Winstone Aggregates Limited v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 1 1 6 196 HELD AT CHRISTCHURCH 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 WINSTONE AGGREGATES LIMITED Appellant (Appeal No. DCA 299/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 9th day of October 1996 J G Greene advocate for appellant P J Zumbach for respondent DECISION OF JUDGE D A ONGLEY This is an appeal against a decision of a Review Officer that a claimant suffered industrial deafness while employed by the appellant. The point at issue concerns the procedural correctness of the conduct of a review hearing at which the appellant claims to have been denied his right of audience. After filing the appeal, the appellant filed an interlocutory application to have the whole matter referred back to review proceedings for re-hearing. The appeal was set down by the Court to deal with all questions together. After hearing argument on the procedural point raised in the interlocutory application I indicated that the appeal would be allowed and reasons given in writing. The review was commenced on 10 September 1993. That hearing simply resulted in a direction to the parties and it is no longer of any concern. A review was conducted by - 2- Review Officer Mrs E G Roche on 15 September 1994. Evidence was given by Mr H C Wortman, commercial manager of the appellant. The appellant and the respondent were represented at the hearing. The review officer gave an interim decision on 21st September 1994. She referred to the evidence including oral evidence, expert reports and specialists' opinions. She referred to the submissions that had been made at the review hearing and she recorded that the respondent agreed to a further hearing loss assessment report being obtained. She gave directions and adjourned the matter for the report and said: "If there is remaining disagreement between the parties following the proposed course of action, then the matter is to be referred back to me for further directions. It may be that a final decision can be made on the papers, or it may be necessary to reconvene the hearing." When the report was obtained, the parties were not able to settle the matter. The appellant's advocate wrote to the Corporation asking for a decision. The appellant says that those letters were directed to obtaining a decision from the Corporation to enable the dispute to be settled, not at obtaining a decision from the review officer without further hearing. The appellant says that it expected to be consulted on the question whether there was to be a further hearing or a determination on the papers. The review papers were eventually placed before another review officer who considered them and gave a decision dated 24th November 1995 without having held any further hearing, and without having invited the appellant to dispense with a hearing or to make further written submissions. The course was taken because the former Review Officer was no longer engaged in Accident Compensation reviews. The appellant was not told that the first Review Officer was no longer available and the review was to be determined by another Review Officer. I am satisfied that the process was improper. If Mrs Roach could not be appointed to complete the part- hearing, then the proper course would have been to convene a new hearing and to allow the parties to be heard again. It is possible that the original Review Officer had formed impressions of credibility that may have affected her decision. The manner in which the hearing was conducted may have given emphasis to certain questions of fact relevant to the final decision. The hearing officer who took the matter up on the papers could not be assumed to have received the evidence and argument in the way it was intended to be put and in the way it was put to the original Review Officer. I am satisfied that the appellant has been denied his right of audience before the review officer who decided the review. The appeal is therefore allowed and the appellant will have costs of $500. DATED at WELLINGTON this 18 th day of October 1996 D A Ongley District Court Judge