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Accident Compensation Cases

Kaulima v Accident Compensation Corporation (DC, 30/03/12)

Judgment Text

Roderick Joyce QC Judge
In a brief document of his own devising, Mr Kaulima notified the registry on 25 November 2011 that he sought to appeal the 26 August 2011 judgment of Judge Beattie arising from the Corporation's 22 October 2010 decision to suspend entitlements to Mr Kaulima. 
That decision had been made pursuant to s 117(3) of the Act and was consequent upon his failure to sign and return two forms, namely ACC 165 and 167, relating to the giving of consent to the Corporation for the collection and disclosure of information. 
Mr Kaulima had eventually returned the two forms, duly signed, on 7 December 2010, whereupon the Corporation reinstated his entitlements as and from 8 December, the day following. But it did not backdate those entitlements so as to cover the period of non-compliance. 
Mr Kaulima was unhappy at the result but unsuccessful, both on a review application made on account and on appeal to this Court, in gaining further relief. So with the document which was accepted by the registry as initiating his present application he sought leave to appeal to the High Court on “Facts of Law”
In 2003, and following a back injury, Mr Kaulima sought and was afforded cover for that event: He was subsequently paid entitlements, including weekly compensation, on an ongoing basis. 
In early September 2010 or thereabouts the Corporation realised that the then available to it consent to disclosure forms had expired. So it wrote to Mr Kaulima enclosing fresh forms, the first of which was styled Claimant Authority for the Collection and Disclosure of Information (ACC 167) and the second Declaration of Rights and Responsibilities (ACC 165). 
Mr Kaulima was asked to complete and return these forms by 23 September 2010. Six days later on 29 September there was a meeting between Mr Kaulima and Corporation officers. On that occasion he handed over both forms unsigned and left the meeting. 
The Corporation wrote to Mr Kaulima on 4 October 2010 about the non-completion of the forms. This was a most reasonably and carefully worded letter, one that effectively requested of Mr Kaulima that he do what he had been asked to do in the first place, that is, complete the requisite forms and send them back signed. It was pointed out to Mr Kaulima that, should he fail to do that, the result could be suspension of payment of weekly compensation. 
Mr Kaulima reacted by writing to the Corporation complaining that it had adopted “bullyish standover tactics”. He noted that he had read s 72 of the Act which deals with the responsibilities of claimants, 
Speaking of the first form, he suggested that there was no justification for him being required to provide a further consent because, he said, the original still held good. He went on to indicate that he would be happy to talk to the Corporation about relevant matters. 
The Corporation replied on 15 October 2010, seeking to explain what lay behind its requests. In particular it said: 
“ … As previously mentioned, ACC is empowered through its legislation to undertake a number of functions on behalf of a client. Its ability to do this effectively relies on the participation of both client and staff. The ACC167 consent form is necessary for ACC to fulfil its obligations under its legislation. 
ACC cannot require a client to sign this form however, if during the course of managing the claim information must be sought from a third party such as a medical practitioner, then it does require client consent to collect that information. 
If a client refuses to provide this authority, ACC will consider whether those actions are reasonable and if not, may result in the suspending of entitlements. Any attempt to either limit the information necessary for ACC to progress a client's rehabilitation or to slow down the process of rehabilitation is considered unreasonable and in breach of the statutory responsibilities ACC has under the Accident Compensation Act 2001. 
If you are happy with my explanation please sign and return the enclosed ACC167 Claimant Authority for the collection and disclosure of information and ACC165 Declaration of Rights and Responsibilities forms, in the self addressed envelope enclosed. 
Failure to provide this information will result in your weekly compensation being suspended from the 23/10/2010. This support will start again once you have signed the consent, however payments will not be backdated. ”
On 18 October Mr Kaulima provided the Corporation with a species of statutory declaration that said: 
“I will give consent for ACC to approach me at any time. I will meet with ACC at the Henderson ACC office. I give consent that ACC can contact me before they require to give information or receive information and discuss with me at a meeting before giving or receiving information about my rehabilitation or anything about me. This consent is so ACC does not ever act with an outside organisation without my prior knowledge or agreement. This statutory declaration should cover Section 72(3) and subsection (2) ‘as a statutory declaration’ of ‘the Act’. I believe this should cover the time this file is open. ”
At the same time Mr Kaulima provided this further statement, again as a species of statutory declaration: 
“Lucia Jacobs LFCU Takapuna ACC is continuing to harass me. I have been to the Henderson Police and recorded my complaint with them. You can contact them and they will verify this. As written in my last correspondence I would like Lucia Jacobs charged with committing an offence against section 312 Part 9 of (the Act) Director, employees and Officers. 
