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Accident Compensation Cases

Reckin v Accident Compensation Corporation (DC, 26/06/06)

Judgment Text

Judge M J Beattie
This is an appeal which, I am sorry to say, seems to be mired in a jurisdictional morass. Whereas Mr Young-Gough for the appellant seeks to have the Court make a determination on a matter of substance, Mr McBride for the Respondent, contends there is no jurisdiction for the Court to embark on the determination which the appellant would have, but that in any event this appeal is now moot as a subsequent decision of the respondent has now enabled the appellant, if he chooses, to explore the issue sought to be raised in this appeal. 
The background relevant to the observation I have made above may be stated as follows: 
The appellant has cover granted to him under the Accident Compensation Act 1982 for head injuries sustained in an assault in August 1991. 
On 6 July 1993, the respondent purportedly paid the appellant the sum of $5,100 by way of a Lump Sum in terms of Section 78 of the Act. 
On or about 10 November 1993 the respondent purportedly made an additional payment of $1,700 to the appellant as an additional sum under Section 78 of the Act and at the same time made a Lump Sum payment of $10,000 under Section 79 of the Act. 
Shortly after payment of that latter sum, the appellant went overseas and the respondent's file on his claim was effectively closed. 
In early 2002 the appellant sought an Independence Allowance in respect of his injuries and the 40% Disability Lump Sum Payment which had been paid to him in 1993 came into issue. 
The appellant advised the respondent's Hawkes Bay Branch that he had no recollection of receiving the Lump Sum Payments claimed to have been made. 
In April 2002 the respondent located its claim file and provided details of the Lump Sum Payments made to the appellant. The letter advised that the first payment was paid into the appellant's bank account at Postbank, Porirua, the second payment being paid to the appellant's bank account at Trust Bank, Paraparaumu Beach. 
For present purposes it can be stated that confirming information from those two banks, or their successors, has not been able to be obtained despite diligent enquiries and searching by the respondent for that purpose. 
The appellant was kept informed of the course of the inquiries as progress, or lack of it, was made. 
In May 2003 the appellant sought full particulars from the respondent of its investigations, stating inter alia — 
“As this matter of lump sum has been ongoing for some time I wish for clarification on this so it can be rectified urgently and amicably. ”
Documents provided to the Court do not disclose what the respondent's response may have been, but the next step was the lodging of an Application for Review by the appellant dated 13 June 2003 and received by the respondent on 20 June 2003. 
The respondent's printed form of Application for Review was used, but no decision being sought to be reviewed was stated. 
The reasons given for the application were stated as being “Lump Sum, all matters.” 
Mr Young-Gough had been appointed to represent the appellant and the Review was conducted by way of written submissions and dealt with by the Reviewer “On the Papers”
Whilst the submissions for the appellant sought to address the claimed lack of evidence relating to the payment of the Lump Sums and that the respondent should carry out further investigation, the respondent's submissions were to the effect that the evidence was insufficient to support the appellant's contention that he had not received the Lump Sum payments. 
In a decision dated 28 November 2003 the Reviewer determined to consider the matter only from a jurisdictional perspective and determined that there was no decision issued by the respondent which was capable of review as required by the Act. 
The Reviewer therefore declined jurisdiction but also stated — 
“Mr Reckin appears to have become frustrated by the lack of progress in the lump sum investigations and applied for a review. He can only apply for a review once a decision is issued. Until that action occurs there is no decision capable of review. ”
Following the filing of submissions by Mr Young-Gough on behalf of the appellant in support of the appeal, Mr McBride sought directions from the Court in relation to that appeal, as well as to other appeals involving the appellant. 
A pre-trial Conference took place before me on 30 May 2006. Mr McBride referred to the jurisdictional problem identified by the Reviewer, the fact that 1982 Act entitlements were in question, but that it was the respondent's intention to issue a reviewable decision in relation to the appellant's Independence Allowance application. Mr McBride sought that the appeal be adjourned accordingly to await developments under its proposed decision. 
Mr Young-Gough did not agree to an adjournment and contended that the respondent was proposing matters which would merely delay any redress to the appellant. He stated: 
“My client instructs that he wants the matter to proceed and that the Court should consider his submissions and the remedies sought at the scheduled hearing. ”
