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Accident Compensation Cases

Wright v Accident Compensation Corporation (DC, 10/02/06)

Judgment Text

Judge J Cadenhead
The Issue 
The issue in this case is whether I have jurisdiction to entertain this appeal. 
The Narrative of Facts 
On 12 March 2004 the respondent issued a primary decision determining that the appellant was not entitled to an Independence Allowance. The appellant applied for a review from the respondent's decision in October 2004, which was outside the three months permitted to bring the application. A review hearing was conducted on 16 November 2004. A decision was issued by the reviewer on 24 November 2004 determining that the application for a review was late and the appellant had failed to demonstrate that there were extenuating circumstances justifying the late lodgement of the review application. 
The appellant filed an appeal from the review decision in the District Court, which came on for hearing on 1 July 2005. A decision was subsequently issued by the District Court on 5 July 2005. The District Court determined, in line with its decision in Knight (193/05) that as the respondent had not made a primary decision on the issue of the late review, the appropriate course was to remit the matter back to the respondent. The Court held, inter alia, at page four: 
“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 o the right of review. ”
The respondent provided the appellant with an opportunity to provide evidence on the issue. Following receipt of a letter from the appellant's general practitioner, Dr Stephen Harris, dated 28 June 2005, the respondent wrote to the appellant on 22 September 2005 to advise that the respondent was not satisfied that there were extenuating circumstances. The respondent gave the appellant rights of review to this decision. 
However, rather than lodging a review application, the appellant filed an appeal in the District Court on October 2005. The Notice of Appeal was dated 14 October 2005, which identified the review decision of 24 November 2004 as being the review decision from which the appeal was brought. 
Relevant legislation in s 149(1) of the Injury Prevention Rehabilitation and Compensation Act 2001 which reads: 
“A claimant may appeal to a District Court against — 
a review decision; or 
a decision as to an award of costs and expenses under s 148. ”
There is no right of appeal to a District Court directly from a primary decision. An appeal can only be brought from a review decision or from an award of costs made at review. It is clear that the appellant should have applied to review the subsequent decision dated 22 September 2005. There is no jurisdiction to entertain an appeal directly from that primary decision. However, it seems to me, the appellant was under a genuine misconception to his rights concerning that particular decision and it is noted he acted promptly in lodging an appeal. While it is not a matter for me, I would not be surprised if extenuating circumstances were found in regard to his further attempt to review that decision which is now out of time. I make no earlier comment on the earlier decision because that will be the substance of the review hearing. 
Accordingly, I strike the appeal out for want of jurisdiction. There will be no order for costs. 

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