SR v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 81 / 96 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND 19/96 55/8 IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN SHAUN RYAN of New Plymouth Appellant (Appeal No. DCA 135/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE A W MIDDLETON ON THE PAPERS I have received submissions from Mr S M Harrop for the appellant and from Ms GS Hancock for the respondent with the request that I issue a decision on the papers. The issue before me is whether the appellant was ordinarily resident in New Zealand in terms of the Accident Rehabilitation and Compensation Insurance (Ordinary Residence Definition) Regulations 1992 at the time it is alleged he suffered sexual abuse. The facts which give rise to the appeal are that a claim for sexual abuse was lodged with the respondent on 31 July 1994 and the claim stated that the injury had taken place in 1994 in Australia. A subsequent report from a counsellor stated that the abuse occurred "at age 4 years in Australia while living with his mother and her partner Eddie". Subsequent evidence disclosed that the appellant and his mother had travelled from her New Plymouth home using her New Zealand Passport to visit Australia on the following occasions: 2 Visit 1 5 July 1992 - 6 April 1993 (9 months) Visit 2 26 April 1993 - 17 September 1993 (5 months) Visit 3 29 October 1993 - 18 February 1994 (4 months) Visit 4 14 June 1994 - 12 August 1994 (2 months) The appellant's mother is a New Zealand citizen and has a home in New Plymouth. It appears to be accepted that the mother's relationship with Eddie had developed during her first visit to Australia and that the subsequent visits were made to see him, but the relationship deteriorated after the first visit. It appears that the alleged abuse occurred on the third or fourth of the visits mentioned. On 13 October 1995, the respondent notified the appellant's mother, as his guardian, that his claim for cover was declined "as the incident did not occur in New Zealand". The appellant applied for a review of that decision. At the review hearing the appellant was represented by Mr Harrop who presented submissions on the basis that the appellant, being the son of a New Zealand citizen whose permanent place of abode was in New Zealand, qualified for cover under the Accident Rehabilitation and Compensation Insurance Act 1992. The review officer held that on the evidence that the abuse appeared to have occurred on either the third or fourth of the visits to Australia, it was then necessary for him to determine whether at those times the appellant could be considered to have been a New Zealand resident. He accepted that the appellant is a dependant of a New Zealand citizen whose permanent place of abode was New Zealand with the result that he met the requirements of Regulation 3(1)(a) and (c) of the regulations. However, he held that he had to consider absence from New Zealand in terms of Regulation 3(2) and concluded that as the appellant did not meet the requirements of that regulation, the application for review had to be declined. The issue involves an interpretation of the regulations and in particular Regulation 3 which states: "3. Definition of term "ordinarily resident in New Zealand" - (1) For the purposes of the Act, the term "ordinarily resident in New Zealand", in relation to any person, means - (a) Any person who is a New Zealand citizen and whose permanent place of abode is in New Zealand, whether or not that person also has a place of abode outside New Zealand; or (b) Any person - i) Who holds a residence permit granted under section 35 of the Immigration Act 1987; or (ii) Who is exempt from any requirement to hold a permit under the Immigration Act 1987 - 3 and whose permanent place of abode is in New Zealand, whether or not that person has a place of abode outside New Zealand; or (c) Any person who is a spouse, child, or dependant of any person referred to in paragraph (a) or paragraph (b) of this subclause, and who generally accompanies the person referred to in paragraph (a) or paragraph (b) of this subclause. (2) Subject to subclause (4) of this regulation, a person who is absent from New Zealand shall be deemed to have a permanent place of abode in New Zealand if that person has been personally present in New Zealand for a period or periods exceeding in the aggregate 183 days in the 12-month period immediately before last becoming absent from New Zealand. (3) For the purposes of subclause (2) of these regulations, where a person is personally present in New Zealand for part of a day, that person shall be deemed to be personally present in New Zealand for the whole of that day and not to be personally absent from New Zealand for any part of that day (4) Subject to subclause (5) of this regulation, a person shall be deemed not to have a permanent place of abode in New Zealand if that person has been and remains absent from New Zealand for more than 6 months or intends to be absent from New Zealand for more than 6 months. (5) A person shall not cease to have a permanent place of abode in New Zealand by reason of absence from New Zealand primarily in connection with the duties of that person's employment, the remuneration for which is treated as income derived in New Zealand for New