Free v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 9 /99 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN MARGARET TRAYNOR FREE of United States of America Appellant (Appeal No. DCA 191/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT The respondent has applied for leave to appeal to the High Court against the decision of His Honour Judge M J Beattie issued on 7 July 1998 under number 144/98. The application for leave was filed with the Registrar on 24 August 1998. The issue before the Court involved two matters, being: (a) the appellant's level of entitlement to attendant care; and (b) the appellant's level of entitlement to home help. The Court considered that the issue involved a valued judgement in the assessment necessarily made by trained professionals in order for the respondent to make awards in respect of both issues. The Court noted that the various regulations in relation to rehabilitation were rigid but that the respondent had departed from that rigidity by applying the provisions of section 26A and a policy direction issued 2 under the provision of that section. The Court considered that the basis upon which the respondent made its decision amounted to a diminishment of the entitlements to which the regulations would otherwise have provided for the appellant. The Court held that the assessment of the appellant's entitlement to home help was made on the basis of an improper exercise of the respondent's discretion in that the ability of the appellant's husband to carry out various tasks, which prior to the accident had been carried out by the appellant, should not have been taken into account. The appellant's counsel has submitted that while there is no time limit under section 97 for the filing of an application to appeal to the High Court the Court should consider the question of delay as the decision was issued on 7 July 1998 and the application for leave to appeal was filed on 28 August 1998. I do not consider that it should be rejected on the grounds of delay. The appellant has submitted that the respondent is merely seeking to leave because of the impact the decision will have in respect of the respondent's discretionary social rehabilitation policy rather than on any issues of law. The appellant also requests that if leave to appeal is granted it should only be done on the basis that the respondent will pay the appellant's reasonable cost for conducting the appeal and, in addition, will pay to the appellant the entitlements directed to be paid under the decision of this Court without the liability to repay in the event that the appeal succeeds. I consider that there is a question of law arising out of the interpretation of sections 26 and 26A of the Act and their relationship to the regulations which requires a decision by the High Court. I do not consider that this Court has the power to order the respondent to pay the costs of the appeal or to direct it to continue payment under the findings of the Court without liability for repayment in the event of the appeal succeeding. If that situation should occur then it becomes a matter for consideration under section 77. The application for leave to appeal to the High Court is granted. DATED at WELLINGTON this 27th day of January 1999 A W Middleton District Court Judge dca 191-97.doc (nr)