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Accident Compensation Cases

Accident Compensation Corporation v Weal (DC, 19/02/09)

Judgment Text

Judge M J Beattie
This decision relates to two interlocutory applications which were made by the appellant relating to this appeal. At an earlier Directions. Hearing it had been agreed to by counsel for the parties that these two applications would be heard and determined in advance of any hearing of the substantive appeal. 
The first application is the appellant's application for leave to appeal to this Court out of time in accordance with s 151(3)(c) of the Act. 
The second application is an application by the appellant for a stay of payment of any entitlements to the respondent pending determination of the appeal in accordance with s 150 of the Act and s 8 (4) of the District Courts Act 1947. 
The Court has received written submissions, and has heard oral submissions from counsel for the parties and it has been provided with a bundle of the relevant documents. 
There is a significant background to matters between the, appellant and the respondent arising from a claim for cover and entitlements made by the respondent in 2004. I now set out the background facts, being those facts which are not in dispute, which are relevant to the two applications presently before the Court. 
On 14 January 2004, the respondent lodged a claim for cover for an injury described as dengue fever, claimed to have been suffered on or about 1 April 2003 in Fiji. 
The medical details provided by the appellant's GP at the time that claim was lodged were cited as — 
“holidaying in Fiji, bitten by mosquito causing dengue fever. ”
By decision dated 15 January 2004, the appellant declined to grant cover on the grounds that personal injury caused by disease or infection was not a type of personal injury for which cover could be had. 
On 20 October 2004, the respondent lodged a second claim for cover for dengue fever, stating that the disease had been contracted whilst he was in Fiji in the course of his employment. 
By decision dated 13 December 2004, the appellant accepted the claim for cover. 
The respondent sought entitlements, principally weekly compensation, and in that regard the appellant sought further particulars of his financial details. 
There seems to have developed a stand-off between the appellant and the respondent over the requirement to provide financial information pertaining to the respondent's pre-injury employment and income, and this culminated in the failure of the respondent to provide a statutory declaration as to details which had been requested by the appellant. 
Consequent upon that failure, the appellant issued a decision on 6 June 2006 declining to grant weekly compensation to the respondent. 
At this time also, the Corporation's Fraud Unit was investigating the respondent's claim that he had been working whilst in Fiji at the time he suffered dengue fever. 
Consequent upon that investigation, the appellant issued a decision on 11 October 2006, revoking its earlier grant of cover. 
In circumstances which will be considered in greater detail later in this decision, the respondent faxed an application to review that decision to the appellant on 13 October 2006. 
It is the case that that application for review was not actioned by the appellant. 
By letter dated 8 February 2007, the respondent required the appellant to accept a deemed decision pursuant to s 146 on the grounds that the application for review had not been set down for hearing within the timeframe stated in s 146. 
It can be noted that it was the appellant's position that it was unaware that the application for review had been received by it on or about 13 October 2007. 
The appellant did not accept that the respondent was entitled to a deemed decision, it contending that the application for review had not been received by it until 13 February 2007. 
The issue therefore of whether the respondent was entitled to a deemed decision or not was required to be determined. 
In a decision dated 13 September 2007, the Reviewer, J Setefano, ruled in favour of the appellant and determined that the respondent was not entitled to a deemed decision, he finding as a fact that the respondent's application for review was not received until 13 February 2007. 
That decision came before the District Court on appeal on 16 July 2008. 
In a reserved decision dated 12 August 2008, 1 determined that the evidence established that Mr Weal must be taken to have given. notice of his application for review by his facsimile transmission of 13 October 2006. I therefore ruled that Mr Weal was entitled to have a review decision in his favour, to the effect that the Corporation's decision of 11 October 2006, revoking cover, was quashed. 
Although it is not relevant for the purposes of these present applications, the Court nevertheless notes that there have been other reviews and other applications for review between the parties, but at no stage hitherto has any review hearing, or District Court hearing by way of appeal considered the evidence or made a determination of the substantive issue of whether the respondent is or is not entitled to cover for contracting dengue fever. 
With the foregoing being the background facts which are relevant, I now identify particular matters which are specifically relevant to the two applications before the Court. 
