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Accident Compensation Cases

Sinclair v Accident Compensation Corporation (DC, 15/10/09)

Judgment Text

Judge P F Barber
The Issue in AI 247/08 
Is a 30 January 2008 letter from ACC (set out below) to the advocate for the appellant a decision capable of review? By agreement, there were further written submissions since the hearing before me. 
The appellant has cover in respect of injuries she sustained in April 2000, when she fell approximately three metres from a roof onto a concrete surface. She has since received various entitlements from ACC. 
In September 2007, the appellant's advocate made various enquiries of ACC following which, until January 2008, there were further exchanges in respect of a complaint by the appellant under the Code of ACC Claimants' Rights. That related to steps ACC was taking in conducting an investigation into a claim of the appellant, and to payment of entitlements. 
On 30 January 2008, ACC's Complaints Investigator wrote to the appellant's advocate in the following terms: 
“Hazel Sinclair's complaint 
You raised a number of queries regarding ACC's fraud investigation into Hazel. I approached the investigator who was handling Hazel's matter for response. 
Your first query was why ACC commenced its fraud investigation before discussing this with you. The investigator replied that there is no onus on ACC to discuss the suspicions of fraud with a client's representative before embarking on a fraud investigation. 
Your second query was why ACC commenced a fraud investigation rather than simply ask Hazel's GP to note that Hazel was undertaking voluntary work on a medical certificate he provided ACC whereas he had not done this in the past. The investigator said that this question was of an operational nature and ACC was not required to respond to it until the conclusion of the investigation, including a prosecution should it result. 
It seems that pending the completion of the fraud investigation, your second question will remain unanswered. I shall therefore close Hazel's complaint file until the completion of the investigation after which I reopen it. If you would like to discuss this with me please don't hesitate to do so …  ”
An application for review of this letter (alleged as being an ACC decision) was filed on 21 February 2008. 
In April 2008 the advocate for the appellant and the Complaints Investigator (Ms Welsh) participated in a mediation. Following that, ACC issued a further letter on 17 April 2008 which is the subject of a further application for review and appeal in AI 269/08 dealt with below. 
On 7 May 2008 a review hearing took place in respect of the letter of 30 January 2008. By a 26 May 2008 decision, the application for review was dismissed by Reviewer Jane Wilson on the basis that the letter was not a “decision” in terms of the definition of ‘decision’ in s6 of the Act, but merely a letter confirming certain matters which had previously been advised to the appellant's advocate. That must be correct. The Reviewer also determined that there was no jurisdiction to review the matters which the appellant wished to have her consider. 
A notice of appeal in respect of that decision was filed by email for the appellant on 24 June 2008. The appeal was therefore filed out of time by one day because it needed to be filed within 28 days of 26 May 2008. 
The Law 
Sections 39 — 47 of the Act provide for a Code of ACC claimants' rights including the content of those rights, and procedures for lodging and dealing with complaints about breaches of the Code, and remedies, including a right of review pursuant to Part 5 of the Act. 
Section 134(1)(c) of the Act provides: 
A claimant may apply to the Corporation for a review of - 
any of its decisions under the Code on a complaint by the complainant. ”
However, decisions made by the Corporation in respect of complaints under the Code are not able to be appealed to this Court. Section 149 provides that: 
A claimant may appeal to a District Court against — 
a review decision; or 
a decision as to an award of costs and expenses under section 148. 
However, neither a claimant nor the Corporation may appeal to the District Court against a review decision on a decision by the Corporation under the Code on a complaint by the complainant. ”
A “decision or the Corporation's decision” is defined by s 6 of the Act and it includes “(g) a decision made under the Code about a claimant's complaint”
Reasons for Decision 
Was the 30 January 2008 letter a “decision” in terms of s 6 of the Act? If the letter was a decision, as defined, there was a right of review in relation to it. However, if the letter was not a decision, no right of review was available to the appellant in respect of it. 
ACC accepts that this Court has power to consider an appeal as to whether the letter was a decision and, therefore, as to whether the Reviewer had jurisdiction to consider the application for review. 
This Court may also consider an appeal against a decision regarding costs (either awarded or not) in respect of the review against a decision made under the Code — refer s 149(7). 
