Kereama v Accident Compensation Corporation

IN THE DISTRICT COURT AT HASTINGS [2017] NZACC 13 ACR 285/15 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT ON A QUESTION OF LAW UNDER SECTION 162 OF THE ACT BETWEEN MARGARET KEREAMA Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: Decided on the papers Judgment: 15 February 2017 JUDGMENT OF JUDGE JH WALKER [1] This is an application for leave to appeal to the High Court from a judgment of Judge A N MacLean dated 8 August 2016'. [2] The issue for determination by Judge MacLean arose out of an application by Margaret Kereama ("the applicant") seeking a late review of a 1999 decision of Accident Compensation Corporation ("the Corporation"). Background [3] On 19 May 1999 the Corporation issued a decision declining an independence allowance to the applicant together with advice on her review rights. Kereama v Accident Compensation Corporation [2016] NZACC 209 [4] Subsequently on 24 February 2015 the applicant sought a review of that decision. On 8 March 2015, the Corporation wrote to the applicant advising there was no jurisdiction to seek a review because there was no ability under the 1992 Act to extend the time for review beyond the statutory three months period. [5] On 20 March 2015 the Corporation arranged for a reviewer to be appointed to hear the purported application for review and on 7 April 2015 a hearing date was set. [6] On 30 March 2015 the Corporation wrote to Mr Willson, advocate for the applicant stating "There will be no jurisdiction in respect of review number 4023586 in the absence of a challenge to the 18" March 2015 decision". It would seem that the Corporation suggested that the applicant apply for a review of the 18 March 2015 decision. [7] On 31 March 2015 Mr Willson replied indicating that if the Corporation would not accept the late application the parties should agree to the reviewer making a preliminary determination on which legislative provisions apply to the applicant's late application for review. [8] This was agreed to by the Corporation and the appeal proceeded on the papers. [9] The reviewer Ms Thompson issued her decision on 3 September 2015. The stated outcome: I find that the application for review was out of time and therefore invalid. I therefore dismiss the application for want of jurisdiction. [10] In addition the reviewer declined to make any order for costs. She stated she did not consider it reasonable for Mrs Kereama to pursue this late application for review. [11] The matter was the subject of an appeal. The matter was heard before Judge A N MacLean on 27 July 2016 and his judgment was issued on 8 August 2016. [12] Judge MacLean stated: [1] The issue in this appeal is a jurisdictional one, namely was an application for review available in 2015 in respect of a respondent primary decision of 19 May 1999. [13] Judge MacLean concludes at paragraph [43] of his decision: [43] The time has well past to challenge the 19 May 1999 decision. The 18 March 2015 notification by the respondent of non acceptance of the late application was not a reviewable decision but simply a statement of the legal position. It was not a decision on the underlying substantive merits claim under 134, so did not trigger s 64. The appellant describes the 18 March decision as a declaration. To some extent that is correct namely that the corporation was declaring its view, correctly in my view, on the jurisdictional position. Accordingly the obligation, as the appellant puts it "to accept the application without demur in accordance with section 135(3)" is not sustainable. [14] Judge MacLean dismissed the appeal. Grounds for Leave to Appeal [15] The Application of Leave to Appeal was filed on or about 15 August 2016. No grounds as such were relied on by Mr Willson, advocate for the applicant. [16] In the Application for Leave however, with respect to The Questions of Law, it is stated at 2.1: 2.1 The questions of Law for which leave is sought are as follows; 1. Pursuant to ss 137(2) and 391 of the Act, is ACC estopped from refusing an application for review on the grounds stated in its Decision under appeal before Judge MacLean, that "... there is no right of Review ..." of a Decision under a former act? 2. Was the application for review of a decision under a former Act subject of s 391(4) and was ACC instead, required to issue a decision under s 135(3) on extenuating circumstances?, and; 3. If so; in failing to do so and give rights of review pursuant to ss 63 & 64(4) [c], was the Review estopped from disclaiming jurisdiction by s 135(3) [c] from declining costs and vacating a Hearing on the substantive matter, scheduled for 8 September 2015? and; 4 . Did the Honourable Judge misdirect himself by giving undue weight to the Interpretations Act 1999, ss 7 & 17 and failing to first, properly consider and apply s 5 of that Act to s 391? 5. If the above are answered in the affirmative, can this Court direct under HC rr 76(1) [c] & (3), that the costs of this action and prior proceedings are reconsidered? 2.2 Such variation and clarification to these questions of law as may arise in the Applicant's submissio [17] Mr Willson filed lengthy submissions in support of the application and also substantive submissions in reply to the submissions filed by counsel for the Corporation. The Law [18] Application for leave to appeal is made under s 162 of the Accident Compensation Act 2001 ("the Act") which states: 162 Appeal to High Court on question of law (1) A party to an appeal who is dissatisfied with the decision of a District Court as being wrong in law may, with the leave of the District Court, appeal to the High Court. (2) The leave of the District Court must be sought within 21 days after the District Court's decision. 