Firstly, it is to be noted that in other proceedings it has been the respondent, Mr Weal, who has been the appellant/applicant in relation to decisions made by the Corporation or, in some cases, decisions not made and with delay alleged, which have been the subject of hearings. 
In the present appeal, the appellant is, of course, the Corporation, and it lodged a Notice of Appeal to the District Court pursuant to s 151 of the Act on 25 October 2007. The Notice stated, inter alia 
“In the event that there was a deemed decision under s 149, taking effect on either 13 January 2007 or on 20 March 2007, the appellant appeals against the following aspect of the potential deemed decision: 
That Douglas Weal (the respondent) is entitled to cover for dengue fever ”
It is that Notice of Appeal which has now progressed consequent upon this Court's decision of 12 August 2008 determining that the respondent was entitled to a deemed decision under s 146, which decision had the effect of re-instituting the status of him having cover for dengue fever as previously granted by the Corporation's decision of 13 December 2004. 
In terms of time-lines, s 146 (2) states that the date of the deemed decision is 3 months after the review application is received, which in this case is 13 January 2007. 
By virtue of s 151(3) the appellant is required to file Notice of Appeal in the Registry within 28 days after that review decision, which would make the final day for the filing of Notice as being 10 February 2007. The Notice of Appeal was lodged on 25 October 2007, being some eight months and two weeks outside the statutory time limit. 
It is the case that at the time the Corporation filed the Notice of Appeal, it had a review decision in its favour of 13 September 2007, confirming that Mr Weal was not entitled to the benefit of a deemed decision under s 146, as the Reviewer had found that the application for review was not received by the Corporation until 13 February 2007. 
It was only at the appeal stage that the Court determined that whilst 13 February 2007 was the day when the Corporation actually obtained knowledge of the application for review, nevertheless it had been found as a fact that the application for review had been submitted on 13 October 2006, and that this was the date from which time must be regarded as running in relation to the Corporation taking steps to arrange for a review hearing to be set within three months. 
With that as the background, both counsel addressed the matter in terms of the principles applicable as laid down in the decision of McDougall v Accident Compensation Corporation (1983) 4 NZAR 55, where the Court held that the four factors to be considered when determining such an application were: 
The length of time beyond the time allowed; 
reasons for the delay; 
strength or merit of the case; 
prejudice to the respondent. 
The length of the delay when considered strictly is eight months and fifteen days, but I find that that calculation takes no account of the unusual circumstances which pertain in the present case. 
This is not a case, I find, where an appellant has sat on its rights and belatedly now seeks to appeal a decision which it finds unacceptable. In the matrix of fact in the present case, the question of whether or not the respondent was entitled to a deemed decision for a failure of the Corporation to comply with s 146 was in dispute, and indeed was not resolved until the determination of this Court on 12 August 2008. 
This is not a case where the respondent can be said to be taken by surprise by a belated lodgment of an appeal. The respondent was the applicant at the review hearing which confirmed that no deemed decision could be had, and he was the appellant in the District Court appeal where that issue was finally determined in his favour. By the time that issue of a deemed decision was made in his favour, the Notice of Appeal had already been lodged by the Corporation as a precautionary move, and I find that there can be no period of delay which could be said to be a factor against the granting of leave. In the particular circumstances of this case, the reasons for the delay, if indeed there be considered to be any delay, are understandable. 
The next factor that needs to be considered is the strengths or merits of the appellant's case. In this case the appellant is seeking to justify the basis for its decision to revoke the grant of cover to the respondent. The grounds which were asserted at the time that revocation decision was made in October 2006 remain the same, namely, that at the time the respondent contracted dengue fever, it was in circumstances which were not work-related, and as such there is no right to cover under the Act. 
In the course of submissions, counsel for both parties identified that the Court was not at present in a position to make any findings or rulings on the merits, but for the purposes of the current application, I find that the circumstances under which the disease was contracted, and the statements made by the respondent initially, do give rise to a situation where the appellant does have a case to put in support of its contention. Thus it is not a situation where the matters intended to be advanced by the appellant in support of the appeal are without substance or foundation. 
