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Accident Compensation Cases

Pearce v Accident Compensation Corporation (DC, 17/09/08)

Judgment Text

Judge M J Beattie
The applicant has made application for a recall of a Judgment delivered in this Court on 21 April 2008, being Decision 82/08, that Judgment being given pursuant to Section 161 of the Act. 
Since that decision was delivered, the applicant sought the leave of this Court to appeal that decision to the High Court, such leave being declined by His Honour Judge Cadenhead in a decision dated 8 July 2008 (Decision 150/08). 
On 23 July 2008, the applicant requested that Decision No.82/08 be recalled, the grounds for recall being that a decision of the Court of Appeal delivered on 17 July 2008, and being Mahaki v ACC (2008 NZCA 240) affected the decision in the Judgment sought to be recalled as to the date from which payment of an Independence Allowance is to commence. 
The Court assumes that the applicant seeks recall of the Judgment pursuant to Rule 533 (3) of the District Court Rules 1992, this rule being the only rule which permits for a recall save for Rule 12, which is described as the “slip” rule and which does not apply in this case. 
Rule 533(3) states as follows: 
“A judgment, whether given orally or in writing, may be recalled by the Judge at any time before a formal record of it has been drawn up and sealed. ”
This present application has been made well after a formal record of the Judgment has been drawn up and sealed and therefore there is no jurisdiction to consider an application for a recall. 
By way of comment, I can indicate that the decision of Mahaki is not relevant to the issue of the date of payment of the Independence Allowance in this applicant's circumstances. 
Mahaki was a person seeking an entitlement to an Independence Allowance for personal injury for which he had previously received a lump sum payment under a former Act and in respect of which a specific provision of the 1998 Act applied, namely Section 442. By virtue of Section 442(2)(b) an Independence Allowance payable as a result of an assessment in those circumstances is payable from the date of the application for it. 
In the case of this applicant, Section 442 did not apply, firstly for the reason that he had not previously received a lump sum payment in respect of the personal injury sought to be assessed, and secondly, Section 442 had in fact been repealed as from 1 July 2005. 
Accordingly, even if there was jurisdiction to consider the merits of the application, the application would not be granted because the Court of Appeal decision does not have any relevance to, or application to, the date for commencement of payment of the Independence Allowance in the applicant's circumstances. 
For the foregoing reasons, the application is refused. 

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