3) If the District Court refuses to grant leave, the High Court may grant special leave to appeal. The special leave of the High Court must be sought within 21 days after the District Court refused leave. (5) The High Court Rules 2016 and sections 74 to 78 of the District Courts Act 1947, with all necessary modifications, apply to an appeal under this section as if it were an appeal under section 72 of that Act. [19] The principles in respect of leave are well established. [20] The decision Hutchen,' referred to by both parties, sets out these principles. [21] These in summary are: [a] Leave only lies on a point of law; [b] It is not a question of law where facts are applied to properly stated law; Hutchen v Accident Compensation Corporation [20015] NZACC 274 [c] The issue of law must arise squarely from the challenged decision and must not arise in the proceedings (as opposed to being hypothetical or abstract); [d] The point of law must be capable of bona fide and serious argument; [e] Care must be taken to avoid allowing questions of fact to be dressed up as questions of law, and [f] Even if the threshold test is satisfied, there also need to be good reasons to exercise a discretion in the applicant's favour, taking into account the nature of the appeal, and public interest including the proper use of scarce judicial resources. Leave is not granted as a matter of course. Position of the Applicant [22] There appears to be a number of salient points relied on by the advocate for the applicant set out in his submission as follows: 3.1 s.137 provides that the Corporation; 137(2) "... must arrange for the allocation of a reviewer to the review even if it considers that there is no right of review in the circumstances.". We submit that the ruling by Judge MacLean at [43] that ACC is empowered to decide jurisdiction and refuse an application for review, is not sustainable in law. 3.2 Application for Review and Appeal of decisions made under the 1992 and 1998 Acts, filed under the current Act we submit, follow the dispute procedure under part 5 of this Act unless a process was already in train. Those applicants suffer no disadvantage under the 2001 Act. ss391(2) & 3) imply nothing else with respect to applications arising today. It is irrelevant that such applications didn't arise (were not filed) in the past. 3.3 Therefore; applications filed today are subject to Part 5 135(3) [c]; (3) ... the Corporation must accept a late application if satisfied that there are extenuating circumstances that affected the ability of the claimant to meet the time limits, such as - . .. (c) Where the Corporation failed to notify the claimant of the obligations of persons making an application. A decision by ACC that "...there is no right of review ... " is simply incompatible with the legislation, as was its failure to notify those rights under ss 63 and 64(4)[c]. The Review decision is similarly ultra vires. The ruling by Judge MacLean, ceding judicial authority to the executive is not only unthinkable, it is unlawful. 3.4 If s 391(4) is not to be taken retrospectively, we have the following structural inequities which Parliament, when enacting the 2001 legislation could not possibly have intended in s391; . 1972, 1982 and 2001 claimants can make late applications for review and appeal of unjust decisions made under those Acts 1972, 1982, 1992 and 1998 claimants can apply (also late) for cover and entitlements provided for in Part 11 retrospectively ($354) and also file late applications for review and appeal of those retrospective decisions 1972, 1982, 1992 and 1998 Act claimants can dispute updated entitlement decision made under Part 1 1, also applying late But (apparently); 1992 and 1998 Act claimants already with cover, but whose original entitlement was unjustly or unlawfully denied under those Acts, have no compensation at all, no access to updated entitlements and no right of review or appeal to seek to correct that injustice; notwithstanding that the level of proof required would be enough for ACC to revoke the decision under $390. Not only is such inequity inconceivable, it does not arise when $391 is construed and applied as "fit-for-purpose" on its face. It is without need of importing extrinsic rules of law in what has been seen as something necessary to make it work; by imposing some judicial notion of fairness to a peculiar set of facts, then rule "as a matter of law", that this novel importation of extrinsic rules is the law, rather than the enactment itself. We submit this is a question of law, capable of bone fide argument. 