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Accident Compensation Cases

Cribb v Accident Compensation Corporation (DC, 26/05/06)

Judgment Text

RESERVED JUDGMENT OF JUDGE J. CADENHEAD 
Judge J. Cadenhead
The Issue 
[1]
The issue in this case is whether or not the review decision of 26 July 2004 is correct. In that review decision the review application was declined because the appellant could not meet the statutory prescription of an “earner” as extended by the requirements of clause 44 of the First Schedule to the Injury Prevention, Rehabilitation, and Compensation Act 2001. 
[2]
There had been a later review decision concerning a letter of the respondent dated 26 August 2004 that confirmed that the respondent had not changed its decision upheld at review in respect to issues postulated under clause 43 of the First Schedule of the legislation. It seems reasonably clear to me that the legal issues postulated by Regulation 43 were not considered as part of the primary decision and review decision dated 26 July 2004. For that reason the view that I take is probably the review decision dated 15 December 2004 is incorrect, and that there was jurisdiction to hear and determine the primary decision contained in the respondent's letter of 26 August 2004. 
[3]
The issues have become a convoluted legal procedural tangle. In my view, the appellant should have appealed the decision of 15 December 2004 and not the earlier review decision of 26 July 2004. 
Outcome 
[4]
At the appeal hearing in front of me in regard to review decision 26 July 2004 the appellant accepted that that review decision was correct, and did not advance any grounds seeking to argue that the requirements of clause 44 of the First Schedule had been met. Rather, the appellant sought to argue that s 6 of the legislation, along with the provisions of clause 43 of the First Schedule of the legislation meant that at all relevant times the appellant was an “earner” in terms of the legislation. 
[5]
Having regard to the width that the respondent and the reviewer in the review decision dated 15 December 2004 have taken, that issue on that type of stance would be open for the appellant to take in the present appeal in front of me. However, as there have been no factual findings at review level on that particular issue, as I indicated at the appeal hearing, it would be difficult for me to reach a conclusion one way or the other. I have extensive powers of rehearing, but it would have been preferable if another primary decision was made dealing specifically with the aspects of clause 43 of the First Schedule, which should give review rights and then the matter could in a proper fashion (if necessary) be the subject of a proper appeal. 
[6]
I could, in the exercise of my rehearing powers, set aside time within which to hear the factual background. However, I am of the view that it is preferable that the primary facts are either found at the primary decision level or at a subsequent review hearing. 
[7]
Accordingly, I dismiss the appeal as it concerns clause 44 of the First Schedule, and direct that the issues concerning clause 43 be first determined at a primary level, when review rights should be given and then if necessary at a subsequent review hearing. 
[8]
The issue of costs is reserved. 

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