Maharaj v Accident Compensation Corporation (Leave to Appeal)

DISTRICT COURT AT AUCKLAND [2017] NZACC 141 ACR 94/10 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 SHANTA MAHARAJ Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: On the papers at Auckland Appearances: The applicant in person Mr Brownless for the respondent Judgment: 27 November 2017 JUDGMENT OF JUDGE DENESE HENARE Application for leave to appeal to the High Court [1] This is an application for leave to appeal a judgment of Judge L G Powell delivered on 6 December 2016. Judgment Appealed Against [2] The appeal before Judge Powell concerned the Corporation's decision dated 14 May 2008 suspending the applicant's entitlements on the basis his ongoing symptoms were not related to a covered injury sustained in an accident on 13 December 2006. [3] The Corporation lodged an application to strike out the appeal against the decision of 14 May 2008. In an oral decision of 25 November 2016' determining the application for strike out, Judge Powell referred to the procedural background to the appeal noting: 2] The appeal has had a protracted procedural history but in recent months there has been some considerable progress whereby a number of additional decisions have been made by the Corporation expanding the cover granted to Mr Maharaj, as well as making additional decisions with regard to Mr Maharaj's entitlements. [3] It is clear looking at these decisions that the Corporation had the clear expectation that following the issue of these decisions Mr Maharaj would withdraw the present appeal. [4] Mr Maharaj has not done so and instead asserts that there are a large number of issues that still require the consideration of this Court that pertain to the present appeal. [5] Against that background the Corporation has made the present application to strike out. The Corporation's application is made on the basis that "ACC has overturned its section 117 suspension decision which has been the subject of a review decision and has now been appealed to the District Court". [4] Judge Powell determined he was not satisfied the May 2008 decision had been revoked. He stated: [6] If that were the position it is clear that the appeal could not proceed. However, looking at the various decisions that have been made by the Corporation including the original suspension decision I am not satisfied that the original decision has in fact been revoked. As noted the original suspension decision related to Mr Maharaj's injury of 13 December 2006. In that decision the Corporation advised: ACC has looked carefully at all the information now available and has decided that your current condition is no longer the result of your personal injury of 13 December 2006. The medical evidence shows that the cause of your current condition is due to pre-existing degeneration changes. This means that you are no longer entitled to support from ACC. ACC has suspended all entitlements with effect from 25 May 2008. [2016] NZACC 307. [7] It is apparent that the subsequent decisions in relation to cover, entitlements and Mr Maharaj's ACC claims generally do not deal specifically with the issue of the suspension of Mr Maharaj's entitlements relating to his 13 December 2006 injury. On that basis alone this Court cannot strike out Mr Maharaj's appeal given that the appeal has been brought on the basis that that decision in relation to that injury is wrong. 5] Judge Powell determined a strike out order was inappropriate at that time and he went on to explain the next steps and stated: [8] Accordingly the Corporation's application cannot succeed. This then raises the question about what is the next step. Although a strike out order is inappropriate at this time, it is apparent that the recent decisions by the Corporation have substantially altered the landscape of the relationship between Mr Maharaj and the Corporation and to the extent that Mr Maharaj is unhappy with the Corporation it is in large part because of these recent decisions rather than the original 14 May 2008 suspension decision. As I have pointed out to Mr Maharaj in the hearing this morning those recent decisions of the Corporation are not able to be challenged in the context of the present appeal and given Mr Maharaj has indicated he has not separately challenged those decisions it is unclear on what basis those decisions could now be considered by this Court. If this appeal goes to hearing there is accordingly a real likelihood that the real issues between Mr Maharaj and the Corporation will not be able to be addressed. 