3.5 It was widely publicised that the new Labour administration would reject privatisation and made the scheme fairer. Generous lump sum compensation was restored, for example. How can it be said that the interpretation of s 391 contended for by ACC and Judge MacLean, is consonant with that legacy? In the interpretation we contend for, s.391 places all claimants under all Acts on an equal footing of being able to apply (no more than that) to extend time for late applications for review and appeal of decisions under all Acts. The extenuating circumstances which would allow those decisions to be tested, still have to meet an appropriate standard, such as outlined in Mcdougall v Accident Compensation NZACR 677 (1983) 4 NZAR 85. Caselaw suggests that few such claims succeed and the concept of this opening "flood-gates" is both unrealistic and absurd. One desirable result would be that under all Acts, past unlawful and unjust decisions may be able to be tested if appropriate extenuating circumstances can be made out. Access to justice is a fundamental question of law. Presently, the applicant is being "shut out" 3.5 We repeat out claims before both Review and Judge MacLean, that: Therefore in accordance with s 137(2), s 391(4) and s 135(3); (a) It is for the Review to make a determination on ACC's Decision, but only upon the merits of a dispute under s 135(3) arising from a formal Decision pursuant to s.64 on extenuating circumstances, and not on any other basis. (b) No such primary Decision on extenuating circumstances was before the Review (no enquiry was entertained at all). (c) Lateness was in any case, nullified under s. 135(3)[c] when a failure to notify rights of review occurs (ss 63 & 64(4) [c]). (d) A Review must therefore accept jurisdiction and proceed to a Hearing of the merits of the substantive matter for Review, being a Decision made under a former Act and applying that Act to the merits, as a matter of Law. [Emphasis in original] [23] The position of the applicant appear to be that Judge MacLean, in paragraph [43] of his judgment, rules that the Corporation is empowered to decide jurisdiction and to refuse an application for review if not sustainable in law. [24] The submission of the applicant is that applications for review and appeals made under the 1992 and 1998 Acts, filed under the 2001 Act, follow the procedure set out in Part 5 of the 2001 Act unless a process is already in train. [25] Accordingly, Mr Willson submits the applications that were filed were required to be dealt with under s 135(3) of the Act and that the Corporation must accept a late application if it is satisfied there is extenuating circumstances. His rationale appears to be the Corporation advising the applicant that there was no right of review is not compatible with legislation and there was a failure to notify of rights under ss 63 and 64(4)(c) of the Act. Accordingly, Mr Willson submits that the review decision is ultra vires and the ruling of Judge MacLean is incorrect in law. [26] Mr Willson submits that if's 391(4) is not to be taken retrospectively there are structural inequalities which the Parliament when enacting the legislation could not have intended. [27] In 3.5 (note there are two 3.5s in his submissions - I refer to the second 3.5) it appears the applicant's position is that the review should have been only on the merits of the dispute under s 135(3), arising from the Corporation's decision not to accept a late application for review. [28] Mr Willson also submits the lateness is nullified by the failure of the Corporation to notify of rights of review and that the Reviewer must therefore accept jurisdiction and proceed to a hearing on the merits of the substantive matter for review . [29] He also advances that the power of the District Court is solely to grant or decline leave to appeal and that the Act does not require the applicant to formulate a question of law. [30] Notwithstanding this submission, he raises the following questions: 1. Was the letter dated 18 March 2015 a "Decision" rejecting a right granted by statute, or was it a non reviewable "notification" and as such an executive declaration practice sustainable in law? 2. Pursuant to ss 137(2) of the Act, is ACC estopped from refusing to accept an application for review, whether late or otherwise? 3. If so, was the Court correct to rule at 43 that such rejection of an application for review is not a decision subject to review and appeal? 4. Pursuant to s 137(2) of the Act, is an appointed Reviewer estopped from disclaiming jurisdiction and vacating a Hearing scheduled for 8 September 2015? 5. Is it lawful for ACC to "declare the law" regarding applications for review, in lieu of making a decision according to law, or is that a matter for the courts applying statutes properly construed to facts in each case? 5. If so, is the Court ruling at [43] that ACC may decide such matters without the Court's supervision, sustainable in law? 7. If not, was the instant application for review of a decision under a former Act subject to s 391(4) and was ACC required to enquire into the circumstances of lateness and issue a decision pursuant to s 135(3) that extenuating circumstances were, or were not, made out? 8. If any or all the above are answered for the applicant, can this court direct under HCrr76(1)(c) and (3), that the costs of this action and prior proceedings are reserved for the applicant? Position of the Corporation [31] Mr McBride for the Corporation filed his submissions dated 1 September 2016. He states that the essence of His Honour's judgment was that the 2001 Act did not vest retrospective rights to the appellant to bring a very late review under the 2001 Act. [32] He states the case for the Corporation is that the questions by the Applicant advanced are: [i] Not bona fide or credible questions of law; [if] Do not arise from the judgement; and [ifi] In any event, would not warrant the grant of leave. [33] Mr Mcbride sets out the background as viewed by the Corporation in paragraphs 4 to 6 which state as follows: 4. As recorded in the judgment: 4.1. On 19 May 1999, ACC issued the operative primary decision about independence allowance, advising review rights. No application for review was made within time: at [2]. 