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Accident Compensation Cases

Frew v Accident Compensation Corporation (DC, 26/11/02)

Judgment Text

Judge M J Beattie
The issue in this appeal is whether the appellant still retains a right of review of a decision made by the respondent on 21 August 1995. 
The facts relevant for the determination of this issue may be shortly stated as follows: 
At the material time the appellant was an employee/shareholder of his building company G E Frew Limited. In September 1994 he had suffered a back injury which caused him to be disabled. He sought weekly compensation for the period of his disablement. 
In the application for entitlement his accountant provided particulars of his previous four weeks' wages and it was on that advice that the respondent determined the amount of his weekly compensation entitlement. 
Subsequently the respondent received advice from the Inland Revenue Department that the appellant's earnings for the year-ending 31 March 1994 were considerably less than the income advised when the appellant applied for weekly compensation. 
In the light of that information the respondent recalculated the appellant's entitlement to weekly compensation and advised him of this new calculation in a document dated 16 August 1995. That document advised of rights of review. 
On 21 August 1995 the respondent advised the appellant that he had been overpaid the amount of weekly compensation by an amount of $5,503.42 and that it was raising a debt for same pursuant to s 77 of the 1992 Act. That letter did not contain any advice of a right of review of that decision. 
The appellant took no step in relation to either of the respondent's two letters. 
The respondent did not follow-up its letter claiming recovery of the debt until it commenced proceedings for same in the District Court in 2001. On 5 February 2002 a Judgment was entered for the respondent for that overpayment. 
On 29 March 2002 the appellant lodged an application for review of the respondent's decision of 21 August 1995 raising the debt. 
That application for review was heard on the papers and in a decision dated 22 May 2002 the Reviewer found that the appellant had been given full details of review rights by the respondent in its advice of 16 August 1995 regarding the recalculation of his weekly compensation and that this satisfied the provisions of s 67(2) of the Act regarding the giving of notice of review rights. The Reviewer therefore held that the appellant's application for review was out of time and was dismissed. 
In his submissions to this Court Mr Frew contended that he did not owe the respondent any money but rather it owed him the sum of $776.00. He also contended that he had been honest in the advice he had given the respondent regarding his financial situation and he had correctly identified himself as a shareholder/employee of his company. 
Mr Frew further submitted that the amount he had advised the respondent as being his income at the time, namely $650.00 per week, was correct and it was only that out of that sum he was required to pay certain running costs and these were taken out of his salary, which at the end of the year meant that he had a less sum by way of income. He considered that it was his decision whether he would put some of his wages back into his business. Finally the appellant submitted that the respondent was estopped from claiming the money back because it had been their mistake and eight years had now elapsed. 
Miss Ahern, counsel for the respondent, submitted that the legal position was clear in that the provisions of s 89(5) required an application for review to be lodged within three months of the decision in respect of which a review is sought and that this Court has held in a number of decisions that that three month period was to be strictly construed. 
Counsel further submitted that the omission of the respondent to advise of review rights in its decision letter of 21 August 1995 was cured by the fact that it had given full advice on rights of review in its decision letter of 16 August 1995. Counsel submitted that the Court had no jurisdiction to now consider the correctness or otherwise of the debt claimed by the respondent in its decision of 21 August 1995. 
The respondent's decision which is the subject of this appeal was its letter of 21 August 1995 wherein it advised the appellant that there had been an overpayment of his weekly compensation in the light of his IRD return for the relevant year. 
The Court has been provided with that decision letter and it is clear on the face of it that the respondent was demanding payment of the amount of the claimed overpayment. The Court has also been provided with the reassessment of weekly compensation which was forwarded to the appellant on 16 August 1995 and which showed that the average weekly earnings from which weekly compensation was to be calculated was $325.00, whereas initially those earnings had been stated as being $650.00. 
The accompanying advice to that reassessment stated as follows: 
“If you are not satisfied with this decision, or there is something you do not understand, you should contact us immediately and discuss your concerns. Our staff will explain the decision and also explain your right to ask that the decision be reviewed. If you want the decision to be reviewed a request must be made in writing using a special form which is available from our office. The written request must be received within three months from the date of this letter. ”
It is a fact that no such request for review was made until the appellant filed same on 29 March 2002. 
If the respondent's letter of 21 August 1995 had been the only advice which the appellant had received at or about that time relating to decisions of the respondent, then the matter would be different from that which I am obliged to find it to be. Section 67 of the 1992 Act, which was the Act in force at the relevant time, requires the Corporation, when giving notice of a decision, to provide the person in writing with reasons for the decision and general information about the rights of review and appeal available under the Act if that general information has not been provided within the previous six months
On the facts of this case this appellant had been given full details of rights of review, that advice being given only five days earlier. Important, I find, is the fact that the decision of 16 August could be considered a major decision affecting the appellant in that it was advising him that the amount of his weekly compensation thenceforth was to be half of what it had been hitherto. In such circumstances I find that it would be most unusual if the appellant had not read the document properly and thereby be informed of rights of review. 
Counsel for the respondent is correct when she submitted that the time limit for lodging an application for review provided in s 89(5) of the Act has been determined by this Court in many decisions to be a time limit that is to be strictly observed and that there is no provision for any extension of that time limit, such as there is in the corresponding statutory provision relating to appeals to this Court from the review decision. 
No such discretion for an extension of time was provided by that Act and therefore the position must be that the appellant is out of time with his application for review, and it must be the case that this Court has no jurisdiction to examine the issue which the appellant would seek to have the Court consider, namely the correctness or otherwise of the respondent's claim that the appellant is indebted to it in the sum of $5,503.42 by way of overpayment of weekly compensation. 
The fact that the respondent did not elect to pursue its claim in the civil jurisdiction in a timely fashion is not something which can aid the appellant and certainly no issues of estoppel can arise in circumstances where the respondent is merely seeking to exercise its statutory rights. 
For the foregoing reasons therefore the Court has no jurisdiction to consider the correctness or otherwise of the respondent's decision of 21 August 1995 and the decision of the Reviewer to so hold was correct. This appeal is dismissed. 

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