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Accident Compensation Cases

Hafi v Accident Compensation Corporation (DC, 08/04/10)

Judgment Text

DECISION OF JUDGE M J BEATTIE 
Judge M J Beattie
[1]
The applicant has made application pursuant to Section 162 of the Act for leave to appeal to the High Court from the decision of His Honour Judge J Cadenhead given on 16 June 2009 under decision number 107/09. 
[2]
In that appeal the applicant was the appellant and the issue for determination was whether there were extenuating circumstances within the meaning of Section 135(3) of the Act which would permit the late acceptance of an application for review of a decision of the Corporation given on 11 December 2006 
[3]
The decision sought to be reviewed was the Corporation's decision suspending entitlements to the applicant on the grounds that his ongoing medical condition was not attributable to his covered personal injury, but rather was due to disc degeneration. 
[4]
The Corporation had made that decision consequent upon it receiving a medical report from Mr Brian Otto, Orthopaedic Surgeon. 
[5]
It is the case, and not in dispute, that the applicant did not lodge an application for review of that decision until 1 October 2007, some seven months out of time. 
[6]
Consequent upon the late filing of that application for review the Corporation, following the required procedure, requested particulars from the applicant as to the extenuating circumstances that he was claiming prevented him from lodging the application within the three months' statutory timeframe. 
[7]
On receipt of information from the applicant, such as it was, the Corporation issued a decision on 25 October 2007 declining to grant a late application, it not being satisfied that there were extenuating circumstances justifying the delay. 
[8]
It is that decision which the applicant took to review and a review hearing took place on 12 February 2008 at which the applicant gave evidence on matters which he contended gave rise to a situation of extenuating circumstances. 
[9]
In her decision, the Reviewer determined that the applicant did have the opportunity and ability to lodge the application for review within the required time and she found that there were no extenuating circumstances which would allow for a late acceptance of the application. 
[10]
At the hearing of the appeal before His Honour Judge Cadenhead, the facts surrounding the making of the decision in question and the applicant's subsequent actions were placed on record and the applicant, representing himself, was given every opportunity to explain his circumstances. The Judge heard evidence both from the applicant and from Ms Cynthia Frewen, the applicant's case manager, who had been in contact with the applicant on several occasions during that three month period. 
[11]
In his decision, after reviewing the facts, His Honour determined that the applicant knew at all relevant times the action he would need to take to seek a review of the Corporation's primary decision and he found that there was no basis for determining that there were extenuating circumstances for him not doing so. 
[12]
In written submissions in support of his application for leave to appeal the applicant seeks to show how the substantive decision sought to be appealed was wrong and that he had a strong feeling about injustice. His final words were: 
“I appeal to the High Court because I think that I was not treated fairly by ACC and closing my case wasn't right. I hope in re-opening of my case and recompensation backdated to when my case was closed. ”
[13]
The Court has also received written submissions from Ms C Potter, Counsel for the Respondent, opposing the application, she contending that no question of law has been raised by the applicant in relation to the decision and she submitted that the decision of His Honour Judge Cadenhead was a decision made on the facts. Counsel submitted that in those circumstances there was no basis for the granting of leave. 
[14]
The Court received further submissions in reply from the applicant but these did not address the issue relevant to the seeking of leave, but rather sought to address the substantive issue of the merits of the Corporation's decision to cease weekly compensation. 
[15]
It is now settled law that an applicant for leave under Section 162 must identify a serious question of law which ought to be considered by the High Court, which question of law was germane to the decision sought to be appealed. 
[16]
In this present case, the issue in question was one of the fact, namely whether the applicant could identify extenuating circumstances within the meaning of Section 135(2) which would allow for the late acceptance of his application for review. That issue required the applicant to set out the facts upon which he relied to show that his personal circumstances were such that he was unable to lodge the application for review within the statutory timeframe. 
[17]
In his decision, Judge Cadenhead has carefully considered what the statutory requirement is that must be satisfied and he noted that it must relate to the ability of the claimant to lodge the application within the three month period. Against that statutory framework, His Honour considered the facts of the circumstances of the applicant and he found that there was no evidence of any circumstance which amounted to an inability on the part of the applicant to lodge the application for review within the statutory timeframe. 
[18]
The decision of His Honour Judge Cadenhead was wholly a decision based on the facts and I find that there is no determination of law which ought to be submitted to the High Court for further consideration. Leave to appeal to the High Court is therefore declined. 

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