Zealand income tax purposes, or for 6 months following the completion of the period of employment outside New Zealand so long as the person intends to resume a place of abode in New Zealand" By virtue of s.8(3) of the Accident Rehabilitation and Compensation Insurance Act 1992 a person is entitled to cover for personal injury that is mental or nervous shock suffered by that person as an outcome of any act of any other person performed on that person and the act was performed in New Zealand or outside New Zealand where the person upon whom the act was performed was ordinarily resident in New Zealand when the act was actually performed. Regulation 3 provides the definition of "ordinarily resident in New Zealand". Mr Harrop submitted that he accepts the finding of the review officer that the appellant was a dependant of a New Zealand citizen who had a permanent place of abode in New Zealand for the purposes of Regulation 3(1). He submitted that in considering the application it is necessary to view Regulation 3 as establishing a "prima facie" qualification as a person ordinarily resident in New Zealand and that once that is established it is necessary to look at the other subclauses in Regulation 3 to ascertain whether that initial prima facie conclusion is to be varied. He submitted that the review officer was correct in the conclusion that the appellant was prima facie ordinarily resident in New Zealand in terms of Regulation 3(1). He submitted that Regulation 3(1) is not said to be subject to any other subclause in Regulation 3 and that none of them purport to define "ordinarily resident in New Zealand". Mr Harrop submitted that the other subclauses merely clarify but do not define the meaning of the phrase "permanent place of abode". On the basis of that 4 submission he considered that Regulation 3 purports to define the term "ordinarily resident in New Zealand", but does not purport to define the phrase "permanent place of abode", so that those latter words where used in Regulation 3(1) must bear their natural and ordinary meaning. In his submission, as the review officer had determined that the appellant had a permanent place of abode in New Zealand there was no need to go beyond that to ascertain whether he had cover under the Act. Ms Hancock submitted that the finding of the review officer was correct. She submitted that the expression "permanent place of abode" must in the absence of expressed definition be determined from the regulations as a whole. In her submission Regulation 3(2) means that where a person has been personally present in New Zealand for a period exceeding the aggregate of 183 days in the 12 month period immediately before leaving New Zealand that person is deemed to have a permanent place of abode in New Zealand and that Regulation 3(4) provides that where a person is absent from New Zealand for more than 6 months or intends to be absent from New Zealand for more than 6 months that person is deemed not to have a permanent place to abode in New Zealand. She submitted that on that basis a person has a permanent place of abode in New Zealand as long as they have spent 6 of the preceding 12 months in New Zealand. She submitted that as the appellant and his mother left New Zealand for Australia on 29 October 1993 being the third period spent in Australia, they had spent an aggregate of approximately 62 days in New Zealand in the 12 months immediately preceding their leaving the country. She submitted further that on the fourth visit to Australia the appellant and his mother had spent an aggregate of 158 days in New Zealand in the 12 month period immediately preceding their leaving. She submitted that in respect of each of those periods it had to be concluded that the appellant's permanent place of abode was not New Zealand. While Ms Hancock made submissions in relation to the Income Tax Act 1994 I agree with Mr Harrop that they are not relevant to the argument. I consider that Regulation 3(1)(a) is simply a general qualifying statement that any New Zealand Citizen whose permanent place of abode is in New Zealand is deemed to be "ordinarily resident in New Zealand", notwithstanding that that person may have another place of abode outside New Zealand. Regulation 3(2) then covers the position of a New Zealand resident who is absent from New Zealand at a time when that person is seeking cover under the Act. I consider that Regulation 3(2) must necessarily be read as being specific to a person who might normally fall within the ambit of Regulation 3(1)(a), but for some reason is out of New Zealand at the specific time. I consider that the legislature has seen fit to provide specific criteria for the definition of permanent place of abode where a person leaves New Zealand for whatever purpose. If such a person claims cover under the Act while absent from New Zealand then such a person must come within the ambit of Regulation 3(2) in order to qualify for cover. I agree with Ms Hancock's submission and with the finding of the review officer that Regulation 3(1)(a) must necessarily be subject to the restrictions imposed by 5 Regulation 3(2) and that accordingly this appellant does not qualify for cover. The appeal is dismissed DATED at WELLINGTON this 12 thday of September 1996 A W Middleton District Court Judge dc135-96.doc(rd)