Should I find that this Court has jurisdiction to deal with the letter of 30 January 2008 as if it was a decision in respect of a claim under the Code, there is no power for this Court to determine any substantive issue there might be in relation to such a complaint. Consequently the most the appellant could achieve by this appeal would be a finding that the matter ought to be referred back to review for rehearing. This Court can also address the question whether the appellant should have received an award of costs i.e. the Reviewer's decision to decline to award costs is a matter which can properly be raised before this Court. 
In any case, the appeal to this Court was filed out of time. No explanation has been provided by or on behalf of the appellant as to why the appeal was filed out of time. Therefore, there is no matter which appellant has advanced for me to take into account as good and proper reasons for allowing further time in terms of s 151(3)(c) of the 2001 Act. 
Whether the letter of 30 January 2008 was a reviewable decision depends on whether it was a decision in terms of s 6 of the Act, in particular s 6(g). The first and obvious question is whether, in any sense, the letter can be said to amount to a “decision”. I agree with Mr Hunt that it does not. The letter provides an answer to two questions regarding ACC's commencement of a fraud investigation in respect of the appellant. The first question related to ACC's commencement of that investigation prior to discussing it with the appellant's advocate. There is no sense in which the letter contains any decision about that matter. Rather, it simply conveys information about ACC's response to a question. It conveys a response which, self- evidently, was one ACC was entitled to give, and which did not in any sense amount to a decision made under the Code about a complaint. 
The second part of the letter concerns the similar question why ACC had commenced a fraud investigation rather than asking questions of the appellant's general practitioner. ACC's response was that the question raised a matter of an operational nature, and was one to which ACC was not required to respond until the conclusion of the investigation including any prosecution that might ensue. I agree. 
I also agree with Mr Hunt that ACC might equally have responded to say that it was not obliged to answer the question after the conclusion of the investigation, nor at any other time. ACC is not obliged to explain steps, of an operational nature, which it takes in the investigation of matters of this kind. Its decision not to do so on this occasion did not amount to a decision made under the Code about the claimant's rights. 
Accordingly, the letter of 30 January 2008 cannot be regarded as a decision or a decision carrying any review rights. The Reviewer was correct to so conclude, and to determine that she had no jurisdiction to deal with the application for review. Even had she determined otherwise, that would not give rise to a right of appeal to this Court (other than the right to challenge the jurisdictional decision itself). 
As regards the this Court's jurisdiction to determine a challenge to the Reviewer's decision not to award costs to the appellant at Review, the appellant has not advanced any reason to show why such a decision was wrong applying the usual tests for challenges to discretionary decisions. 
The appellant has also submitted that the decision of the Reviewer was a nullity. The relevance of that submission, and its objective, is unclear to ACC which does not accept the submission that there was some invalidity in the appointment of a Reviewer, and her consideration of the application for review in this case. I find that there is no merit in such a submission for the appellant. The Reviewer's process is valid in terms of the 2001 Act. 
The appointment of the Reviewer in this case was a consequence of the administration by ACC of its obligations under ss 133 — 148 of the Act, in particular ss 137 — 139 about engaging independent reviewers. That obligation also flows from the duties of ACC pursuant to s 165(e) of the Act to “administer Part 5 (dispute resolution)”
ACC's position is that the appointment of DRSL, and the Reviewer in this case, is sufficiently covered by the decision of Judge Cadenhead in Buis v ACC (2003 NZACC 208) and the decision of the High Court in Willson v ACC (High Court Wellington, CIV 2005-485-1974, 13 December 2006, Clifford J). I agree. Some parts of Willson have been quoted in the appellant's submissions. That case concerned an application by Mr Willson to review a decision of an Associate Judge joining DRSL to proceedings as a second respondent. This was in the context of proceedings involving a review decision where it was contended that the appointed Reviewer had failed to comply with the Act and had not been independent. There was discussion regarding the nature of DRSL's role in those proceedings relative to those of ACC, given that the provisions of the Act, while referring to ACC and the duties imposed upon it, do not separately refer to DRSL. This led to discussion regarding the terms of a contract between ACC and DRSL, details of which were provided to the Court by counsel for DRSL (see [22] — [24] of the decision). In paragraphs [39] — [52], the role of DRSL was discussed, with it being noted that DRSL was and could only be a delegate of ACC. 