A director, employee, agent or officer of a body corporate commits an offence against this Act if — 
The body corporate commits an offence against this Act (the principal offence) and 
The principal offence was caused by an act done or carried out by, or by an omission of, the director, employee, agent or officer. 
I will await the response of ACC to this matter within ‘reasonable time’. ”
Before continuing I pause to note that s 312 is generally concerned with responsibilities attaching to company or other corporate officers or employees in respect of dealings with the Corporation rather than the conduct of the Accident Compensation Corporation and its representatives. 
Both at review and before the judge on the hearing of his appeal, Mr Kaulima asserted that, in what he had done as above, he had met his statutory obligations. 
He was prepared to give consent to the collection of information from any third party on what amounted to a case by case basis. 
He had in mind (so he explained) his view that in the past the Corporation had given out incorrect information about him, a repetition of which he wished to prevent, 
After setting this background out, the appeal judge referred to s 117(3) of the Act which says that: 
The Corporation may decline to provide any entitlement for as long as the claimant unreasonably refuses or unreasonably fails to comply with any requirement of this Act relating to the claimant's claim. ”
The judge identified as relevant s 72(1)(c) which says that: 
“A claimant who receives any entitlement must, when reasonably required to do so by the Corporation,— 
authorise the Corporation to obtain medical and other records that are or may be relevant to the claim. ”
The judge noted that all claimants with cover, and enjoying consequential entitlements including weekly compensation, were required duly to complete the two forms in question. The judge also noted that the Corporation's ability to deal with and progress claims or entitlements requiring the input of third parties would be severely handicapped if those forms were not completed. 
Referring to the solution which Mr Kaulima had proposed in the first of his declarations and also in his 11 October where he had said: 
“If ACC require consent, I am happy to meet at Henderson ACC office to discuss what, who and why the consent is required for. This will most certainly keep me fully informed of ACC's management of my case. I am unhappy for another ACC person to attend the meetings and request that these meetings are recorded, so there is no confusion in who said what - ”
- the Judge observed that such was not acceptable from an administrative perspective. There was simply no rational basis for putting Mr Kaulima into a special category — one of his own devising at that. 
In the end, then, he found it was unreasonable for Mr Kaulima to refuse to sign and return the forms and thus dismissed the appeal. 
Mr Kaulima's materials and arguments 
After giving notice of his wish to take matters to the High Court, Mr Kaulima filed a 15 page submission. He first of all complained that the judge had given his arguments short shrift: that little mention had been made of the case he had put forward. 
In his view the judge had overlooked a letter or submission of 24 January 2011 which he had addressed to the reviewer prior to the review hearing. This document comprised the written submissions that Mr Kaulima had sought to have the reviewer consider. This ran to 26 pages, all of which I have read. 
There are times when this document strays into areas that, even then, were obviously quite extraneous to the questions to be decided. At one point Mr Kaulima seemed to be complaining that the Corporation had written to a solicitor who had acted for him (the practitioner had copied the letter to Mr Kaulima) making reference to “information that should never have been released without asking me for consent, as this was not information requested”
Here Mr Kaulima was asserting that the lawyer was not involved in the matter to which that letter apparently referred but, rather, in another case of Mr Kaulima. But that had not stood in the way of him then setting out for the Court a letter which the lawyer had apparently written in reply: that, according to Mr Kaulima, “under my supervision to be certain of what was requested”
He later went on to suggest the possibility of some confusion between two extant reviews of his and, in this way and that, he set out to draw attention to his concerns about privacy. The fact remains, however, that what the appeal judge identified as the apparent nub of Mr Kaulima's case was fairly and accurately captured. 
The judge may not have specifically mentioned everything of which Mr Kaulima had spoken, but parties to appeals (indeed any litigation) do need to appreciate that judgments or decisions will inevitably focus upon what, in the end, the judge or other decision maker has seen to be principally relevant to the reaching (and explanation) of the conclusions expressed. 
Certainly, I see no room for useful argument that, in the area I have been discussing, the appeal judge overlooked, and so failed to take due account of material evidence or information. 
Mr Kaulima went on to refer to events that had occurred after 26 August 2011, which is the date of the judgment that he now seeks to take before the High Court. 
His reference to this material was no doubt well intentioned, but this case is not before me for some form of further appeal by way of re-hearing and none of the matters he referred to can have any bearing upon whether, arising from the 26 August 2011 judgment, there is a question of law with which the High Court might properly be concerned. 
Mr Kaulima then proceeded to refer, in terms I found quite unclear, to several of the provisions of the Act. The best I can make of what he raised here (where he mentions ss 145, 146 and 148) was that somehow, and for some reason itself unclear, reference to these provisions should have figured in the judgment with which he is dissatisfied. But again, I cannot identify in this part of his argument any useful foundation for the granting of the leave he has sought. 
