Estate of Gilmour v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HAMILTON Decision No. 104 95 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN THE ESTATE OF RAEWYN 59 94 / 0146 GILMOUR of Hamilton Appellant (Appeal No. DCA 291/94) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 7th day of August 1995 APPEARANCES T Gunn for Appellant A D Fawcett for Respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is the meaning of the word "spouse" under s.3 of the Accident Rehabilitation and Compensation Insurance Act 1992. By consent a statement of evidence by Ms Bramwell was accepted by the Court. While the appeal had initially related to the definition of "spouse", it had also included a request for definition of "child", but Ms Gunn confirmed that that was not now to be an issue before me. Ms Gilmour, who had been living in a lesbian relationship with Ms Bramwell, died on 12 March 1994 in a motor vehicle accident. Ms Bramwell applied to the 2 respondent for awards under the Act based on her claim that she was "to all intents and purposes Ms Gilmour's spouse". The respondent declined the application on 13 April 1994 on the grounds that the definition of spouse in the Act was not sufficiently wide to include a lesbian relationship. Ms Bramwell applied for a review of that decision and the Review Officer upheld the respondent's decision. This appeal followed the issue of that decision. Ms Gunn provided me with lengthy submissions in which she made reference to the definition of spouse under the 1992 Act and the fact that, in her view, the definition constituted a breach of the Human Rights Act 1993 and of the New Zealand Bill of Rights Act 1990. She suggested that the Court should give acknowledgement to her submissions so that it would justify further attempts to have the legislature broaden the definition of spouse in the 1992 Act. Mr Fawcett submitted that the definition of "spouse" in s.3 of the 1992 Act is clear and unambiguous and refers to "a person of the opposite sex". He submitted that on that basis, the Court could only be concerned with whether or not the appellant was entitled to cover within the narrow meaning of the definition as contained in the 1992 Act. He submitted that as a result and of Ms Bramwell's evidence, it was not established that Ms Bramwell was financially dependent on the deceased and Ms Gunn conceded that she did not pursue that argument. The only issue before me was, therefore, whether or not Ms Bramwell was a spouse within the meaning of the Act. If the appeal is to succeed, and I took it from Ms Gunn's submission that she did not consider that it could, it must be shown that Ms Bramwell comes within the definition of "spouse". Section 3 defines spouse as: "Spouse", in relation to a deceased person, means a person - - (a) To whom the deceased person was legally married immediately before his or her death; or b) Of the opposite sex with whom the deceased person was in a relationship in the nature of marriage immediately before his or her death - -. but does not include any person to whom the deceased person was legally married or with whom the deceased person was in a relationship in the nature of marriage, if they were living apart at the time of the deceased person's death and the deceased was not contributing financially to the person's welfare, unless the parties were living apart principally because of the health, imprisonment, or employment obligations of either of the parties." I agree with Mr Fawcett's submission that to come within the definition, Ms Bramwell must be a person "of the opposite sex" from the deceased and clearly she is not. While I appreciate that Ms Bramwell wishes the Court to make a statement in relation to the alleged failure of the legislature to have regard to the Bill of Rights Act and the Human Rights Act when drafting the 1992 legislation that is 3 not within the prerogative of the Court. If the appellant wishes to pursue those issues then they must be taken in a different jurisdiction. The appeal is dismissed. DATED at WELLINGTON this 23' day of August 1995 A W Middleton District Court Judge dc291-94.doc(rd)