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Accident Compensation Cases

Guillum-Scott v Accident Compensation Corporation (DC, 03/05/12)

Judgment Text

JUDGMENT OF JUDGE RODERICK JOYCE QC 
Judge Roderick Joyce QC
Reason for appeal 
[1]
Cover was granted to Mr Guillum-Scott on 24 November 1993 for a mental injury. Subsequently he applied for weekly compensation. That application led to the Corporation's decision of 3 July 1999 to pay that with effect from 12 July 1999. But because the injury was not work-related there was a one-week stand-down period. So the first date of actual entitlement was 19 July 1999. 
[2]
Ten and a half years later, in December 2010, Mr Jacques, as Mr Guillum-Scott's advocate, asked the Corporation to include in the calculation of unpaid earnings, the value of a house provided as part of Mr Guillum-Scott's employment and the proceeds from 25 calves said to have been likewise supplied on an annual basis. 
[3]
On 25 March 2011 the Corporation wrote to Mr Guillum-Scott (the entire letter is set out at [23] below) in terms that, weekly compensation having been assessed and a decision (which was not then the subject of any review application) consequentially delivered on 3 July 1999, the Corporation could not issue a new decision now. 
[4]
The Corporation said that Mr Guillum-Scott could seek to pursue an out-of-time application for review of the 1999 decision if he wished to have the matter reconsidered. 
[5]
Mr Guillum-Scott determined to treat that letter as a decision. So, through his advocate, he immediately made application for a review of it as just that, a decision. 
[6]
The outcome of that was that the review officer declined jurisdiction, finding that the letter of 25 March 2011 was not a reviewable “decision” as defined in s 6 of the Act. From that decision Mr Guillum-Scott appealed. 
[7]
His notice of appeal puts in issue the jurisdiction of the reviewer to make any decision at all, asserting that the review had not been set down in time and saying that he was therefore entitled to a deemed decision. Alternatively, the notice asserts that the review officer had been wrong to conclude that the letter in question did not constitute a decision. 
Background 
[8]
Some elements of the history of the matter have already been recorded above, but it is necessary to set out a more complete picture before the Court comes to the issues and their determination. 
[9]
For the 12 months prior to 12 July 1999 Mr Guillum-Scott was a farm manager. He worked 55 hours a week and was paid $27,500 annually. He now says that he was also supplied a three bedroom house free of charge and given 25 head of calves to rear and deal with as he wished each year. 
[10]
In 1999, when payment of weekly compensation was under consideration by the Corporation, Mr Guillum-Scott's employer had been asked to complete an Employee Earnings Certificate in standard form. That sought information including “the gross taxable earnings of the employee while in your employment. Include all overtime, taxable allowances and benefits, but do not include non-taxable items.” 
[11]
The employer's response did not refer to any gross taxable earnings (as thus described in the form) beyond the already mentioned $27,500 per annum and some sick leave paid. The quantum of the weekly payments as thereafter determined by the Corporation obviously reflected this state of affairs. 
[12]
Mr Guillum-Scott's belated approach to the Corporation in December 2010 was followed up by the submission to it of an affidavit he had made in which he first of all suggested that the nature of the form did not lend itself to disclosure of other than monetary benefits. 
[13]
He then swore to the following: 
“The House 
7.
My employment package also included a three bedroom house on the property that was provided to me at no cost and 25 calves each year that I could rear then sell or keep to grow for a second year. 
8.
Enquiries have been made with IRD who advise the house cannot be provided as a fringe benefit (and even if it could, the same principle would apply) and that it counts as ‘income’ and the employer is required to show that on PAYE returns and pay the appropriate PAYE that goes with it. 
9.
My advocate drafted a letter … which he sent with an email to (the employer) on 24 December 2010 … Attached to the letter was annexed/from the Department of Statistics website showing the shift of inflation since 1998 … The email was to ask (the employer) to confirm the truth of what I am saying to ACC. 
10.