6] Judge Powell noted if the Corporation formally revoked the 14 May 2008 suspension decision the inevitable consequence will be the appeal will not be able to proceed as the underlying basis of the appeal would have disappeared: [9] I canvassed the possibility of adjourning the present strike out application to enable the Corporation to formally revoke the decision of 14 May 2008 but this course of action is opposed by Mr Maharaj. On reflection I agree the present application for a strike out should be dismissed. However should the Corporation take steps to formally revoke its decision of 14 May 2008 the inevitable consequence will be that this appeal will not be able to proceed as the underlying basis of the appeal would have disappeared. ... [10] The upshot is that at the present time Mr Maharaj's appeal will proceed on a track to hearing at an Auckland circuit in the first part of 2017. If however the Corporation in the meantime revokes its decision of 14 May 2008 it is to advise the Court as soon as possible with regard to that step and I will issue further directions at that point. Obviously the later any revocation decision is left the more likely that the inconvenience may be reflected in a costs award and, as a result, the Corporation is encouraged to regularise the position as quickly as possible. [7] In his judgment of 6 December 2016, Judge Powell noted the new developments since his dismissal of the strike out application on 25 November 2016, that is by letter dated 29 November 2016 the Corporation formally revoked the May 2008 suspension decision. Judge Powell determined the Corporation's letter unequivocally revoked the original suspension decision. On this basis, there was nothing left to be appealed. Judge Powell set out his reasoning: [5] ...... The reason for this is that an appeal like Mr Maharaj's is against a review decision, in this case a decision made by a reviewer upholding the Corporation's decision following an application for review under s 134 (1)(a) of the Accident Compensation Act 2001. Accordingly, once the the underlying decision is revoked the review decision also ceases to have any effect, and there is therefore nothing left to be appealed. There is simply no longer any jurisdiction to proceed to the hearing of the appeal. [8] Judge Powell noted the applicant "does not dispute the effect of the revocation" and his concern is whether he can challenge the more recent decisions issued by the Corporation. Judge Powell noted Mr Maharaj will be seeking legal advice in relation to those decisions and explained: [6] .... That is entirely appropriate, but it is clear that regardless of the outcome of those enquiries the present appeal cannot be used as a vehicle to challenge those decisions, nor does this Court otherwise have jurisdiction to issue any directions with regard to those decisions which are not before the Court. [9] Given the circumstances of formal revocation of the suspension decision by the Corporation together with the fact the applicant had not withdrawn his appeal and would not agree to do so, Judge Powell made an order dismissing the appeal. The Case for the Applicant 10] In his submissions of 31 July 2017, the applicant submitted Judge Powell dismissed his appeal when it should have proceeded to hearing. [11] The applicant submitted: 2.2 The Judge erred in law and in fact in relying or wrongly relying on ACC's letter of 29 November 2016, which stated ACC was "reinstating your entitlements of the above claim" when: - (a) The letter was improper, incorrect and/or deceptive in its content; and (b) Reliance in any form should not have been placed on the said letter, the same not being a formal, binding or acceptable legal document. 2.3 The Judge erred in fact in establishing in law: [5] ... there is now no longer any substantive or jurisdictional basis on which Mr Maharaj's appeal can proceed" when: - (a) In fact the underlying original suspension decision dated 14 May 2008 has not been unequivocally revoked, as Judge erroneously stated in his decision [5] when in fact it is "partial revocation" not on the basis of primary decision and underlying findings at original appeal but based on "mental injury" outside the scope of this appeal. It is not a legal document within the parameters of the original appeal. (b) In fact legal costs in respect of the appeal have not previously been agreed between the parties as Judge erroneously stated in his decision [5]. (c) In fact entitlements to multiple physical injuries not reinstated and physical incapacities not reinstated from date of injury that are matters within the scope of this appeal that the appeal has not become extent. [12] The applicant also outlined in his submissions various concerns regarding the opinions of certain medical practitioners, the Corporation's management of the claim and actions of counsel for the respondent. Decision [13] Leave to appeal to the High Court is granted when a question of law has been raised which is "capable of bona fide and serious argument"2. [14] In his submission opposing the application for leave to appeal, Mr Brownless set out the background leading to Judge Powell's decision and his reasons for dismissing the appeal. LVK [2010] NZCA 