Elsewhere in his submissions, Mr Kaulima expresses the opinion that it was a pity that the appeal judge did not have before him a review decision on an earlier and similar application pursued by Mr Kaulima where a reviewer had concluded (in the context of circumstances arising sometime before May 2003) that the Corporation had taken an unreasonable approach to earlier concerns of Mr Kaulima over privacy. But that regret on Mr Kaulima's part does not give rise to a point of law. 
Mr Kaulima turned to various matters he raised concerning what was available to, and thus before, the appeal judge from the record of proceedings before the reviewer, and I will now give some examples. 
Mr Kaulima said that in his original notice of appeal he had requested “a copy of all review recorded information audible and viewable” and that indeed is so. 
It would seem that here, in part at least, Mr Kaulima harked back to his 26 page written submission to the reviewer and if, or to the extent, that is the case I have already dealt with the point; but if something else is intended then regretfully it is unclear what that is and, fundamentally, the appeal judge was hearing the merits of the case afresh anyway. 
Mr Kaulima also turned to matters concerning the facilities and support available for him at the review, but that was to overlook that his appearance before the Court offered a fresh opportunity for a complete consideration of the merits of his case. What did or did not happen at review cannot be of any moment in that respect. 
Towards the end of his submissions on the current application, and when he finally came to the issue of appeals on questions of law, Mr Kaulima seemed simply to say, if I may summarise, that the applicable statute was that of 2001 — all and everything included in it — and that all concerned must follow that. 
Mr Kaulima's position was “for the judge in his reserve judgment to not consider any section of the Act 2001 that may apply to the benefit of the appellant”. To complete the sentence, and thus capture what he presumably intended, I add the words “would be wrong”. However he did not identify any provision of the Act requiring consideration by the judge which was not expressly or implicitly considered. 
Finally, Mr Kaulima ventured into what he said was “new information”. He said that there were a number of very important medical documents that were not included. But this was not a case about the medical evidence: rather one simply concerning relationships between Mr Kaulima and the Corporation. 
It was surely the case here that, as the appeal judge identified, the issue was simply and only whether the appellant had unreasonably refused, or unreasonably failed, to comply with s 72(1)(c) and on the facts the judge so found. 
So far as I can see, that finding was clearly based on an impression justified by facts that were before the Court after both parties had had the opportunity to present and be heard on those. 
I would add for completeness that counsel for the respondent helpfully referred me to Farquhar 176/2005 where Judge Cadenhead held: 
From this decision it is clear that the right to an entitlement is conditional upon a claimant acting in accordance with reasonable requirements. The power to decline to provide an entitlement, which is conditional on a person entitled acting unreasonably, is an enforcement power given in the public interest. ‘It is available where there has been a breach of duty. It is not given for punitive purposes but in order to ensure that the duties of persons entitled are observed, so that the scheme operates effectively.’ 
In this case the claimant alleges that his privacy rights have been violated and therefore his refusal in the circumstances outlined was reasonable. 
This type of issue has been confronted in administrative law and I set out what I discern the approach to the solution of this type of problem: 
The starting point is that the Court should take an essentially practical rather than a legalistic approach and the whole factual matrix should be considered to ensure that practical justice is done: Isaac v Minister of Consumer Affairs [1990] 2 NZLR 606Has Cases Citing which are not known to be negative[Green] 
The principle of proportionality is applicable to appropriately balance between the countervailing principles and to ensure there is not a manifestly unbalance in the circumstances and that the unreasonableness was not oppressive: De Smith, Woolf & Jowell, Judicial Review of Administrative Action, 5th Ed, pp 600, 606. 
In considering this type of issue the context requires account must be given to the interests at stake. An objective test is applicable. In certain cases the legislative objective is sufficiently important to justify limiting a fundamental right provided that the measures designed to meet the objective is rationally connected and the means used are no more than what is necessary to accomplish the objective: R (Smith v Parole Board) [2005[ 1 All ER 755, R (Daly) v Home Office [2001] 2 AC 532Has Cases Citing which are not known to be negative[Green] 
In the end the issue will be solved by considering in the context of the circumstances whether the requirement of the compensation legislation was rationally carried out and was not more than necessary to accomplish its objective. If that was the case then it may be that the privacy considerations would give away on the issue of ‘unreasonableness’. ”
It seems to me that Judge Beattie's approach was consistent with that adumbrated by Judge Cadenhead, an approach that I would respectfully commend. 
I find nothing in the judgment under consideration in this case that is identifiable as indicative of there being room (in any material and substantial sense) to assert that the judge's approach was not in general conformity with the Farquhar approach or that (in any other way) otherwise apposite legal principles (or material matters of evidence) were not applied, or were misapplied or overlooked. 
Leave to appeal refused. 

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