We received an email back from (the employer) on 6 January 2011 …  
11.
It is unhelpful that (the employer) said they did not recall the stock but they do accept the house was supplied to me. 
12
It is my understanding they had a market valuation done recently on that house and it is currently rented out at $275/week. $275 per week is equal $207.82 when I worked there. 
13.
The $207.82/week accommodation in lieu of income is actually in my hand and therefore net of PAYE giving my gross income on the rent as $259.77/week gross (or $13,508.30) annually. ”
[14]
Then, as to the stock, he went on to say: 
“14.
… I was given 25 calves each year. I sold them through an independent stock agent who ripped me off on prices and I only received $7,000. The animals would usually get between that and $11,000 at the stock yards so $9,000 gross is probably a fair figure to allow for this income. 
15.
The $9,000/year was gross income and I had to pay my own tax out of that1
| X |Footnote: 1
The Court has not been offered any independent evidence as to whether or not that tax was paid. Moreover, it seems improbable (if indeed the appellant did pay tax on stock sales) that he would have done so on a figure he says he should have got, rather than on the figure he says he actually got. 
16.
I went and saw (my employer) on Monday 17 January 2011 to talk it through with him but for some reason he was extremely hostile. His arms were folded and he refused to even shake my hand which really upset me and it took me a lot of effort to control my temper not to hit him. He said his daughter was a lawyer and this matter was too old, even for the IRD to try and get more tax out of him and to basically to get off his property. I am not sure why he was so hostile — I was not trying to get him into trouble, just get the truth out. ”
[15]
I note that one of the exhibits to this affidavit was an email from the employer which read: 
“Unfortunately we do not think we can be of any help to you. The time lapse of 10 years makes it very difficult. 
The house was rent free and went with the job on the farm. 
We have no recollection or records of any animals. 
… ”
[16]
Also before the Court was an email from the IRD advising that: 
“Free accommodation cannot be provided as part of employee remuneration. 
Accommodation is considered to be a benefit allowance. This is a payment which benefits the employee and is made in addition to salary and wages. Other examples include food and farm or cottage board. 
Employers may pay benefit allowances to employees, however these allowances are taxable. Taxes payable on the difference between the market value of the benefit, and any amount paid by the employee. ”
Neither party disputed this analysis. 
[17]
On 7 March 2011 the Corporation sent Mr Jacques an email to the effect that the Corporation had before it a “specialist recommendation” that it: 
“▪
Not consider the rental value of the house as earnings for weekly compensation. 
Request Mr Guillum-Scott to provide the Corporation with 1999 tax return details to determine his earnings from selling the cattle. ”
[18]
As to the house, the email included this: 
“The definition of ‘earnings as an employee’ under the AI Act 1998, in relation to any person and any income year, means all source deduction payments of the person for the income year. 
To accept the rental value of the house as ‘earnings as an employee’ for weekly compensation, it should be shown that the house was provided as part of the employment package and that tax (PAYE) was paid for the value of the benefit, If tax was not paid, then it is not considered as source deduction payments to be considered as ‘earnings as an employee’
A written employment contract would stipulate the value of the benefit for tax purposes. Here the value of the benefit has been deduced from current value of the house with Consumer Price Index as the discounting rate. 
While (the employer) states that the house was provided as part of Mr Guillum-Scott's employment, it is not known whether this was a taxable benefit. The ACC 3 Employee Earnings certificate requested to state the gross taxable earnings, including overtime, taxable allowances and benefits. ”
[19]
This communication then turned to the matter of the calves. Noting that in his affidavit Mr Guillum-Scott had said that he had been responsible for paying taxes on his income from selling cattle, it requested that he verify this by providing copies of the tax return in question. 
[20]
The Corporation's request was met with this response from Mr Jacques on his client's behalf: 
“Ray will not be providing tax returns as it is not relevant to your enquiries. The only matter you need to be satisfied is whether Ray actually received $9,000 of animals per year as gross income in conjunction with his employment2
| X |Footnote: 2
See [14] above where Mr Guillum-Scott is recorded as having said he actually only got $7,000. 
