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Accident Compensation Cases

Wright v Accident Compensation Corporation (DC, 05/07/05)

Judgment Text

Judge M J Beattie
The issue in this appeal arises from the decision of a Reviewer dated 24 November 2004 in which the Reviewer determined that the appellant could not make out extenuating circumstances, within the meaning of Section 135(3) of the Act, which would allow the late receipt of his Application for Review of a decision of the respondent of 12 March 2004 declining his application for an Independence Allowance. 
The hearing of this appeal came within a short time of an appeal which the Court heard in Tauranga where the appellant's advocate had made a submission of law that the practice carried out by the respondent when late applications for review were filed, was not in accordance with the requirements of the Act. 
At the hearing of this appeal today, Mr Tui confirmed that upon receipt of the appellant's Application for Review of the respondent's primary decision, the respondent did not itself make a decision as to whether there were extenuating circumstances or not, but rather referred the matter directly to a Reviewer to conduct a Review Hearing where that issue would be heard and determined. 
It is from that determination that this appeal was lodged. 
In my decision in the earlier case of Knight (193/05), I determined that the wording of Section 135(3) required the Corporation itself to make a determination of whether there were extenuating circumstances that affected the ability of a claimant to meet the time limit required under Section 135. 
In the Knight decision, I stated as follows: 
In the present circumstances it must be the case that the review procedure is a separate and specified procedure to kick in once a decision of the Corporation has been made with which a claimant would wish to take issue. That is clearly the case by reference to Sections 133 and 134 of the Act. Those provisions in my view preclude the review process from being the first stage of the decision-making process. 
It is equally the case that under Administrative Law principles there can be no delegation of a judicial or quasi judicial function. See Joseph, Constitutional and Administrative Law in N.Z., 2nd Edition at 809 et seq. The Corporation's function under Section 135(3) is clearly a quasi judicial function. 
The decision-making process required of the Corporation under Section 135(3) is not dissimilar to the primary decision it is called on to make where a claimant seeks relief on equitable grounds from having to repay an overpayment under Section 251(2) of the Act. 
Having found as I do that the required procedure has not been followed, it must follow that the review hearing and decision which followed it was not one which accorded with the requirements of Sections 133, 134 and subsequent. 
The ruling I have made is one relating to jurisdiction. The chain of jurisdiction commences with a decision of the Corporation on a claim which is sought to be reviewed — see Section 134. The next step in the chain is the right of appeal from the review decision to the District Court — see Section 149. 
That two stage process cannot be arbitrarily altered to a one stage process by way of waiver or consent, which cannot apply to questions of jurisdiction. See Wade and Forsyth, Administrative Law, 8th Edition at p.245. 
I have already observed that I find the plain words of Section 135(3) require the Corporation to itself make a determination as to whether or not extenuating circumstances can be established which would allow a late application for review to be accepted, and I find that the practice which the Corporation has adopted when this issue is raised is not in accord with the statutory requirements. 
I find and rule that if the respondent receives an application for review which is, on the face of it, a late application, then its obligation is to advise the applicant of that fact and then to invite the applicant to make an application for consideration of whether any extenuating circumstances within the statutory definition can be made out. 
Having received such information from the applicant as the applicant tenders, it is then a requirement of the Corporation to consider the matters so advanced and make a determination whether it is satisfied or not that those matters do amount to extenuating circumstances and to make a decision accordingly. That decision is, of course, a reviewable decision and advice of the right of review must be given to the applicant at the time. It is thereafter, should the applicant make application for review, that the Corporation's decision is then referred to a Review Officer for dealing with under the review provisions of the Act in the ordinary way. 
If the application for review is successful the Reviewer should then arrange to convene a further hearing to consider the substantive decision sought to be reviewed. ”
As I did in the Knight decision, I now direct that the Corporation consider afresh the appellant's application for late acceptance and to make a determination as to whether or not extenuating circumstances can be made out. It must then notify the appellant of its decision and give advice of the right of review. 
The appellant or his advisors are to be given the opportunity for making any further submissions on the issue that they may wish to do before any decision is made by the respondent. 
This appeal is successful and the Review Decision of 24 November 2004 is quashed. The respondent is now required to carry out the directions which I have made. 

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