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Accident Compensation Cases

Chand v Accident Compensation Corporation (DC, 21/04/08)

Judgment Text

Judge P F Barber
In a written ruling of 25 January 2008 (decision no. 20/2008) I dealt with an application for leave to appeal by the intended appellant against a 31 May 2004 decision of Judge Cadenhead (No. 150/04) which dismissed the appellant's appeal on the following threefold basis. First, that the appellant was not in “permanent employment” at the time of his incapacity; second, that income earned by the appellant in Australia could not be taken into account in calculating the appellant's weekly compensation; third, the appellant was not entitled to the payment of interest in respect of a backdated payment of weekly compensation. I ruled that issues one and three are not capable of bona fide and serious argument so that consideration by the High Court is not merited by them; and I dismissed the application for leave in respect of those two issues. I understand that, in the meantime, the intended appellant has applied to the High Court for special leave to appeal in respect of one of those two issues. 
In my said ruling of 25 January 2008 I dealt with issue two as follows: 
“Ground 2 — Income from Australia 
The appellant contends that he is entitled to have income received from Australia, prior to his incapacity, take into account to calculate his quantum of weekly compensation. He worked in Australia between 23 August and sometime in November 1998. I am not clear whether he has returned that income to the IRD in New Zealand. 
The Court noted that the review was adjourned for the appellant to obtain a ruling from IRD on the issue and the Court stated at paragraph [77]: 
‘The appellant later resiled from obtaining that ruling on the grounds that the IRD had required four years of earnings information from Mr Chand in order to be in a position to make its determination. That process was expected to take several months. More than 12 months have elapsed since the review hearing, and accordingly any ruling from IRD would now be available. ’”
The Court considered that the complexity of the Income Tax legislation necessitated a ruling from IRD on the issue. The appellant contends that the Income Tax legislation supports the fact that the Australian income can be taxed in New Zealand. I think that is very likely but need to have all the relevant evidence. Apparently, there has still now been any ruling from IRD on the matter. 
Mr Tui submits that whether or not overseas income is taxable in New Zealand must be determined by IRD under the Income Tax Act just as entitlements to compensation under the ACC legislation must be determined by the appellant; and that the appellant cannot seek a ruling within the ACC jurisdiction on tax liabilities. 
However, it seems to me that this Court can determine that tax issue but needs full evidence about the overseas earnings and about the appellant's place of abode and related concepts at material times. I do not expect the residency issue to be difficult to determine. I do not think it needs to be dealt with by the High Court. 
I shall treat the appellant's stance on this issue as an application for rehearing, which I grant. I am willing to hear and determine the residency issue but expect the IRD may well find that the appellant still resided in New Zealand at all material times for tax purposes. That outcome is likely but cannot be confirmed/decided without all relevant facts. ”
Accordingly, I granted a rehearing on the issue whether the appellant's Australian income may be taken into account when calculating compensation for the appellant as an employee not in permanent employment. However, subsequent to that ruling there has been the High Court decision in Khan v ACC (CIV 2007-485-001632, 25 February 2008, Auckland High Court per Cooper J) that in such a situation this Court does not have jurisdiction to grant an application for rehearing of an appeal determined by this Court. As a result of that decision in Khan, the advocates in this case sought and had a telephone conference with me on 18 April 2008 as to the best method of procedure in the light of Khan. I now set out the outcome then agreed to. 
I acknowledge that (in the light of Khan v ACC) my grant of a rehearing on issue two, as referred to above, was made without jurisdiction. Accordingly, I grant leave (by consent) to the intended appellant to appeal to the High Court on that issue number two (only). 
I understand that the parties have agreed to ask the High Court to join issue two with the said special leave application. They will also ask the High Court to refer this issue (of whether the appellant's Australian income may be taken into account when calculating the compensation for the appellant as an employee not in permanent employment) back to this Court as a matter upon which evidence is now available and needs to be heard before the issue can be determined. 

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