4.2 Neither the 1992 Act (in force as at May 1999) nor the 1998 Act in force from 1 July 1999 until 31 March 2002) allowed any extension of the 3 month time for review: at [3]. 4.3. On 24 February 2015 the applicant by her advocate sought a late review of the 1999 decision: at [4]. 4.4. On 18 March 2015, ACC advised its view that was no jurisdiction to do so: at [5]. 4.5. After the Applicant by her advocate sought to advance matters, a reviewer considered jurisdiction, and concluded that there was none; the purported review was out of time and was invalid: at [6]. 5. An appeal was filed in this Court. 5. By decision dated 8 August 2016 ([2016] NZACC 209) His Honour Judge MacLean dismissed an appeal, determining that (in accordance with "a clear line of authority": at [42]): 6.1 There was no basis for retrospective operation of the 2001 Act in the manner sought; and 6.2 Accordingly there was no jurisdiction to entertain the purported late review. 7. By application/email on 15 August 2016, the Applicant by her advocate sought leave to appeal on what were then termed five questions of law. 7.1 The first of those sought to invoke notions of estoppel to the facts of this case so as to found review jurisdiction; 7.2 The second contended for retrospective application of section 135(3) of the 2001 Act to circumstances under previous Acts; 7.3 The third, contingent upon the second, again sought to invoke concepts of estoppel as regards costs and vacating a review hearing; 7.4 the fourth asked a generic question whether the court misdirected itself by giving undue weight to "the Interpretations (sic) Act 1999, ss7 and 17..."; and 7.5 The fifth seeks to ask whether "this court'could direct reconsideration of costs in terms of the High Court Rules. 8 . In submissions latterly filed the Applicant contends: 8.1 That this Court's practice of formulating questions of law is without jurisdiction (at 4.1); and 8.2 Seeks to advance 8 other "potential non-exhaustive questions of Law" [34] Mr McBride refers to a framework for considering leave applications, including citing authorities for various points. He refers to the principles that apply to the granting of leave summarised in the decision of His Honour Judge Hole in Hutchen, as set out in [21] above. [35] Mr McBride helpfully addressed the questions before the Court under the headings: . Jurisdiction by Estoppel; Retrospectivity; . Reviewable Decision; and Costs Jurisdiction by Estoppel [36] Mr McBride states that this addresses the applicant's first and third postulated questions set out at [16] of this decision. [37] Mr McBride states it is beyond any credible argument that equitable notions of estoppel, waiver or the like are quite inapplicable under statutory code, that is accident compensation. In this regard he refers to the decision of Sinclair v ACC paragraphs [37], [38] and [39] of that decision which state: [37] The proposition that legitimate expectation could not arise in respect of something the Corporation does not have lawful power to do is illustrated by an analogy with the decision in Wong-Kam v Accident Rehabilitation and Compensation Insurance Corporation. In that case, the claimant had made a claim for a lump sum payment after the date provided in the relevant statute as he cut-off for pursuit of such claims. The claimant had erroneously been advised that he was entitled to lump sum compensation and relied on that indication in entering other financial commitments. It was held that an estoppel cannot be used to compel a body of this nature to act outside the confines of its statutory powers or to prevent the exercise of a statutory power. Although the analysis in that case involved estoppel, rather than legitimate expectation, the limitation on resort to the doctrines is relevantly similar in this respect. [38] Here, the Corporation is required to respond to a claim in accordance with the provisions as to the process for claims in ss 48 to 58 of the Act. If Ms Sinclair had gained an impression that the Corporation was treating, or would treat, her claim as one for cover for a mental injury when it would not be lawful for the Corporation to attribute that status to it, then a legitimate expectation cannot arise on her part that it would be treated as such an application for cover. [39] I have confirmed that the claim initiated by Ms Sinclair did not constitute a claim for cover for mental injury following physical injury in terms of the process required by the Act. Having done so, there is no scope to invoke the notion of legitimate expectation on her part to transform the legal effect of her actions and the Corporation's response so that her claim would be treated as such. [38] Mr McBride refers to the fact that the jurisdiction under the Act is exclusively a matter of statute and well defined. [2012] NZHC 406, [2012] NZAR 313 [39] Mr Mcbride refers to a number of authorities including Accident Compensation Corporation v Broadbelt: However, the first and crucial question is whether the Corporation has authority to pay such a claim. As a statutory body it requires statutory authority to do so. [40] Further, in Robinson v ACCS: [43] As a statutory corporation the Corporation has only those powers which it is given by statute, whether expressly or by necessary implication. [41] In support of this