By Direction dated 30 May 2006, I determined that the appeal was to proceed on 8 June 2006 as currently structured, that is an appeal from the review decision dated 28 November 2003. 
By decision letter dated 2 June 2006, the respondent advised that the Independence Allowance entitlement to be paid to the appellant from May 2001 was to be calculated after deducting the 40% Disability Assessment for which a Lump Sum had been paid, and which was required to be deducted in accordance with Section 442 of the Accident Insurance Act 1998. 
At the commencement of the hearing of this appeal before me, I indicated to Counsel for the parties that I intended to adhere to my Direction given on 30 May 2006. It was within that context that Mr Young-Gough nevertheless urged the Court to make determinations relating to the Lump Sum, or make a direction to the respondent that it carry on further investigations to determine when and to whom the purported Lump Sum Payments were made. 
Mr McBride for the Respondent submitted that the Court had no jurisdiction to consider the substantive issue relating to the Lump Sum, but that in any event the appeal was now moot as the respondent had issued a reviewable decision which the appellant could pursue by way of a review, and if necessary appeal, as it related to the payment of the Lump Sum. 
The first point that needs to be made is that this Court has no jurisdiction to investigate the payment of Lump Sums in furtherance of the decisions that were made to pay same to the appellant back in 1993. Firstly, those were decisions made pursuant to the Accident Compensation Act 1982, and secondly, no review decision has ever been sought or had in relation to those decisions. 
The jurisdiction of the District Court to hear appeals from review decisions is contained in Section 149 and following of the Act, and the jurisdiction is confined to a consideration of the review decision sought to be appealed. 
The review decision itself is confined to being a consideration of a decision on a claim as that phrase is defined in the Act. 
It was the decision of the Reviewer, now under appeal, that there was no such decision within the meaning of the Act which was capable of review, but rather it was the appellant being dissatisfied with the steps which the respondent had been taking to identify the full details relating to payment of the Lump Sums. 
The position that the Court is faced with is that there is no decision to which it can refer or which it can determine was correct or not, save for determining the correctness of the review decision that there was no jurisdiction. 
I am satisfied that the Reviewer was correct in his decision. It is the case that the appellant cannot refer to a reviewable decision which would allow the issue of payment or otherwise of the lump sums to be brought under scrutiny. 
It is the case that the respondent has now issued a reviewable decision which has as an integral part of it the claimed payment of Lump Sums commensurate with an assessed disability of 40%, and as such is one of the issues which needs to be determined when considering whether the respondent's decision as to the quantum of the appellant's Independence Allowance entitlement is correct. I find that this is the only course that is available to the appellant in order to have the substance of his contention considered and determined. 
I foreshadowed this finding at the time of the Directions Hearing, and hence I made the direction in the terms that I did, but it seems as though that indication was not heeded. 
This Court, acting in its appellate jurisdiction under the Act, has no jurisdiction in the context of the present appeal to make any substantive finding as to whether or not the appellant received all or any of the Lump Sum Payments that is said to have been paid to him by the respondent in 1993, and any consideration of that issue will need to be undertaken in the context of a decision in which that matter is a relevant issue. 
As I see it, there are two options open to the appellant to achieve further progress in his quest. Either he can lodge an application for review of the respondent's decision of 2 June 2006, or he could at this late stage seek an extension of time to make an application for review of the respondent's decisions of 1993 as provided in Section 101(2) of the Accident Compensation Act 1982. 
Whilst those alternatives may seem to be two ways of seeking a review, the ongoing consequences would of course be different, in that any review decision sought to be appealed in the former, would come before the District Court pursuant to Section 149 of the 2002 Act, whereas any review decision issued under the latter, would thereupon be considered on appeal by the Accident Compensation Appeal Authority pursuant to Section 107 of the Accident Compensation Act 1982. 
In summary, therefore, I rule that this Court does not currently have jurisdiction to consider the substantive issue which the appellant seeks to have determined and that the review decision to that effect was correct. 
This appeal is dismissed. 

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