Clifford J noted the absence of any distinction between the roles of administration and administrative support for Reviewers, the fact that s 139 of the Act envisaged Reviewers to be employees or contractors, and that the scheme of the Act requires Reviewers to be independent of both DRSL as well as ACC given that DRSL's role was to act in the place of ACC. 
Clifford J concluded that: 
… In my view given the statutory framework provided by the Act, within which ACC is directly responsible for administering the review process and it has delegated that function to its wholly owned subsidiary, then ACC is a sufficient respondent for the purposes of these proceedings. ”
In his paragraph [51], Clifford J emphasised the responsibility of Reviewers to act independently of ACC and, indeed, of DRSL as well. Notable, however, is the absence of any concern as to the proper delegation of DRSL to carry out the role mandated by ss 137 — 139 of the Act. 
It appears also that in referring to DRSL as ACC's delegate, Clifford J suggests that was the nature of the relationship between ACC and DRSL. While the role mandated to ACC by ss 137 — 139 may be one that it could “delegate”, in the sense of asking some other party to perform that role (remaining responsible for the proper supply of the necessary services nonetheless), there is nothing to indicate that the relationship between ACC and DRSL is required to be one of delegation, as opposed to a contractual relationship such as is contemplated by s 139, for example. 
In this sense, while s 260 of the Act is no longer in force as it was when Buis was decided, there was nothing in it which indicates that ACC's use of DRSL for the purposes of providing dispute resolution services pursuant to s 165 of the Act necessarily requires the formality of a delegation pursuant to s 73 of the Crown Entities Act 2004. Section 260 formerly provided, inter alia, that: 
“260 Powers of Corporation 
Subject to any direction given by the Minister under Section 270, the Corporation - 
has such other powers as are necessary or expedient to enable it to perform its functions and duties. 
Without limiting subsection (1), the Corporation may perform its functions or duties by entering into any contract or arrangement for that purpose with the Crown, any department of state, or any other purpose or organisation. (3) The Corporation may perform any of its functions or duties through a subsidiary company or companies, and — 
the Corporation must delegate to each subsidiary company the functions and duties to be performed by the subsidiary; and 
the Corporation may authorise the company to perform any of the delegated functions and duties by entering into contracts or arrangements with the Crown, any department of state, or any other person or organisation …  ”
As Buis confirmed, in terms of s 260(2) and (3), ACC had properly delegated its relevant functions or duties by entering into contracts or arrangements with DRSL. While Judge Cadenhead found that, on each occasion a file was forwarded to DRSL for management by ACC, there would be an arrangement in terms of s 260, he also noted that an earlier form of contract between DRSL and ACC had expired in July 2002, with a new contract signed on 2 September 2002. 
However, the previously effected delegation to DRSL is subject to s 192 of the Crown Entities Act 2004 which provides: 
“192 Existing Delegations and Directions to continue 
A delegation that is in effect in respect of a statutory entity under a provision of another Act that is repealed by this Act at the commencement of this Section continues in effect as if it were a delegation under Section 73. 
A direction that is in effect in respect of a statutory entity under a provision of another Act at the commencement of this section continues in effect as if this Act had not been enacted. ”
Accordingly, the delegation, pursuant to the exercise of s 260 (repealed by the passing of the Crown Entitles Act) 2004, continued in effect as if it were a delegation under s 73, and provides the authority for the appointment of the Reviewer in this case. 
Also, s 74 of the Crown Entities Act 2004 provides as follows: 
“74 Powers of delegate 
A delegate to whom any function or powers of a statutory entity … are delegated - 
may, unless the delegation provides otherwise, perform the function or exercise the power in the same manner, subject to the same restrictions, and with the same effect as if the delegate were the entity or. 
A delegate who purports to perform a function or exercise a power under a delegation — 
is, in the absence of proof to the contrary, presumed to do so in accordance with the terms of that delegation; and 
must produce evidence of his or her authority to do so, if reasonably requested to do so. ”
ACC is entitled to rely on that statutory presumption. 
For completeness, ACC's position is that the Inferior Courts Procedure Act 1909, relied upon in the submissions for the appellant is irrelevant as the Reviewer was not an inferior Court. I agree. 
For the above reasons, this appeal is dismissed. 