approach, Mr McBride also refers to the Court of Appeal decision of Wellington Regional Council v Edwards and the decision of Hawke v ACCT: [29] It is trite law that appellate jurisdiction can only be conferred by statute. If a person desires to appeal, he or she can only do so if an applicable statute has given him or her that right, and only within the limits of the statute giving the right lays down. [42] Counsel also refers to a Reviewer's right to determine issues of jurisdiction. He refers to the decision of ACC v O'Neill8: [28] We consider that the effect of the statutory scheme is that a hearing in 146(1) includes a hearing on whether the reviewer has jurisdiction. As we now explain, that approach fits with the discretion given to the reviewer to conduct the hearing and with the effect of a decision to decline jurisdiction. Further, that approach is consistent with the statutory language and legislative history. [29] ... The conduct of the review may well involve the reviewer determining an issue about jurisdiction. [43] Mr McBride submits that the jurisdiction in respect of any right of review out of time cannot be affected by any equitable notions, but rather is exclusively a matter of statute. [1990] 3 NZLR 169 [2007] NZAR 193 (CA) [1997] 2 NZLR 129 (CA) 2015] NZCA 189 [2012] NZCA 219, [2012] NZAR 729 [44] Mr McBride states it is beyond question that the existence of any right of review is itself a matter of statute and not dispensed or granted or withheld by the Corporation and states: 16.1 Any right of review exists under s 134(1). 16.2 The Applicant's contention that ACC "gives" such rights under s 63 and/or 64 is misconceived; at most under those provisions ACC is required to "tell the claimant" about such right, and to "give the claimant .. . information about" such right. [45] He submits that no bona fide or credible, or seriously arguable issue exists in respect to either the first or third question. Retrospectivity [46] Mr McBride states that questions two and four in the application (set out at [16]) turn on whether the 2001 Act had retrospective effect and the seventh question of the applicant's submissions (set out at [30]) broadly co-relates. [47] It is Mr McBride's submission that the applicant is postulating the view that the 2001 Act ought to be given retrospective effect and be viewed as creating new rights to bring to a review in respect of: A decision issued by ACC under the 1992 Act (which does not allow for any extension of time beyond the mandatory three month time limit); Notwithstanding that a decision under the intervening 1999 Act, which also did not allow for any extension of time; and A purported application for review first made some 13 years after the 2001 Act came into force, overall some 16 years outside the mandatory three months time limit as it existed in 1999. [48] Counsel submits this could only occur by way of the 2001 Act creating and vesting new rights in respect to these historical events, in short, retrospectively. [49] Mr McBride refers to a number of decisions, including Board of Management of the Bank of New Zealand Officers Provisional Association v McDonald as authority for the position that retrospectivity could only occur by way of the 2001 Act, creating and nesting new rights in respect of those historical events: A statute is retrospective if it (inter alia) "imposes a new duty ... in regard to events already passed". [50] He states there is adoption of that position in respect of the current Act in the High Court decision of Rangiwhetu v ACC where Her Honour Mallon J duly noted: [66] The question is whether Parliament expressly provided for retrospectivity or whether it is apparent from the context of the 2001 Act that retrospectivity was intended. As was said in Thimbleby v ACC CA 42/03 12 May 2004 at [15] an amendment may be made to remove an inequity, but that does not mean there is an intention that the inequity is to be removed retrospectively. [67] If Parliament intended to do so in this case it can be taken it would have said so. [51] Mr McBride states where the legislature intended the 2001 Act to specifically reach back in time it said so (see ss 346(1), 373, 381 and 382). Moreover the 2001 Act's lack of retrospective effect has been considered and concluded numerous times. " [52] Mr McBride the also refers to Judge Maclean's decision and his findings that the particular provisions the applicant seeks to rely on are not retrospective as set out in Judge Maclean's judgment of [32]-[37]. [53] He submits that there is no bona fide, credible, or seriously arguable point of law arising in this regard. [54] Mr McBride also refers to the decision of His Honour Judge Barber's in Nicholl v ACC" where referring to leave to appeal, he concludes : [2002] 1 NZSC 40,570 Unreported, HC Wellington CIV 2006-485-1407, 19 April 2007, Mallon J 11 Ragiwhetu (as noted earlier); ACC v Robinson HC Whangarei AP 12/03, 1 August 2003; Thimbleby v ACC, CA 42/03, 12 May 2004; and Te Wake v ACC [2008] 1 NZLR 251. 