Teremate v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 146 /98 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN NGATOKOTORU TEREMATE DCA 292/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE M J BEATTIE ON THE PAPERS The issue in this appeal is whether the Corporation has any discretion to extend the time for filing an application for review beyond the three month period provided for in section 89(5) of the Act. This appeal was scheduled for hearing on the 17th of February 1998 but was adjourned by the Court firstly because the appellant did not appear, although she had indicated that she intended to do so, and secondly because the Court was 2 aware that the issue for determination was supposedly going to be considered by the High Court in the matter of Swann v ARCIC (Decision No. 47/97). The Registry has now been advised that the appeal in the Swann matter has been withdrawn, therefore it is appropriate that a final decision be made in this present appeal. In this case the Corporation did by letter dated 5th November 1996 advise the appellant that her Independence Allowance would cease as it was contended her ongoing disability was not related to the injury for which she was granted cover in 1994. That letter advised the appellant that if she wished to have that decision reviewed she was required to make written request, which must be received within three months of the date of the letter. In fact the appellant did by application dated 9th April 1997 seek a review of that decision. On 16th April 1997 the Corporation advised the appellant that it could not accept that application as it had been filed beyond the three months provided for in the Act. The appellant thereupon appealed from that decision to this Court. In written submissions to this Court the appellant sought to explain the reason why her appeal was "late" but the fact of the matter is that no matter how reasonable any excuse is for making application for review outside the three months time period, the legal position is that the provisions of the Act are mandatory and there is no discretion vested in the Corporation, or this Court on appeal, to extend that time period. This Court has been called upon to consider this question on a number of occasions and a number of Judges have all formed the view that there is no power to extend the time under section 89(5) of the Act. 3 Accordingly then, it not being in dispute that the appellant's request for review was made some two months after the expiration of the three month period, the Corporation's decision to not accept it was correct. This appeal is therefore dismissed. DATED at WELLINGTON this 7 day of July 1998 Death M J Beattie District Court Judge Tereman2.doc KD