The Issue in AI 269/08 
This appeal challenges a 16 July 2008 Review Decision that ACC's Complaint Investigator (Ms S Welsh) had correctly found on 17 April 2008 that ACC had not breached the Code of Claimants rights with regard to the present appellant. This is related to the issues arising in AI 247/08 addressed above, because the 17 April 2008 letter was written subsequently to the 30 January 2008 letter which is the review subject review in appeal AI247/08. That appeal is also relevant insofar as the 26 May 2008 review decision relevant to it records, on page 3 of the decision, Mr Forster's concession “that the letter of 17 April 2008, as a fresh decision, effectively revoked the letter of 30 January 2008 in relation to the complaint of 22 August 2008, that is the Right 5 complaint”; and Mr Forster's submission that the letter of 17 April 2008 was merely a restatement of the status quo in regard to the second complaint, right 6 and the letter of 30 January should therefore stand as the decision of ACC. 
I agree with Mr Hunt that the above two propositions in AI247/08 are to some extent contradictory of each other. 
The 17 April 2008 ACC decision letter (in question) to the Appellant 
The 17 April 2008 letter sent to the appellant by ACC's Complaints Investigator, Shirley Welsh, deals with two complaints. It followed a mediation between Ms Welsh and the appellant's advocate on 7 April 2008. At that, it was agreed that, by 21 April 2008, Ms Welsh would make a decision on two complaints made on the appellant's behalf. Both were complaints under the Code of ACC Claimants' Rights. The first, as recorded by Ms Welsh, was: 
“Complaint 1 
On 8 September 2007 Warren sent an email to Ernest Le Roux from ACC's risk and assurance unit posing various questions. Warren says he never received a response. Warren contends that ACC's failure to answer his questions amounts to a breach of Right 5 of the Code that you have the right to effective communication and in particular Right 5(d) that ACC will provide you with information … in a timely manner. 
The first question I must answer is whether ACC responded to Warren's questions and second is that if it did not, whether that failure amounts to a breach of Right 5 of the Code. ”
The letter of 17 April 2008 from Ms Welsh recorded that ACC was confident that it would have responded to the relevant questions but was unable to provide documentary proof at that time, or maybe at all, for reasons given as follows: 
The investigator who was responsible for your file at the time Warren posed the questions, Jamie Clark, has since left ACC's employ. 
The investigator who is currently responsible for your file, Roy Mitchell, has forwarded your file to the Crown Solicitors office and therefore is unable to peruse it to determine whether there's any documentary evidence that Warren's questions were answered; 
Even if Roy could peruse your file he may still be unable to definitively say whether ACC responded to Warren's questions. This is because around the time Warren posed the questions to Ernst, he simultaneously posed numerous questions to other people within ACC including staff from the office of the Complaints Investigator, the Chief Executive and the Risk and Assurance unit. Your file does not contain a comprehensive record of all these peoples' responses, many of which were provided verbally. ACC estimates that it has spent hundreds of hours communicating with Warren about your matter. Not everything that has been said during this time has been recorded in writing. Given the considerable amount of time ACC has spent communicating with Warren about your matter, ACC is confident that it would have answered his questions at least verbally as much as it was able to do so. In terms of Section 27(1)(c) of the Privacy Act 1993 ACC is entitled to withhold certain information while an investigation is ongoing. ”
Ms Welsh further noted that ACC might, in time, be able to provide documentary evidence that it had answered Mr Forster's questions but, even if it could not do so, she did not consider that that would mean that ACC had not responded to those questions. She said: 
“I accept in the many hours that ACC spoke to Warren about your matter it would have verbally answered his questions as much as it was able to given that the investigation against you was still underway. I therefore find that ACC has effectively communicated with you and has not breached Right 5 of the Code in this case. ”
Right 5 reads: 
“Right 5 You have the right to effective communications. 
We will communicate with you openly, honestly, and effectively. 
We will respond to your questions and requests in a timely manner. 
We will provide you with an interpreter when necessary and reasonably practicable. 
We will provide information in a form which you can access, and in a timely manner'. ”
The second complaint dealt with by Ms Welsh in her letter of 17 April 2008 was Mr Forster's complaint, on the appellant's behalf, that: 
“ACC did not advise you or your GP that you ought to indicate on the medical certificates you provided ACC that you were engaging in voluntary activities. Warren contends that ACC's failure to do this is a breach of Right 6 of the Code that you have the right to be fully informed and in particular, Right 6(c) that we will provide you with full and correct information about … your responsibilities. 
