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Accident Compensation Cases

Weal v Accident Compensation Corporation (DC, 16/08/10)

Judgment Text

Judge P F Barber
The application 
In a 19 February 2009 decision (no. 22/09), Judge M J Beattie dealt with two interlocutory applications made by ACC. The first application sought leave to appeal to this Court out of time in accordance with s 151(3)(c) of the Accident Compensation Act 2001; and Judge Beattie provided detailed reasons for his granting such leave. The second application was for a stay of payment of any entitlements from ACC to the applicant pending determination of the appeal; and Judge Beattie also granted to that application to ACC with detailed reasoning. 
A Notice of Application for Leave to Appeal to the High Court against those rulings of Judge Beattie was filed for the applicant and received on 13 March 2009 supported by a 17 March 2009 affidavit from the applicant. A Notice of Opposition was filed on 23 March 2009. Since then there have been rather extensive submissions from all counsel. I understand that, early this year, the applicant withdrew his instructions to Mr McLennan and is now represented by Mr A Beck, barrister, of Wellington. 
Current issues between ACC and the applicant arise out of a claim by the applicant for cover for dengue fever which he contracted in Fiji in 2003 and which he claims was a work related accident. 
On 12 August 2008 the District Court held that the applicant has a deemed decision in his favour which had the effect of reversing ACC's 11 October 2006 decision revoking the applicant's cover for dengue fever. The applicant claims entitlements under that deemed decision in his favour effective on 13 January 2007. However, ACC has appealed the correctness of that deemed decision in substantive proceedings under No. AI 66/09 which raise the question whether the applicant is entitled to cover for the dengue fever which he contracted in March/April 2003 while in Fiji. ACC's stance is that he is not entitled to such cover because he was not working in Fiji when he contracted dengue fever but, instead, was on holiday and that he has (it is put for ACC) deliberately misrepresented otherwise in an attempt to obtain cover. If that is so the applicant is not entitled to cover because s 25(2)(c) of the 2001 Act requires that such a disease be work related to be covered by the Accident Compensation Scheme. The hearing of that substantive issue (Case AI 66/09) was to have been heard in March this year but seems to have been adjourned due to the said change in counsel for the applicant and because application was about then made by the applicant for legal aid. 
Judge Beattie is seized of the substantive appeal but, of course, it is inappropriate for him to preside over the current two applications. 
Further background is that in May 2007 the applicant filed an appeal against a Review Decision of 4 April 2007 finding that there had been no unreasonable delay in processing the applicant's claim but that proceeding (AI 206/07) has been adjourned part heard pending the outcome of Case AI 66/09
The initial submissions of applicant for leave 
Mr McLennan's 20 January 2010 submissions for the applicant make it clear that the rulings of Judge Beattie on interlocutory matters (Decision No. 22/2009) which the respondent seeks that the High Court consider are: 
“The granting of the appellant's application for a stay in payment of entitlements to the respondent. 
The determination of issues in Decision 22/2009 which were not part of the application by the appellant, on which the respondent was given no opportunity to make submissions at the hearing, and are contrary to the facts in the matter. ”
Mr McLennan put the issue as that the applicant currently has cover for his illness and has had such cover since 2004 but ACC have (illegally, it is put) used its purported discretions to withhold entitlements. On that issue Mr McLennan summarised the applicant's position as follows: 
Mr Weal currently has cover for his illness, and has so since December 2004. Therefore under the Act, ACC are required to provide entitlements. 
Mr Weal is claiming a loss of earnings and other entitlements from 1st April 2003 to the present day, as he is still suffering from the effects of this illness. These other entitlements include medical treatment and vocational rehabilitation (although it is acknowledged that case law my not require ACC to reimburse Mr Weal for medical treatment he has paid for personally over the past 5 years). 
It is prejudicial to Mr Weal and unreasonable to expect him to continue to subsist on an Invalid's Benefit due to the stay granted, while he has cover for his illness, and is being frustrated by protracted Court proceedings by ACC, in an appeal by ACC that it is submitted is flawed and has no merit. It is submitted that leave should be granted to appeal the Decision 22/2009 on a matter of law on the issue of stay of entitlements to the High Court. 
It is the respondent's respectful submission that the District Court made an error in law in December 22/2009 by granting the stay in entitlements. ”
Mr McLennan dealt quite fully with matters put before Judge Beattie which, he submitted were not part of the applications and provided additional grounds for leave to appeal Judge Beattie's decision 22/2009. Those issues were that Judge Beattie had found that the applicant's claim for entitlements is limited to the year April 2003 to 29 March 2004; which Mr McLennan submitted should lead to the following question of law being put to the High Court, namely: “Is the District Court correct in making a determination of an issue not part of the hearing, when that issue is already before the Court under another appeal awaiting determination, an appeal that has been adjourned for several years without any finite hearing date?” 