In all the circumstances, I find that the' strengths or merits of the appellant's case are in favour of it being allowed to present that case. 
The final factor to be considered is that of whether any delay which has occurred has caused prejudice to the respondent. I have already found that any delay was understandable, and, in effect, of a technical nature only, and for this reason I find that the respondent has not been prejudiced by delay in any way whatsoever. 
In his submissions, Mr McLennan for the Respondent, referred to prejudice arising from the possible unavailability of two witnesses, both former employees of the Corporation, and being persons then attached to its Fraud Unit. 
Whilst Mr McLennan made that point, he was not able to indicate how the unavailability of those persons, should it be that they are unavailable, prejudice the respondent. No details of any evidence they could give was provided by Counsel. It is the Court's belief that any unavailability of former Corporation employees who may have been involved in fraud investigation of the respondent would only affect the quality of the appellant's evidence. 
A second prejudicial factor put forward was a possible difficulty in obtaining relevant documents from the liquidators of the company with whom the respondent contends • he was engaged or employed at the time of the injury. Again, no details have been put forward, and I take it that it is no more than a possibility rather than being a factor which can, at this point iry time, be said to be so prejudicial as to warrant a declinature of the application. 
The final point mentioned was that if the appeal is allowed to proceed there is likely to be considerable further delay by virtue of this appeal before this respondent gets to the-stage where he could begin to receive the entitlements to which he says his grant of cover makes him eligible. 
This latter submission was countered by Ms lfwersen who referred to the fact that the statute makes specific provision for payment of interest on late paid weekly compensation in certain circumstances. 
Having regard to the particular facts of this case and the circumstances which have given rise to the appellant bringing this appeal, I find that there is no basis for the Court to exercise its discretion against the granting of leave, and accordingly leave is granted to the appellant to bring this appeal out of time in the manner which it did by lodging its Notice of Appeal on 25 October 2007. 
Stay of payment of entitlements 
As part of the background history of this matter, it can be seen that there was significant delay in the respondent providing financial information to the appellant in relation to his claim for weekly compensation, and it can be recorded that when the respondent refused to sign the statutory declaration pertaining to matters financial, the appellant thereupon issued a decision declining weekly compensation on the basis that there had been a failure to provide the necessary information. This decision was subsequently confirmed on review. 
It is further to be noted that from the appellant's perspective, the only claim which had been presented by the respondent was for weekly compensation for his incapacity from the commencement thereof in April 2003 until 29 March 2004. 
Counsel for the Respondent was not able to inform the Court of any further claim that had actually been tabled or formulated for any further weekly compensation entitlement, or indeed any other entitlements, and although counsel did contend that the respondent continued to be affected by the dengue fever, no further medical evidence has been presented in that regard. 
From the foregoing, I find that the present state of this respondent's claim for entitlements is limited to the year from April 2003 to 29 March 2004, and for which period the Court has been informed he was in receipt of an Invalid's Benefit. 
As was earlier observed by Ms lfwersen, the fact that the respondent has not been paid weekly compensation is something that in large measure can be remedied by the payment of interest for any period, if the principles contained in s 114 of the Act are found to apply. I find that no irreparable harm can be caused to the respondent if there is a formal stay of the payment of entitlements pending the determination of this appeal. 
It is the case that this particular status quo has been in place for some years, and I find that the merits of the matter are not such that this respondent can claim that he is being unjustly treated. 
For the Court's part, it will ensure that the hearing of the substantive issue in this appeal is brought about as a matter of priority, and I accordingly direct the Registry to allocate sufficient hearing time as and when counsel for the parties indicate that the matter is ready for hearing and that all the necessary preliminary procedural matters have been concluded. In that regard I mention specifically the matter of the parties applying for leave to introduce further evidence, and for details of such evidence to be presented by way of formal briefs in order that both parties are fully aware of the evidence which is intended to be brought. 
For the foregoing reasons, therefore, the appellant is granted leave to bring this Notice of Appeal out of time and associated with that order is an order that the payment of any entitlements which may be due to the respondent consequent upon the present grant of cover to him for the work-related personal injury of dengue fever, be stayed pending the further order of the Court. The question of costs is reserved. 

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