ACC says it fully explained your rights and responsibilities to you at the time it accepted your claim as well as subsequently. You also signed declarations to this effect throughout the management of your claim. ACC will happily provide you with documentary evidence of this as soon as your file has returned to the claims prosecutor. That it was your responsibility to advise ACC that you engaged in voluntary activities and the extent to which you failed to do this forms part of ACC's argument in a possible criminal prosecution against you. For ACC to answer this complaint more fully now could affect the outcome of your possible prosecution. In terms of Section 27(1)(c) of the Privacy Act 1993, ACC has the right to decline to provide this information. 
In the circumstances, at present I am unable to make a finding as to whether ACC has breached the Code in this respect. ”
Right 6 reads: 
“Right 6 You the right to be fully informed. 
We will provide information on how to make a claim for cover and entitlements. 
We will keep you fully informed. 
We will provide you with full and correct information about your claim, entitlements, obligations, and responsibilities. 
We will inform you if your entitlements change. 
We will give you information about how we provide services, and how to access them. 
We will discuss expected time frames with you. 
We will inform you of your review and appeal rights under the Act. ”
By 17 April 2008 letter, Mr Forster (on behalf of the appellant) indicated that he wished to review the letter of 17 April 2008 and put it that the 17 April 2008 letter from the Complaints Investigator was a reviewable decision about both of the complaints lodged for the appellant. 
Similar to the issue in AI247/08, ACC's position is that, regardless of the outcome of the Code of Claimants Rights complaint, there is no right of appeal to the 17 April 2008 decision due to s 149(3) of the Act (set out above). 
For completeness, Mr Hunt also submitted that when the reasons for the decision of 17 April 2008 are analysed, they properly support the decision of the Reviewer to dismiss the application for review. He put it that, in particular: 
There is the jurisdictional issue dealt with under AI247/08 above. He put forward the same submissions as he had regarding case AI 269/08. 
The first complaint concerns an assertion that there had been a breach of Right 5 of the Code of Claimants' Rights. It is not entirely clear whether the complaints originally raised with Mr Le Roux (an ACC case manager) are similar to those identified and referred to in ACC's 30 January 2008 letter to the appellant's advocate. However, those questions were, in any event, reformulated from their original versions (of August 2007) and then dealt with in the 30 January 2008 letter. 
For a considerable period of time, ACC has been investigating the appellant, and considering whether she should be charged with criminal offences. Whether or not that is ACC's decision, and whatever the outcome of any charges that may be brought, ACC is entitled to pursue any investigation which it feels appropriate. Further, the course of such an investigation is not a matter which engages a claimant's rights. Nor is it some kind of means for preventing ACC from conducting proper investigations necessary to ensure the integrity of the scheme and that persons receive entitlements only when they are entitled to receive them. 
If the appellant has complaints about the investigation process, and any decision which may be made as a result, those complaints can be ventilated through the criminal procedures available if charges are brought e.g. the Costs in Criminal Cases Act 1967. It is not appropriate for ACC to be required to answer questions which are, in essence, designed to serve as a version of the kind of disclosure required if criminal proceedings were to be brought, for which other rules and obligations apply to ACC, as with any prosecuting authority. 
For those reasons, ACC's 17 April 2008 decision recording the extent to which it was possible to answer the questions raised, and where it was not possible to fully answer those questions why ACC had not done so or might not to do so, was strictly unnecessary. 
Also, as Mr Hunt puts it, the nature of the complaint to the effect that ACC did not advise the appellant, or her general practitioner, that she ought to indicate on medical certificates provided to ACC that she was engaging in voluntary activities, would go to the heart of any defence there might be to a claim that the certificates had been provided fraudulently. Possibly, an argument based on the Code might be available to the appellant if criminal proceedings are brought. However, ACC's response to the effect that the appellant's responsibilities and rights were fully explained when the claim was accepted, and via the declarations that she completed throughout the management of the claim, answers this aspect of the complaint for present purposes. 
There is no jurisdiction for this Court to entertain this appeal. 
For the above reasons, the appeal under the head AI269/08 is also dismissed. 

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