Brightwell v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 93 /2009 IN THE MATTER of the Injury Prevention, Rehabilitation and Compensation Act 2001 AND IN THE MATTER of an application for leave to appeal to the High Court pursuant to Section 162 of the Act BETWEEN WIREMU BRIGHTWELL (Al 389/07) Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent DECISION OF JUDGE M J BEATTIE ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT [1] The applicant has made application to the Court for the granting of leave to appeal to the High Court from the decision of His Honour Judge P F Barber, given on 4 September 2008 under decision number 200/08. [2] The Judgment of His Honour considered six review decisions, and each was considered and addressed individually in his Judgment. [3] The first review decision considered was Decision No. 51476, where the issue identified by His Honour was whether a final warning letter, dated 8 March 2007, from the respondent in relation to a debt owed by the appellant from an overpayment of home help was a reviewable decision. [4] The Judge noted that the letter raising the debt was issued on 30 May 2006, and it was that letter which was a reviewable decision. He ruled that the letter under appeal, namely the final warning letter of 8 March 2007, was not a decision within the meaning of s.6 of the Act, as it was an administrative function of the respondent only. 389.07 (pg) 2 [5] Whilst the issue, and the determination by the Judge can be said to be a question of law, I find that the matter is so settled in the way the learned Judge determined the issue, that it does not involve a question of law capable of bona fide and serious argument which should be referred to the High Court for further consideration. [6] The applicant, through his attorney, under an Enduring Power of Attorney, Mrs K Brightwell, did not address this matter in her submissions, but in any event I find that there is no question of law which ought to be referred to the High Court for further consideration. [7] The next Review Decision was No. 104411. This review decision had considered whether the applicant ought to be allowed to review the respondent's decision of 30 May 2006, determining an over-payment, as a late application for review in accordance with s. 135(3) of the Act. [8] In his decision Judge Barber noted that no evidence had been presented to the Reviewer by way of extenuating circumstances, within the meaning of s. 135(3). In his decision the Judge noted that no evidence had been presented which could give rise to a finding of extenuating circumstances. He noted that the applicant had been represented by experienced counsel and no explanation had been forthcoming. [9] I find the Judge's decision to dismiss appeal to be appropriate and to be a finding of fact not giving rise to a question of law which ought to be referred to the High Court for further consideration. [10] The third Review Decision was No. 102360, which was a decision in relation to the applicant's application for review of the respondent's decision of 30 May 2006 relating to the raising of a debt for over-payment. The Reviewer had determined that in the light of her decision in Review No. 104411, referred to above, she had no jurisdiction to consider the substantive issue of the respondent's letter of 30 May 2006, raising a debt for over-payment. [11] His Honour dealt with that decision as follows: "Having found in the earlier decision that no extenuating circumstances had been made out, the Reviewer, consequently decided in this decision that the application for review could not proceed further. In other words the Reviewer has decided that 3 she has no jurisdiction. I agree and dismiss this appeal from Review No. 102360. The s. 135 time limit for review has not been met." [12] In that decision His Honour was finding as a fact that the application to review the particular decision had not been made within the time limit provided for bringing an application for review, and he ruled that the Reviewer was correct to determine she had no jurisdiction. [13] The Judge's decision is wholly a question of fact, namely whether the application for review was brought within the three month time frame provided in the statute or not. That finding is not open to controversy and there is simply no basis for requiring this decision to be referred to the High Court for further consideration. [14] The next Review Decision was Decision No. 101973, where the issue was the respondent's decision to decline to fund housing modifications or to fund the purchase of a new property for the applicant. [15] The reason given for the respondent's decision to decline to fund the applicant's request for assistance was that he was then living in Lower Hutt but had expressed a wish to return to live with Whanau either in Gisborne or Taranaki and therefore consideration of the issue was premature. [16] The Judge noted that the respondent's position was that the respondent had in effect put the application to one side until the applicant had specifically identified where he would be living and had acquired accommodation in his location of choice, and at that time consideration would be given to any modifications that might be necessary to meet his needs. [17] The Learned Judge dealt with this issue as follows: "[38] I agree with Ms Lester that the practical way forward is for the appellant to soon confirm his intentions about where he intends to reside and then seek reassessment under s.84(3) of the Act. Then, the proposed modifications can be applied for, approved, and carried out. [39] In view of what the appellant tells me about his intentions as to residence the review decision No. 101973 is now historic. In any case the Reviewer's decision was appropriate in terms of the facts and issues before her at the time of the review hearing. This appeal against review decision no. 101973 is also dismissed." [18] There is certainly no issue of law which could be considered by the High Court, as both the Reviewer and the Judge on appeal have considered the matter from a practical perspective, and where the appellant's rights have not been dealt with in any adverse manner. There is certainly nothing which either the District Court, or indeed the High Court on appeal, could decide which would enhance the applicant's situation in terms of housing needs as of the date of the decision under review. [19] The next review decision was No.48308, and which decision quashed the respondent's primary decision relating to Independence Allowance Assessment. The Reviewer directed that a fresh assessment be carried out, taking account of the applicant's impairment due to his complex pain syndrome. [20] As noted by the Learned Judge: (41] There is nothing to be gained from pursuing this appeal because the Reviewer quashed the ACC decision in issue and the problem has been overtaken by subsequent events. The appeal against review decision number 48308 is dismissed. It would surprise me if the appellant's chronic pain condition is not a result of the 1993 head injury." [21] Again, there is no issue of law which requires to be referred to the High Court for further consideration. (22] The final review decision was Review No. 102361, which had been an application for review lodged by the applicant in accordance with s. 134(1)(b) where the applicant was alleging delay in the processing of a claim for entitlement and where it is contended that that delay was unreasonable. [23] The substantive matter was the applicant's request for certain social rehabilitation entitlements of Attendant Care and Home Help. [24] The Reviewer had found that the respondent had indeed made decisions in relation to those issues, and as it had made a decision, there was no continuing delay. The Reviewer had noted that no application to review the actual decision fixing the entitlement had been made. [25] The Judge simply endorsed the reasoning of the Reviewer stating "there was no evidence or argument before me to overcome the above decision which seems sound to me. In any case the issue seems to be historic". 5 [26] Again, I find that there is no question of law which requires consideration by the High Court. [27] By way of summary, I find that in none of the decisions of the Learned Judge has it been shown, or indeed could it be shown, that an important question of law was in issue, which was capable of bona fide and serious argument and as such should be referred to the High Court for further consideration. That is the essential test which must be established by an applicant seeking leave to appeal a District Court decision under the Injury Prevention, Rehabilitation and Compensation Act 2001. (28] No grounds for the granting of leave have been demonstrated in respect of any of the review decisions considered by the Judge, and I find that the lengthy written material provided by Mrs Brightwell on behalf of the applicant deals with matters quite unrelated to considerations which are relevant to an application under s. 162 of the Act. [29] For the reasons severally given above, leave to appeal the Judgment of His Honour Judge Barber to the High Court is declined. st DATED this 21 day of May 2009 Deaths M J Beattie District Court Judge