12 [2008] NZACC 53 [9] ... The appellant appealed an 8 December 2003 review decision whereby the Reviewer found that ACC was not permitted to accept a late application for review. That had been filed by the appellant in respect of a 4 August 2000 decision of ACC which had declined the appellant's request for provision of certain aids and appliances. The application for review of that decision had not been lodged until 10 November 2003. The Reviewer had determined that the second issue must be considered under the Accident Insurance Act 1998 which did not contain any provision allowing for an extension of time for the lodging of an application for review outside the three months specifically provided for n s.136. Accordingly, he confirmed ACC's decision not to accept the application for review. [10] Judge Beattie dealt with that issue in paragraphs 19 to 22 of his decision and those paragraphs are set out above. He explained his finding that no rights of review for appeal still exist in relation to the said ACC decision of 4 August 2000 [11] There is no provision for the extension of time for the lodging of review applications in respect of primary decisions made under the 1998 Act. That is settled law. [55] Mr McBride submits where a point is "settled law" as from 2008. There was no bona fide, credible, or seriously arguable point of law arising at that juncture, let alone any basis for the exercise of discretion on any broader basis. Reviewable Decision? [56] Mr McBride is of the view that the first, third and fifth questions postulated in the applicant's submissions are about whether there was a reviewable decision by the Corporation when it advised its view on jurisdiction. [57] Mr McBride states that Judge Maclean deals with that point shortly by addressing the correctness of the position taken by the Corporation on jurisdiction and states that that was also what the Reviewer had done. [58] Mr McBride submits that these matters were determined on the substantive (jurisdictional) merits by both the Reviewer and the Court and that contended issues about inability to bring the matter before a Reviewer or the Court simply do not arise, and at best are hypothetical or abstract. Costs [59] Mr McBride also raises the question of costs which is the fifth matter set out in the application and the eighth question postulated in the applicant's submissions. [60] Mr McBride submits that any issue of costs are inherently fact dependent, and not properly matters of law. [61] He refers to the recent decision of Chalecki v Accident Compensation Corporations paragraphs [34], [35] and [36]: [34] No question of law arises in a Reviewer determining whether the application for review was reasonably brought. It depends on all the circumstances of the case and then the exercise of the Reviewer's discretion. There is simply no basis for a proposition that in all applications brought where there is no jurisdiction to determine the application, an award of costs should be declined in each case. As a general proposition that is supportable in that applications for review brought without jurisdiction are essentially a waste of the time and cost involved in the process of review and should not therefore attract an award of costs in favour of the unsuccessful applicant. [35] It was open to the Reviewer to determine that the application had not been reasonably brought and that no award of costs was justified, and for the Judge to confirm that on appeal. [36] No question of law warranting referral to the High Court arises on this issue, and consequently the application for leave to appeal to the High Court is dismissed. [62] Alternatively, Mr McBride submits that is no error of law in the Court's judgment that could properly arise about the High Court's jurisdiction under specified High Court Rules to consider costs. Discretion [63] In respect of the matter of discretion counsel submits that even if some bona fide and credible issue of law could be identified, leave would not properly be granted and that no good reason has been shown. Mr McBride submits: 35.1 There is a clear and very well-established line of authority in this Court; 35.2 The issue is only properly a transitional one as between the 1992/1998 Acts and the 2001 Act, the latter of which came into full force as long ago as 1 April 2002: s 2(3); 35.3 The Applicant's inordinate and unexplained delays go to exercise of any discretion. 35.4 What is at stake is (at most), a modest independence allowance; as a matter of law the Corporation decided that there any such payment was 13 [2016] NZACC 210 prescribed by reason of separate prior payments to the applicant: refer judgment at [2]; 35.5 There is no wider public interest in the issue; and 35.6 Overall, and as in Nicholl, the interests of justice do not favour, let alone warrant, or require, the grant of leave. The Applicant's Submission in Reply (64] The applicant takes issue with some of the statements of Mr McBride in his submissions and refers to the "usual boiler plate" references about decisions on appeal. [65] At 2.2 of his submissions in reply Mr Willson is critical of Judge Maclean's judgment which he states "repeats item by item, the incorrect clause numbers and wrongly quoted case law, as if cut and pasted from the respondent counsel's submissions in that appeal". [66] In respect to the Corporation being a statutory body he states at 2.3: When ACC refused to act where section 137 mandates it must do so, it makes a decision. [67] In respect of the application for review being out of time he questions how a claimant can get justice "when repealed legislation is used to create an extrinsic notion of "out of time" that is not even provided for in this Act". [68] He also takes issue with the term "settled law" with respect to jurisdiction and is of the view this amounts to merely conventional wisdom which is often proved wrong . [69] With respect to retrospectivity, Mr Willson states it has not been claimed by the applicant that the 2001 Act must be interpreted retrospectively, but that the Act must be interpreted correctly and retrospectively applied when required in accordance with s 351. [70] It is his position that Parliament created equality in once again providing the right to make late application to all claimants. [71] Mr Willson argues that because by repealing prior legislation and making transitional provisions this negates past legislation. [72] On this basis his interpretation of s 351 he is of the view that there are two statutory principles, as set out in his original submission: 3.1.1 The Act in force at the time an application for review or appeal is filed determines the Act and process to be followed (procedural test). 