618. [15] On the question of costs, Judge Powell had stated: [5] ... as legal costs in respect of the appeal have also previously been agreed between the parties the effect of the letter of 29 November 2016 is that there is now no longer any substantive or jurisdictional basis on which Mr Maharaj's appeal can proceed. [16] Mr Brownless submitted the Corporation accepted that legal costs had not been agreed between the parties. Mr Brownless submitted Judge Powell had relied on the Corporation's memorandum of 16 September 2016 which informed the Court that costs had been paid. Mr Brownless submitted Judge Powell interpreted this statement to mean that costs had been agreed. The applicant had not however, accepted the Corporation's offer of costs. Notwithstanding the Corporation had sent a cheque to the applicant in the amount of $2,500 for costs, counsel had received confirmation on 23 August 2017 that the cheque was never presented by the applicant. [17] Given that legal costs had not been agreed between the parties, it would be appropriate for the Court to exercise its discretion to recall judgment, to deal with the issue of costs' under Rule 11.10 of the District Court Rules 2014 which permits a recall of judgment in certain circumstances. [18] Having considered the issue of costs and a proposal to deal with them, I turn to consider the remaining two grounds raised by the applicant. [19] First ground - The Judge erred in law and in fact in wrongly relying on the Corporation's letter of 29 November 2016, which stated the Corporation was "reinstating your entitlements of the above claim". The applicant submitted the letter was improper, incorrect and/or deceptive in its content and reliance should not have been placed on that letter which was not a formal, binding or acceptable legal document. [20] This is a question of fact. Judge Powell considered the primary decision of 14 May 2008 and in my opinion was correct in finding it had been properly revoked. The 14 May 2008 decision suspended the applicant's entitlements on the basis that the injuries he suffered by accident in 2006 were not causing his ongoing symptoms. The 29 November 2016 decision replaced the 14 May 2008 decision by reinstating entitlements and accepting that a covered injury sustained by accident in 2006 was the cause of ongoing symptoms. Judge Powell explained that the applicant's appeal to the District Court was against a review decision which upheld the Corporation's decision. Once the underlying Corporation decision is revoked then the review decision also ceases to have any effect and there is nothing live in the appeal. [21] The second ground - The Judge erred in fact in establishing in law: [5] ... there is now no longer any substantive or jurisdictional basis on which Mr Maharaj's appeal can proceed. [22] The applicant refers to "entitlements to multiple physical injuries not reinstated and physical incapacities not reinstated from date of injury that are matters within the scope of this appeal". Judge Powell made plain that the revocation decision related to suspension of entitlements in respect to the applicant's covered injury and he noted the applicant did not dispute the effect of the revocation. His Honour noted the applicant's concern was whether he could challenge the more recent decisions issued by the Corporation: [6] ... as at the hearing before me Mr Maharaj's concern is whether he can challenge the more recent decisions issued by the Corporations and he has indicated that he will be seeking legal advice in relation to those decisions. That is entirely appropriate, but it is clear that regardless of the outcome of those enquiries the present appeal cannot be used as a vehicle to challenge those decisions, nor does this Court otherwise have jurisdiction to issue any directions with regard to those decisions which are not before the Court. [23] It is apparent in his submissions in support of the application for leave to appeal to the High Court, the applicant continues to be exercised by the Corporation's decisions made in respect to other "multiple physical injuries" which His Honour determined were not part of the appeal before him. [24] In my opinion, Judge Powell grappled with the issues of fact and law before him and gave reasons supporting his determination of them. I find there is no Horowhenua Country v Nash [1968] NZLR 632. A W 5] oral decision at [2] and [8]. question of law warranting consideration by the High Court that has been established by the applicant. Result [25] In this case, I am satisfied that no question of law warrants the grant of leave to appeal to the High Court. The matter of costs can be dealt with by a recall of the judgment. [26] Accordingly, the leave to appeal application is dismissed. Anese I terave Judge Denese Henare District Court Judge Solicitors: Medico Law, Auckland for the respondent ACR 94-10-Maharaj