Harris v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 354 199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN SUSAN ELIZABETH HARRIS of Dunedin Appellant (Appeal No. Al 106/99) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at DUNEDIN on the 4th day of November 1999 APPEARANCES/COUNSEL R W Harris (husband) for the appellant A Cecil-Gibson for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The appellant was the successful applicant in a review application in which the review officer considered that she was entitled to further home help. The review officer concluded that the appellant was not entitled to the payment of a sum of $695 as a contribution towards her solicitor's costs as her solicitor did not undertake the review hearing. The review officer concluded that she was only able to consider the question of costs pursuant to the Accident Rehabilitation and Compensation Insurance (Review Costs) Regulations 1992. The appellant has appealed against the decision not to allow the payment of costs. 2 Mr Harris submitted that in spite of several attempts to persuade the respondent to meet the appellant's claim for home help, that had been unsuccessful as a result of which he sought legal advice for which he had incurred the costs submitted to the review officer. Ms Cecil-Gibson submitted that the question of costs in relation to the review hearing is governed by the Accident Rehabilitation and Compensation Insurance Act 1992 because s.453 of the Accident Insurance Act 1999 continues Part XI of the 1992 Act in force where an application for review is filed before 1 July 1999. As the application for review was filed on 21 June 1999 the review officer had to use the provisions of the 1992 Act when considering the question of costs. Regulation 3 of the 1992 Regulations provides: "(1) Where an applicant is represented at a review hearing or a representative prepares and lodges the application or prepares the case for review hearing, the costs that may be awarded to the applicant under section 90(10) of the Act shall be the amount paid or payable by the applicant to his or her representative for one or more of the following: a) preparing and lodging the application for review, up to a maximum of $65; (b) preparing the case for review hearing, up to a maximum of $130; (c) appearing at a review hearing, up to a maximum of $85 for the first hour, $55 for the second hour, and $25 for the third and subsequent hours, not exceeding, in total, $270. (2) No costs shall be awarded to any applicant in respect of more than one representative." The issue then falls to be decided under Regulation 8 of the 1992 Regulations which provides: (1) The person hearing the review may, under section 90(10) of the Act, award to the applicant an amount or amounts, not exceeding in total $150, in respect of reasonable expenses paid or payable by the applicant and associated with the hearing of the review. (2) The power conferred by this regulation is in addition to the powers conferred by regulation 3 of these regulations; but nothing in this regulation authorises the making of an award in respect of any category of costs or category of expenses to which any provision of regulations 3 of these regulations relates." I agree with Ms Cecil-Gibson's submission that the question for the review officer was whether or not the appellant's solicitor was the appellant's representative who 3 prepared and lodged the review application, who prepared the case for the review hearing or who appeared at the review hearing. Regulation 3 sets the basis for calculation of costs on the review hearing had the solicitor undertaken that work. The situation was that the solicitor was not involved in any of those services and it was therefore correct for the review officer to make the offer to pay $150 to the appellant as provided by Regulation 8 of the 1992 Regulations. As has been held in a number of appeals it is not open to the Court to pay for solicitor and client costs in respect of services which did not involve participation in the review procedure. While Mr Harris's submission that it was necessary for the appellant to obtain legal advice in order to succeed, the legal representation did not carry on to the review proceedings. That then brought the situation within the Regulation 8 of the 1982 Regulations. While the appellant rejected the offer of $150, I confirm that that is the maximum to which she is entitled and to that extent the appeal will be allowed and the respondent is to pay the appellant the sum of $150 towards her costs in respect of the review hearing. I do not consider that any further costs are justified in respect of the appeal hearing. DATED at WELLINGTON this 3 ra day of Decemember 1999 A W Middleton District Court Judge Al1069.doc(rd)