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Accident Compensation Cases

Belling v Accident Compensation Corporation (DC, 15/09/04)

Judgment Text

Judge J D Hole
The appellant has applied for leave to appeal to the High Court against the decision of His Honour Judge M J Beattie issued on 19 April 2004. 
The issue for determination by the learned Judge was if a decision by the Corporation's agent on 28 March 2003, that the appellant had a capacity for work, was correct. The agent had decided that the appellant had a capacity for work in six employment options. On 14 January 2004 the Reviewer modified the decision by identifying three employment options only for which the appellant had a capacity for work. 
In dismissing the appeal Judge Beattie determined: 
That the appellant had been provided with all rehabilitation assistance that could have been expected given the limitations imposed by the appellant and, accordingly, the Corporation was entitled to commence the work capacity assessment procedures when it did. 
That the three employment options confirmed by the Reviewer did match the appellant's previously assessed education, skills and experience. 
That s 115(1)(h) indicated that the Corporation was entitled to seek to assist the appellant's cessation of dependency on ACC and, accordingly, no improper motive could be ascribed to the Corporation by commencing the work capacity assessment procedure. 
That the medical assessment of Dr Kerr confirming the employment option of security officer could not be sustained as the doctor had qualified the nature of the job; however, in respect of the remaining two employment options, there was no clear or cogent reason for finding the assessment flawed. 
Application for Leave to Appeal 
Section 162 of the Act states: 
“A party to an appeal who is dissatisfied with the decision of the District Court as being wrong in law may, with the leave of the District Court, appeal to the High Court. ”
Thus appeals to the High Court must involve a point or points of law. There is no appeal to that Court on factual matters. 
The proper approach to the issue as to whether leave to appeal should be granted was stated by Doogue J in Impact Manufacturing Ltd v Accident Rehabilitation and Compensation Insurance Corporation and Stewart Burns (High Court, Wellington, AP 266/00, 6 July 2001). His Honour said that before special leave to appeal should be granted there had to be a point involved in the proposed appeal. This point had to be capable of bona fide and serious argument. His Honour then went on to consider what was a point of law: 
“What is a point of law? 
Whether or not a statutory provision has been properly construed or interpreted and applied to the facts is a question of law: Commissioner of Inland Revenue v Walker [1963] NZLR 339, 353-354 (CA); Edwards v Bairstow [1995] 3 All ER 48, 57; P & O Services (NZ) Ltd v ARCIC
Even where, as in this case, an appeal is limited to questions of law, a mixed question of law and fact is assailable as a matter of law: CIR v Walker, 354; P & O Services (NZ) Ltd v ARCIC, 6. 
It is well settled that a decision-maker's treatment of facts can amount to an error of law. There will be an error of law where there is no evidence to support the decision, the evidence is inconsistent with, and contradictory of the decision, or the true and only reasonable conclusion on the evidence contradicts the decision: Edwards v Bairstow, 57. 
The Court of Appeal in Lang v Eagle Airways Ltd [1996] 1 ERNZ 574, 576, cited Edwards v Bairstow in support of the following statement: 
If those conclusions were not reasonably open to the Judge then this Court can rule, as a matter of law, that they are unsustainable and should be set aside …  
Whether or not particular evidence is relevant to a particular issue is a question of law: Ogilvy & Mather (New Zealand) Ltd v Turner [1996] 1 NZLR 641, 651-652. ”
The question which arises is whether there is/are a point or points raised which is/are capable of serious argument. 
Appellant's Argument 
In the notice of appeal, three points are identified: 
The decision of 28 March 2002 was ultra vires. In the appellant's submission in support of this application this was re-phrased as follows: 
“As a matter of law was it open [sic] the Court to find as it did at paragraph 22 of the decision that the Respondent was entitled to take it that it had completed any Vocational Rehabilitation that it was liable to provide under the appellants IRP and therefore able to commence the WCAP process (paragraph 20)? ”
The respondent's occupational assessors were required to consider earnings, status and location when making vocational assessments. 
Did the respondent have the powers to administratively vary the statutory procedures for formulating an Individual rehabilitation Plan? 
Was the 28 March 2003 decision ultra vires? 
The argument raised by the appellant under this head seems to be twofold. First, that the Corporation was not entitled to conclude that the appellant had completed any vocational rehabilitation that the insured was liable to provide under the IRP when the insured had indicated that he was not interested in any ACC rehabilitation which might interfere with his own small farming enterprise which was partially funded by the Corporation. Second, that if it reached this conclusion it should have suspended the appellant's entitlements pursuant to s 116. 
However the first proposition is dressed up, it plainly involves factual findings. It does not raise any legal point capable of serious argument. 
The second proposition, likewise, does not raise any legal point capable of serious argument. Simply because there may have been another statutory path available to the Corporation does not prevent the Corporation from following the work capacity assessment procedure. Indeed, it can be argued that the Corporation chose the path most favourable to the appellant as it involved a full assessment of the appellant being undertaken rather than a rather arbitrary suspension as envisaged by s 116. 
Earnings, Status and Location 
The argument here seems to be that the definition of “rehabilitation” refers to such matters as the skills necessary for that degree of mental, social, and vocational function that will enable a person to lead as normal as life as possible. Accordingly, “earnings, status and location” are relevant considerations to be taken into account in the work capacity assessment process. The short answer to this submission is that it is clear from the statute that rehabilitation and the assessment for work capacity are very different processes. The latter is aimed at determining if a person is capable of working and the matters requiring consideration are detailed in the statute. These do not include a consideration of earnings, status or location. The point is not capable of serious argument. 
Can the Statutory Procedures for Developing IRPs be administratively varied? 
This point was translated in the appellant's submissions in reply as meaning “The matter is simply whether the respondent has correctly followed the statutory procedures for formulating the IRP”. Later, the submission states: “His Honour found as a matter of fact that the respondent had complied with the law in preparing the IRP. However, this finding relies on the substratum that the law allows the respondent to make variations of statutory procedures with impunity.” Counsel for the Corporation had difficulty in determining what the submission was. He concluded that it related to the alleged failure by the Corporation to provide adequate rehabilitation. This has already been dealt with in paragraphs 9 and 10. Indeed, however the submission is interpreted, it seems to involve a factual challenge to the decision. I am unable to discern from the submissions any identifiable point of law capable of serious argument. 
Should the appellant's legitimate expectation stop the Corporation from making a decision contrary to that expectation? 
This was another issue raised in the submissions. It was not something argued before Judge Beattie; it is not mentioned in the application for leave to appeal; and it should not have been raised now. 
From the submission the issue has something to do with the appellant's need for rehabilitation. Paragraphs 9 and 10 deal with this. 
Counsel for the Corporation, with greater perspicacity than I possess, identified the submission as suggesting that the appellant was arguing that where the Corporation has created some sort of “legitimate expectation” it should be bound from making a decision contrary to that expectation. Cases such as Len Wong-Kam v ARCIC (unreported, High Court, Auckland Registry, HC 97/99 15 December 1998, Laurenson J) have held that estoppel cannot force a statutory body to act ultra vires its statutory powers. This is well settled and the point does not raise any matter of serious argument. 
This application for leave to appeal does not raise any point worthy of serious argument in the High Court. Accordingly, the application for leave to appeal is declined. 

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