Mr McLennan submitted that there is no provision under the Act for ACC to appeal a deemed review decision; and that the substantive issue which ACC seeks to be determined in the District Court under No. 66/09 is not the issue of the original primary decision on the claim made by ACC on 11 October 2006. 
It is put for the applicant that ACC made submissions as to this Court's jurisdiction to determine the issue being put forward for ACC in its application to file its Notice of Appeal out of time, but this was not considered by Judge Beattie in his decision 22/2009; and that the jurisdiction for determining the applicant's employment status as is being argued by ACC in this appeal comes under the Income Tax Act 1994 and jurisdiction is with the Taxation Review Authority and not this Court. Apparently, there is an issue as to whether, at material times, the applicant was self-employed or not. 
Mr McLennan referred to Judge Ongley having found in Howard v ACC 365/04 that a claimant has no right of appeal against a deemed review decision because there is no review decision against which the claimant could appeal. Mr McLennan put it that he intended to argue in the High Court, if leave to appeal is granted in this case that without a review decision being issued as required under s 144 of the Act, there is no enforceable decision and so no decision which can be appealed. 
The 4 March 2010 submissions for ACC 
Inter alia Mr Ifwersen noted that by a direction of 27 March 2009, Judge Beattie advised that affidavit evidence is not to be presented in applications for leave to appeal so that ACC has not filed evidence in reply to the said affidavit of the applicant and does not wish any implication of agreeing to that evidence. 
Mr Ifwersen emphasised that the scope of the application for Leave to Appeal to the High Court before me is confined to the stay of payment of entitlements. 
He then addressed that there has been significant delay by the applicant in pursuing this application and emphasised that the substantive hearing (i.e. Case AI 66/09) was imminent and, if I were to grant leave in the present application, one would expect the issue to become academic prior to the High Court considering matters so that there would be a waste of judicial resources. He then addressed in some detail the issues and arguments raised for the applicant but, essentially, submitted that no question of law arises from Judge Beattie having granted a stay of payment of entitlements. Mr Ifwersen submitted that decision was made following Judge Beattie's evaluation of the facts, the procedural position, and after balancing the competing interests of the parties. Inter alia, he submitted that; 
The Court has stayed the payment of any entitlements pending the determination of the substantive appeal which will decide whether or not Mr Weal is entitled to cover. The effect of this will be to ensure the just disposal of the substantive appeal by ensuring that Mr Weal is not paid entitlements before the question of cover has been resolved. 
The decision was an exercise of the District Court's inherent power to carry out its statutory powers, control its own processes and to prevent abuse of those processes. The application does not challenge this inherent power, which is the basis of the decision to grant the stay. In any event, that exercise of discretion is not appealable: Thomas v ACC. ”
Mr Ifwersen then argued that the said two factual observations are not bases on which to grant leave to appeal as they do not meet the test under s 162 of being an order or decision of the Court, nor do they raise a question of law. Mr Ifwersen put it that they do not fall within the category of errors of law where there is no evidence to support the decision, or where the evidence is inconsistent with and contradictory of the decision. 
The two factual observations were that Judge Beattie had observed that the present state of the applicant's claim for entitlements is limited to the year from April 2003 to 29 March 2004; and that the Court had set out as a background fact that ACC issued a decision on 6 June 2006 declining to grant weekly compensation. 
I agree with Mr Ifwersen that the period of the applicant's claim, and the date or circumstances surrounding ACC's decision not to grant the applicant weekly compensation, are not in issue in the substantive proceeding which only concerns whether the applicant is entitled to cover from ACC. Whether the applicant has lodged an appropriate claim for entitlements extending beyond 29 March 2004 has not yet been decided. It does seem, as Mr Ifwersen submits, that the factual observations in question have no bearing on the decision to grant the stay of payment of any of the applicant's entitlements and cannot affect any matter arising in the substantive proceeding or the stay of payment of entitlements. Also, the stay of payment is in respect of “any entitlements” which may be due to the applicant and that would include any entitlements beyond 29 March 2004. At most, the factual observations in issue could only be inconsequential errors which are not the function of an appeal court to resolve. The factual observations in issue are not particularly relevant to the substantive proceeding and do not relate to Judge Beattie's decision to grant a stay of payment. 