. I consider this has been adequately proven but in the event you consider it has not then I will have Ray obtain the further affidavit of his personal partner at the time, and some of his many friends who will attest to this fact. ”
[21]
At the end of his affidavit Mr Guillum-Scott spoke in strong terms to the effect that he had raised these matters with the Corporation over the years and that his advocate had asked for copies of relevant file notes but none had been supplied. 
[22]
Here I record that, in an email to Mr Jacques of 16 March 2011, the case manager advised that the Corporation had no such records. It was also noted that Mr Guillum-Scott's expressions over the years of concerns about his level of weekly compensation had related to deductions made for childcare support and court fines. 
[23]
Then followed the now contentious Corporation letter to Mr Guillum-Scott of 25 March 2011 which, in its completeness, was in these terms: 
“You have made contact with ACC as you believe that your weekly compensation was incorrectly calculated as we did not take into account the non-cash benefits of your pre-injury employment package which included a 3 bedroom house at no cost and 25 calves that could be reared on the property then sold. This matter was referred to our Customer Service Technical Support for their input. They have recommended the following: 
Your weekly compensation was assessed and a decision was issued on 3 July 1999. This decision was not reviewed by you therefore the 1999 decision must be accepted as correct. ACC cannot issue a new decision now. You have to apply for an out of time application for review of the 1999 decision if you wish ACC to consider this matter. 
CSTS have also indicated that the lateness of the application prejudices the Corporation. This aside, there is no evidential basis upon which ACC could accept the claim. 
Section 135(3) of the Injury Prevention, Rehabilitation and Compensation Act 2001 indicates the following: 
‘ … The corporation must accept a late application if satisfied that there are extenuating circumstances that affected the ability of the claimant to meet the time limits, such as: 
(a)
Where the claimant was so affected or traumatised by the personal injury giving rise to the review that he or she was unable to consider his or her review rights; or 
(b)
Where the claimant made reasonably arrangements to have the application made on his or her behalf by an agent of the claimant, and the agent unreasonably failed to ensure that the application was made within the required time; or 
(c)
Where the Corporation failed to notify the claimant of the obligations of persons making an application ’
I have enclosed the Customer Service Technical Support recommendations for your information and a review application. Please do not hesitate to contact me on 04 816 6790 or via the 0800 number. ”
[24]
Mr Guillum-Scott immediately lodged an application for review form in relation to the letter. On 27 March 2011 a Corporation officer got in touch with Mr Guillum-Scott's advocate to advise that it was requesting a preliminary hearing to “discuss the fact that the client is reviewing a letter from ACC that has no review rights”. On the same date the Corporation referred the matter to Dispute Resolution Services Limited (DRSL). 
[25]
On 8 April 2011 DRSL advised the parties that it would be responsible for conducting the review and on 21 April a DRSL case co-ordinator, who had by then spoken to both the Corporation and Mr Jacques, made this note: 
“ACC has agreed to do this at 3 pm on 4 May, however, when I rang the advocate he asked for it to be in Auckland as he works out of Auckland and is only in Taupo at the weekends, the client won't attend. He spoke about exchanging subs and he asked if it could, in fact, be done OTP3
| X |Footnote: 3
On the papers. 
as it is a very narrow issue of whether there is a ‘decision’. I said I would advise ACC and the reviewer will issue time-frames. ”
[26]
Thereafter, on 28 April 2011, the case co-ordinator wrote to the parties in these terms: 
“Further to our recent conversation, I confirm that the parties would like this matter conducted ‘on the papers’
The reviewer has therefore set the following timetable for submissions to be exchanged. 
ACC by 16 May 2011. 
Mr Jacques will then have until 31 May 2011 to complete his submissions. 
Should the reviewer require any further information then she will issue fresh instructions. 
