right then to elect to receive his entitlement under either ss.78 or 79 of the 1982 Act or an independence allowance under the 1992 Act, but not both. However, that section requires that the appellant had to make that election "not later than the 31st day of March 1993". It is quite clear that the appellant had not made an election before the 31st day of March 1993. In fact he did not even approach the respondent to enquire about his entitlement to lump sum awards under the 1982 Act until December 1993. When he was advised that his application was declined he applied for a review of that decision. As the application for review was not set down for hearing within the three months specified in s.90(9) the appellant claimed entitlement under that section. As I have already held in Tito (13/96) that notwithstanding the provisions of s.90(9) the specific requirements of s.147(2) must be complied with by the appellant in order to qualify for lump sum awards under the 1982 Act. I agree with the finding of the review officer that having regard to the decision in Tito and my decision in Hayward (49/96) the provisions of s.90(9) cannot be held to operate to require the respondent to make a decision which is ultra vires its powers. I consider that the specific provisions of s.147(2) must take precedence over s.90(9) in dealing with the transitional provisions for entitlement to lump sum awards. As to the appellant's argument that he had a legitimate expectation to a successful outcome of his application for review, I reject that argument. In my view, prior to the 31st day of March 1993 he certainly had a legitimate expectation that he could receive either an independence allowance under the 1992 Act or lump sum awards under ss.78 and 79 of the 1982 Act, provided he lodged his election before the 31st day of March 1993. I do not consider the fact that the respondent through its General Manager provided its staff with certain policy statements regarding the application of s.147 during the transitional period can in any way be claimed as a legitimate expectation on the part of this appellant. The documentation relating to the policy statements which the appellant has produced was not published for the general public consumption. It was merely a guide to assist the staff of the respondent through a difficult period. While it may have shown that in certain circumstances notwithstanding the provisions of s.147(2) the staff at the direction of the General Manager might have been able to accept elections which did not comply with the specific requirements of s.147(2). I consider that there is no power in the Act for the respondent through its General Manager to relax the specific requirements of s. 147(2). If in certain circumstances it did so then I consider that those actions would have been ultra vires the powers of the respondent. Accordingly, I do not accept the submission that the review officer was bound to have observed those directions even had they been applicable to this appellant which is a proposition with which I do not agree. The appeal is dismissed. DATED at WELLINGTON this 19th day of December 1997 A W Middleton District Court Judge dc10297.doc(rd)