3.1.2 The Act in force when the substantive decision issued, determines the correctness/legality of the decision (substantive merits test). [73] Mr Willson also refers to a number of the decisions referred to in the submissions by Mr McBride. In particular he refers to the decision of Rangiwhetu and states that this is not on point with the facts of this case and that Counsel neglected to mention in the next paragraph, were Mallon J notes: [67] ... it is apparent that Parliament intended that those with entitlements arising prior to the 2001 Act were to have their entitlements dealt with under the transitional provisions ... Mr Willson states that treating a right to apply for review as an entitlement supports his argument. [74] Mr Willson questions Mr McBride's interpretation of the legislation. In [4.4] of his submission Mr Willson states: We want to know if Parliament decided to endorse unlawful executive behaviour and, in such a way that means if claimants got screwed under the 1992 and 1998 Acts, they stay screwed. We want to know if only those who gain retrospective cover and entitlements under those Acts, can file late applications for review, yet those already covered under those Acts cannot [75] Mr Willson has also stated with respect to Costs "This is simply to put this matter on the table". [76] With respect to discretion Mr Willson states that what is at stake is hardly modest, as the application goes to the integrity of the system. He states: The applicant receives no entitlement to an Independence Allowance because a covered injury was flagrantly, unlawfully, knowingly and deliberately ignored by an assessor, applying a since much-discredited corporate policy - not because of deduction of a meagre lump sum under the 1982 Act. She would have a right to updated entitlement under transitional provisions and there have been further injuries. [77] He continues at paragraph 7.4: This is not a creature of statute simply obeying the rules. It is the action of a venal and litigious Corporation in the business of denial. [78] He concludes: We say that on the contrary, on conventional grounds, that parliament intended that all claimants under all Acts were now to have an equal right to make late applications for review and appeal. That has less to do with creating retrospective rights than giving effect to the general policy of amending legislation. Discussion [79] The appeal decision of Judge Maclean of arose from the application filed by the applicant for review of a 1999 decision relating to an independence allowance. Though the initial decision declining an independence allowance was made by the Corporation in 1999, the applicant sought a review of that decision on 24 February 2015. [80] The Corporation on receipt responded by writing to the applicant on 18 March 2015 advising there was no jurisdiction to seek a review because there was no ability under the 1992 Act to extend the time for review beyond the statutory three month period. Notwithstanding this the Corporation allocated a Reviewer, while also recording its view that there was no jurisdiction. [81] This appointment follows the requirements set out in s 137(2) that: As soon as practicable after receiving an application for review the Corporation must arrange for the allocation of a reviewer to the review even if it considers there is no right of review in the circumstances. The Corporation accordingly fulfilled this mandatory requirement. [82] Mr Willson declined to separately challenge the letter of 18 March 2015 and asked the reviewer to consider jurisdiction to entertain the 24 February 2015 late review application of the original matter. [83] This was the review that was undertaken. The issue is set out in the review officer's report of 3 September 2015 where it states: Issue: The issue is whether Ms Kereama has lodged a valid application for review of ACC's decision dated 19 May 1999. ACC submits that the application was out of time and accordingly that there was no jurisdiction to consider it. [84] These steps are properly recorded in Judge Maclean's judgment of 8 August 2016. [85] Judge MacLean also sets out at the commencement of his judgment the fact that the appeal is of a jurisdictional nature and the legislation which is applicable. He states: [2] On 19 May 1999, the respondent issued a decision declining an Independence Allowance, coupled with advice of review rights. That was pursuant to a lump sum having been awarded under the 1982 Act, based on initially a 15% loss for impairment and a subsequent 1998 Act assessment of 10%. No application to review was made within the then applicable time frames. 