If either party is unable to meet the time-frames set out above, please contact me at least four days prior to the closing date. ”
[27]
Written submissions were filed for the Corporation and Mr Guillum-Scott on 16 and 18 May respectively. The Corporation responded to Mr Guillum-Scott's submissions on 30 May and, so I was told, there was then some dispute as to its entitlement to do that. 
[28]
On 8 June 2011 the parties were advised that the reviewer had directed that the additional submissions from the Corporation be accepted but with Mr Guillum-Scott to have the opportunity to file further submissions by 15 June. None were filed. 
[29]
On 28 June 2011 Mr Jacques wrote to DRSL in terms including this: 
“The date for his hearing has not been set down within 3 months, as per s 146(1). He is now entitled to a Deemed Decision in his favour. ”
[30]
A DRSL case co-ordinator responded immediately and in these terms: 
“I have attached the reviewer's last instruction (dated 8 June 2011) as I don't quite follow your reasoning as to the deemed decision because the review had not been set down within three months. The review is being conducted on the papers and the reviewer's last instruction states that the hearing will close on 15 June, After the date the hearing is closed, the Act allows 28 days which the reviewer has to issue a decision. 
That decision, in fact, issued on 11 July 2011 and the essence of it was, as foreshadowed, that the reviewer not being satisfied that the 25 March 2011 was a reviewable decision under s 6 of the Act jurisdiction was declined. ”
The law 
[31]
Section 6 of the Act provides that a “decision” or “Corporation's decision”— 
“Includes all or any of the following decisions made by the Corporation: 
(a)
A decision whether or not a claimant has cover: 
(b)
A decision about the classification of the personal injury a claimant has suffered (for example, a work-related personal injury or a motor vehicle injury): 
(c)
A decision whether or not the corporation will provide any entitlements to a claimant: 
(d)
A decision about which entitlements the Corporation will provide to a claimant: 
(e)
A decision about the level of any entitlements to be provided: 
(f)
A decision relating to the levy payable by a particular levy payer: 
(g)
A decision under the code about a claimant's complaint. ”
[32]
Section 134 of the Act provides that a claimant may apply to the Corporation for a review of “any of its decisions on the claim”
[33]
Then there is s 146 which is in these terms: 
“146 Deemed reviewed decisions 
(1)
The reviewer is deemed to have made a decision on the review in favour of the applicant if — 
(a)
The date for hearing has not been set within three months after the review application is received by the Corporation; and 
(b)
The applicant did not cause, or contribute to, the delay. 
(2)
The date of the deemed decision is 3 months after the review application is received. ”
[34]
In view of Mr Guillum-Scott's reaction (per medium of Mr Jacques) to the Corporation's tax return4
| X |Footnote: 4
See [20] above. 
request, I should also mention s 55 of the Act which requires a claimant to assist the Corporation in the establishment of cover and entitlements. 
[35]
The section says that a claimant must, when reasonably required to do so by the Corporation, give the Corporation any relevant information that it requires. In the present circumstances that would certainly have included an obligation to comply with a request for tax return information. 
The issues 
[36]
Mr Tui suggested (and the Court accepts) that there were two issues for determination in this appeal being: 
“▪
Whether the Corporation's letter of 25 March 2011 was a ‘decision’ capable of review, and 
Whether the appellant was entitled to a deemed review decision under s 146. ”
Argument for Mr Guillum-Scott 
(First issue) 
[37]
As regards the first issue, Mr Jacques argued that if the Corporation considered a request for compensation on new facts (i.e. facts not previously brought to the attention of the Corporation) and arrived at a conclusion, that was a new decision and could not be read as no more than a confirmation of an earlier decision. 
[38]
Mr Jacques then properly (because it did not help his case) referred to Thomas & Jones (145/06). In that case, one in fact referred to by the reviewer, Judge Cadenhead had this to say: 
“[24]
There have been numerous cases involving the issue of what constitutes a decision, and some of these cases are: 
Hull, 249/97 
Tuioti, 327/00 
Fergusson, 84/00 
Osborne, 105/06. ’”
[25]
From those decisions the following may be stated: 
(a)
The mere confirmation of a prior decision does not constitute a new decision. 
