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Accident Compensation Cases

P v Accident Compensation Corporation (DC, 04/08/09)

Judgment Text

Judge M J Beattie
As a preliminary, I make an order under Section 160 of the Act prohibiting publication of the appellant's name or any particulars likely to lead to her identification. 
The appellant has cover for injuries under a sensitive claim and also for injuries suffered in a motor accident in March 1993. 
Over the past few years, the appellant has lodged a significant number of applications for review in relation to her dealings with the respondent, and also on a significant number of occasions those review decisions have resulted in Notices of Appeal being filed with the ACC Appeals Registry. 
Whilst it is the case that at various times the appellant has sought to question decisions made by the respondent, being decisions within the meaning of Section 6 of the act, she has also sought to raise issues by way of review and appeal which have not been “decisions” but rather simply administrative actions on the part of the respondent in relation to her claims. 
This Court had in the past considered a number of appeals from the appellant, some of which it has recognised as bona fide appeals from decisions, and in respect of which it has made determinations. Similarly, it has issued a number of decisions determining that there was in fact no jurisdiction for the Court to consider the issue sought to be raised as the matter was not one which was within the appellate jurisdiction of the District Court as contained in Section 149 of the Act. 
At a hearing in the District Court at Rotorua on 21 October 2008, at which the appellant was present and also supported by Mrs A Stewart, a large number of appeal files were reviewed, and where the Court indicated that each of the appeal files would be considered individually and decisions made as to whether the appeal was indeed an appeal of an issue for which the Court had jurisdiction to determine, or whether the appeal was one for which there was no jurisdiction, it not being an appeal in relation to a decision within the meaning of Section 6 of the Act. 
The Notice of Appeal filed by the appellant which has been accorded the Appeal Registry No.AI 118/07, relates to a review decision given on 12 March 2007, and which decision related to review number 50133. 
The appellant had lodged an application for review as permitted by Section 134(1)(b) where she contended that there was a delay in processing her claim for cover for a treatment injury arising from eye surgery conducted in 1996. 
The Reviewer heard from the appellant herself that this claim for cover had been lodged in November 2006 and it was on 16 December 2006 that the appellant lodged an application for review, contending undue delay in the consideration of the claim. 
It is the case that the respondent issued a decision on 14 February 2007 accepting the appellant's claim for cover for the treatment of the eye injury, that acceptance of claim being made well before the review hearing was to take place. 
It is the case that a review hearing did not take place, but the Reviewer invited the appellant to provide written submissions. The review decision indicates that none were received. 
In his decision the Reviewer stated, inter alia, as follows: 
“This application relates to an alleged delay in making a decision under Section 134(1)(b). This provides an avenue for a claimant to apply to ACC for a review of any delay in processing a claim for entitlement that the claimant believes is an unreasonable delay. 
Ms P has not provided reasoning why she believes there is a delay. She mentions a claim lodgement date in November 2006. No evidence was introduced to show that ACC failed to follow the requirements of Section 57, which concerns complicated claims for cover. It seems that Ms P lodged her application for review of a delay in process about a month after lodging the claim for cover. 
While Section 131(1)(b) allows a claimant to apply for a review where he or she believes there is an unreasonable delay, Section 57(2) gives ACC an initial investigation period of 2 months after the claim is lodged. ACC can then request additional time if that is necessary. It follows that any claim of an unreasonable delay within that period is itself unreasonable. 
Ms P' application for review appears to be based on her belief that the documentation currently available to ACC ought to be sufficient to accept the claim and her expectation that ACC will ‘decline the claim or fail to issue a decision’
As the cover decision has been made in Ms P's favour, with review rights, there is no issue in terms of any delay. There is nothing that can be added through the review process. ”
For those reasons the Reviewer declined jurisdiction to consider the question of delay and then went on to state on the matter of costs: 
“I decline to award costs as this application was not reasonably brought. ”
It seems that while the appellant still had some issue with matters stated in the review decision, at the end of the day she is appealing against the determination that there be no award of costs, she seeking payment of $200 in accordance with an account for the same issued by ACC Advocacy Support Trust (Rotorua). That invoice states: 
“Assistance and support provided to Ms P with reference to review No.50133 - $200. ”
The issue relating to review costs is covered in Section 148 of the Act and the Injury Prevention, Rehabilitation and Compensation (Review Costs and Appeals) Regulations 2002. 
The relevant statutory provision in this case is Section 148(2)(b) which states: 
“Whether or not there is a hearing, the Reviewer — 
May award the applicant costs and expenses if the Reviewer does not make a review decision in favour of the applicant but considers that the applicant acted reasonably in applying for the review. ”
This section goes on to state that the award of costs must be in accordance with the Regulations made for the purpose. 
It is the case that Section 148(2)(b) gives a discretionary power to the Reviewer to award costs and the exercise of that discretion is on the basis that the Reviewer considers that the applicant acted reasonably in applying for the review. 
As noted from the Reviewer's decision, he did not consider that the application for review in this instance was reasonably brought and his reasons for so thinking are contained in that part of the decision referred to above where he considered that the appellant's application for review was wholly premature, and that in any event, the respondent made a decision in relation to the claim well before any review hearing. 
The basis for a review being reasonably brought must be founded on a consideration of whether there was a genuine issue requiring the consideration of a review, and where there was at least some basis of merit for bringing that application for review. 
In the present case, I find that there can be no such reasonableness found in the way in which this appellant lodged an application for review before any time limits required to be observed by the respondent in relation to her claim had in fact expired. 
In this particular case, it seems to be a situation where the appellant considered that she was likely to receive an unfavourable decision in relation to her claim and was therefore seeking to get the matter past a review hearing and before the District Court on an appeal. This is certainly the flavour which comes through from the application for review, where the appellant has written in the part where the claimant is asked to state the result that is sought by the review, and where she stated: 
“For the matter to be advanced per the review process as quickly as possible so that I can get to the District Court and have this matter resolved in a more appropriate forum. ”
Having considered all the background to this review, I find there can be no basis for interfering with the exercise of the discretion as it was stated by the Reviewer, and I confirm that in the circumstances of this case there is no entitlement to costs. 
In all respects, therefore, this appeal is dismissed. 

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