3] The applicable Act in force at that time was the Accident Rehabilitation and Compensation Insurance Act 1992 ("the 1992 Act"). Both the 1992 Act and the subsequent Accident Insurance Act 1998 ("the 1998 Act") required any review application to be made within three months. Unlike the present Act, there was no provision for extension of time and that provision only came into force under the present Act with an ability to extend the three month time limit contained in s 135(3) of the present Act, if there were extenuating circumstances. [86] The appeal in respect to the Review decision lodged on 18 August 2015 by the applicant states that the specific grounds for appeal is "The Substantive matter, being a Decision that there is No jurisdiction to hear a late Application for Review of a Decision under former Acts". It is stated that the decision is wrong and that s 354 of the Act provides that Part 3 applies to all claims received on or after 1 April 2002 for cover and entitlements in respect to personal injuries suffered before that date. Further, s 391 (4) provides that all applications for review made after 1 April 2002 are subject Part 5, Review and Appeal. [87] Judge MacLean succinctly sets out the relevant sections to the jurisdictional issue in his decision. He accepts it is a common ground between the parties that the review provisions of s 86 of the 1992 Act have been consistently found by decisions to mean there is a mandatory requirement for any review to be filed within the stipulated three month period with no discretion and that this also applied to the 1998 Act. He refers to the fact that the present 2001 Act provides for a discretion to potentially extend the time for review as set out in s 135. [88] The Judge also refers to Part II of the Act, headed Transitional Provisions Relating to Entitlements provided by the Corporation. The purpose of this is set out in s 352. [89] He also refers to s 354, which states that Part 3 of the Act applies to all claims received on or after 1 April 2002 for cover and entitlements in respect to personal injuries suffered before that date. [90] At paragraph [18] of his decision, Judge MacLean states Part 3 of the Act also includes s 48, and this states: 48 Person to lodge claim for cover and entitlement A person who wishes to claim under this Act must lodge a claim with the Corporation for- a) cover for his or her personal injury; or (b) cover, and a specified entitlement, for his or her personal injury; or (c) a specified entitlement for his or her personal injury, once the Corporation has accepted the person has cover for the personal injury.is already entitled to receive weekly compensation; and [91] At paragraph [19] of the decision Judge MacLean states, Part 3 also includes s 53 as stated: 53 Time for making claim (1) A person must lodge a claim with the Corporation within the time limit specified in this section. (2) The Corporation must not decline a claim lodged after the time limit specified in this section on the ground that the claim was lodged late, unless the claim's lateness prejudices the Corporation in its ability to make decisions. [92] Judge MacLean at paragraph [20] set out the text of s 391 of the present Act with respect to matters potentially involving different iterations of the 1992, the 1998, and the present Acts. [93] Judge MacLean sets out the respective positions of both parties. [94] In respect to the present applicant's position he states: [23] The underlying substantive merits submission of the appellant's submission can be summarised namely that there must be an ability for what is seen to be an inherently unlawful and improper finding by the respondent to be challenged and tested utilising the enabling extension provisions of the present Act. [95] This is opposed to the respondent's position that: The present Act did not confer any new review rights where they had arisen under a previous Act and had lapsed [96] His Honour's reviews the case law and accepted legal textbook as to be authorities and principle of the presumption against retrospectivity and this leads him, in paragraph [42] to state "there is a clear line of authority supportive of the respondent's submission". [97] In respect to the notification by the Corporation of 18 March 2015 of non- acceptance of the late application, Judge MacLean states at paragraph [43] "[this] was not a reviewable decision but simply a statement of the legal position". [98] Accordingly, both the decisions of the Reviewer and the District Court concur as to the lack of jurisdiction authority for retrospective application of s 135(3). Conclusion [99] I find there is no issue of law which arises for the challenged decision. [100] I do not find that there are any bona fide or credible issues of law that can be identified which would require leave to be granted as there is clear and well established authority for the decision made by the learned Judge. In addition, it is accepted that this issue is merely a transitional one and that the present Act has been in full force since 1 April 2002. [101] In addition I note Mr McBride's submission that the applicant's inordinate and unexplained delays to exercise jurisdiction have not at any stage received judicial attention and I find there is no wider public interest in the particular issue before the Court. [102] Accordingly, the application for leave is refused. [103] There is no issue as to costs. Judge J H Walker District Court Judge Solicitors: McBride Davenport James, Wellington ACR 285-15-Kereama-LTA