(b)
The request of a claimant to reconsider or revise its original decision does not turn into a fresh decision if the Corporation declines to do so and maintains its earlier decision was correct. 
(c)
The Corporation is able to issue an amended decision, which amends, revokes or substitutes a new decision, and in that event, there are new appeal rights. 
(d)
A statutory estoppel might arise, but the Court should not be too ready to look for one. ”
[39]
As the present reviewer had gone on to note, in Smith (305/04) the Court had held that “whether a decision which has been made needs to be determined in the factual context and circumstances.” That proposition accords with the more general precept of construction that context as well as content is important. 
[40]
Mr Jacques also submitted that “after a claimant makes a request to ACC for an entitlement, should they (meaning, obviously, the claimant) make a further request for something else, it would be artificial to say because the Corporation had already made a decision on the first request that the claimant was barred from asking something else”. So far as that submission goes, I have no quarrel with it. 
[41]
The follow-on submission was that making a request to the Corporation on a different aspect, or different facts, required it to make a decision and any delay or failure to do so would trigger a claimant's rights to review. 
[42]
Mr Jacques also mentioned s 65 of the Act which empowers the Corporation, if it considers it has made a decision in error, to revise that decision at any time, whatever the reason for the error. That provision goes on to set out that such a revision may amend the original decision, or revoke that and substitute a new decision, and it lastly provides that “every amendment to a decision, and every substituted decision, is a fresh decision” - subs (4). 
[43]
Mr Jacques argued, as regards his client's approach to the Corporation in December 2010, and the follow on from that, that the supply of the house and asserted provision of the calves formed part of the employment package and that the IRD position on the provision of a house and calves was very clear — it was “income”
[44]
Mr Jacques then suggested that the conduct of the Corporation was such as to deny Mr Guillum-Scott the opportunity to provide better proof about the house and calves. That proposition is difficult to reconcile with Mr Guillum-Scott's refusal, through Mr Jacques, to co-operate in the fundamental area of tax returns. 
[45]
Mr Jacques argued that, read in context, the 25 March 2011 letter comprised a “decision” in that it amounted to a conclusion or judgment, an act of deciding — that was not exactly how Mr Jacques put it, but is extracted from the Shorter Oxford English dictionary, and it was a dictionary meaning that Mr Jacques was pursuing. 
(Second issue) 
[46]
Mr Jacques submitted that dealing with a preliminary matter (here the jurisdictional one) could never be identified as the actual hearing of a review application and, given the chronology, no hearing date had been set within three months after the review application was received by the Corporation: Section 146 had, he asserted, swung into effect. 
[47]
The result, so it was submitted, was that what the reviewer did was nugatory and Mr Guillum-Scott's position must be recognised as being as if he had succeeded on a substantive and effective review. 
[48]
It could not even matter, so I understood him to unequivocally argue, that there might in the first instance have been (contrary to his case) an “invalid”5
| X |Footnote: 5
Meaning, I took it, quite without effect. 
decision by the Corporation. 
Argument for the Corporation 
[49]
Mr Tui's primary proposition was that the letter of 25 March 2011 was not a “decision” as it did not alter the effect of the original 1999 decision as to Mr Guillum-Scott's entitlement to, and in particular the quantum of, weekly compensation from July that year. 
[50]
In 2010, Mr Guillum-Scott had sought recalculation of the quantum of his weekly compensation from July 1999 by taking issue with that the original calculation. The Corporation's ultimate response of 25 March 2011 did no more than rehearse the 1999 decision, one which, if Mr Guillum-Scott was not now satisfied with it, left him naught but the recourse of seeking a late review from the original decision. (This seemed to overlook that what I will call the “room for some flexibility as regards time limits” provision of s 135 of the present Act was not an ingredient of the 1998 statute6
| X |Footnote: 6
See s 136 of the 1998 Act. I return to this topic at [57] below. 