A position of ACC is that appeals against deemed decisions are permitted by law because s 151(3) of the Act contemplates the filing of appeals against deemed review decisions by providing for the time by which to do so. That seems correct. In the Howard v ACC decision, the Court correctly stated that there is no right for a person having the benefit of a deemed decision to appeal against that deemed review decision. That is consistent with the provisions of s 149(1) of the Act that a claimant or ACC can appeal against a review decision, but there is nothing which the Court can do for a litigant who already has a decision in his favour. In the present case, ACC is appealing against a deemed decision which was in the applicant's favour so that the Howard case is distinguishable on its facts. The fact that there is no written decision could not mean that there is no decision which can be appealed. A deemed decision occurs by operation of law. Its terms are capable of definition because the deemed decision reverses ACC's decision of 11 October 2006 revoking the applicant's cover for dengue fever. 
This case does not fall within the jurisdiction of the Taxation Review Authority as is submitted for the applicant. The issue in AI 66/09 is whether the applicant was working when he contracted dengue fever and his precise tax and employment status do not need to be determined to address that issue. 
Final submissions for applicant 
Further submissions were filed for the applicant on 22 March 2010 by Mr Beck. Overall, he submitted that any delay by the applicant has not resulted in prejudice to ACC and delay has occurred largely because the substantive appeal (AI 66/09) has been given priority by Judge Beattie against the wishes of the applicant. 
He also seemed to submit that the powers exercised by Judge Beattie, in staying entitlements, were not in the nature of discretionary powers but included factual findings made without evidence and conclusions as to jurisdiction. He also submitted that the stay of entitlements was not granted legitimately in terms of s 84 of the District Courts Act 1947 and that it is seriously arguable that s 84 has no application in this case. Section 84 simply makes it clear that a Notice of Appeal does not stay proceedings unless the Judge so orders or the judgment sum is paid to the Registrar or secured. It has little to do with the issue before me. The applicant has not been querying whether Judge Beattie had jurisdiction to stay entitlements, but whether it was just to do so. Mr Beck seemed to be submitting that it is rare for this Court to grant a stay of entitlements pending the hearing of an appeal, and that the power to grant such a stay is clearly a question of law which ought properly to be considered by the High Court. 
Pursuant to s 162(1) of the Act, the applicant is only entitled to leave to appeal to the High Court on questions of law. It is settled law that the contended point of law must be capable of bona fide and serious argument to qualify for the grant of such leave to appeal. Care must be taken to avoid allowing issues of fact to be dressed up as questions of law, as appeals on the former are proscribed. However, a mixed question of law and fact is a matter of law and a Judge's treatment of facts can amount to an error of law. Even if the qualifying criteria are made out, this Court has an extensive discretion in the grant of refusal of leave so as to ensure proper use of scarce judicial resources; and leave to appeal is not to be granted as a matter of course. 
My ruling 
It seems to me that the main issue involved in the application now before me relates to Judge Beattie having ruled, as an interlocutory matter, that the payment of any payments due to the applicant (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. That is the exercise of a discretion by Judge Beattie based on a particular set of facts. It does not seem to be suggested that there was any flaw in the process by which Judge Beattie came to that ruling to stay payments for the time being, and the applicant's concern is about the outcome of that ruling. It seems to me that if there is no flaw in the reasoning process to reach the exercise of a discretion, then the actual discretionary decision is unassailable because that discretion outcome was reposed in the Court to reach as the Judge saw fit based on proper criteria. 
Also, in my view, there is a strong practical need, in terms of the interests of justice overall and the best use of judicial resources, that the substantive issue of the applicant's entitlement to cover as at 13 January 2007 be dealt with urgently by this Court as, inter alia, it may lead to the proceedings now before me being moot. 
Although it was not really put to me in terms of the application for leave to appeal to the High Court (although Mr Ifwersen submitted that an appeal needs to be against a decision of this Court), it also seems to me that the short answer to the application is that there is no right of appeal from an interlocutory decision (unless it is, in effect, determinative). Section 162 of the Act only allows an appeal from a “decision” of this Court which also needs to be a determination under s 161 of the 2001 Act. It seems to me that a ruling (by Judge Beattie) that there be a stay in payment of weekly compensation pending the outcome of a substantive appeal about cover is not a final determination of the substantive issue and should not become the subject of reference to the High Court in this case at this stage. Judge Beattie's ruling about the stay affects a potential entitlement but does not go to the merits of an entitlement. The merits are bound up in the substantive appeal on the issue of cover and if the applicant succeeds on the substantive issue arrears of compensation will be paid plus interest. 
For the above reasons, the application is dismissed. 

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