). 
[51]
As to the deemed review argument, Mr Tui submitted that there could be no entitlement to a deemed review decision where the application for review was not, in the first place, founded on a decision. In the absence of such there was nothing to review7
| X |Footnote: 7
If the Corporation prevaricates when a decision is called for on entitlements, s 134(1)(b) may be called in aid. 
[52]
Mr Tui acknowledged O'Neill v ACC (CIV-2008-404-8482 HC Auckland, Heath J, 22 December 2010) where the High Court determined that what was required to be set down (but not necessarily heard) within the 3 months period, was a substantive hearing. 
[53]
He submitted that, if it were otherwise applicable, O'Neill was distinguishable on the facts. In the present case the reviewer had simply made directions for the filing of written submissions and it had still been open to either party to present arguments including on a substantive issue basis. 
[54]
In any event, Mr Tui noted DRSL had been in touch with the parties with the aim of setting the review down for hearing on 4 May 2011 (a date to which the Corporation had agreed) but it was Mr Jacques (thus the appellant) who requested that the matter be dealt with on the papers, and it was that which operated to ensure a delayed disposition.8
| X |Footnote: 8
Note here s 146(1)(b) set out at [33] above. 
 
Discussion 
[55]
In Hull (249/97) the Court said, after considering dictionary definitions of the word “decision”, that: 
“If those meanings of the word decision are applied in the context of s 134(1)(a) of the current Act it is clear9
| X |Footnote: 9
My interpolation. 
that it is only the decisions which 
(i)
Are the act of deciding the claimant's claim or entitlement, 
(ii)
Are the manifestation of the process of the conclusion that has been reached upon a particular claim or entitlement, 
(iii)
Conclude the consideration process and state the result, or 
(iv)
Identify the defining moment on any issue pertaining to a claim for entitlement 
that are intended and meant by that word. ”
[56]
In the present case the point of focus is the letter of 25 March 2011. In my view a fair reading of that demonstrates that it can be distilled down to a communication of the following: 
A recognition of the approach made by Mr Guillum-Scott by which he claimed that his weekly compensation had been incorrectly calculated because the house and calves had not been brought into the equation: 
That the Corporation's Customer Service Technical Support Group had “recommended” the position be that compensation had been assessed and a decision issued accordingly on 3 July 1999. 
There had been no application to review that decision. 
The Corporation could not issue a new decision now. 
Mr Guillum-Scott would have to apply for an out-of-time application for a review of the 1999 decision if he wished to pursue reconsideration. 
The Group had also “indicated” that the lateness of the application prejudiced the Corporation and “this aside, there is no evidential basis upon which ACC could accept the claim”
Erroneously, because it had no application to a 1999 decision, s 135(3) of the current Act was then set out — the subsection dealing with extenuating circumstances for which there was no 1998 Act equivalent; and 
A review application form was enclosed. 
[57]
The provision of the form was, obviously enough, related to the suggestion that Mr Guillum-Scott might apply out-of-time for a review of the 1999 decision. However, as I have already touched on briefly (see [50] above) and as the reviewer herself correctly noted at the end of her determination: 
“ … I would observe that the advice ACC has given regarding the lodging of the late application for review may not be entirely correct. I note that the primary decision was issued during the currency of the 1998 Act. Hence, the review provisions applying under that statute will apply. Under the 1992 and 1998 Acts, there was a strict three month time frame for lodging an application for review. The 2001 Act introduced the ‘extenuating circumstances’ provision in s 135(3). This applied from 1 April 2002. However, that provision cannot be applied retrospectively to applications for review of decisions issued under the 1992 or 1998 Act. This has been confirmed in the District Court decision of Ward (64/03). ”
[58]
But the short point, as I see it, is surely that the question of the accuracy or otherwise of what the Corporation said in the letter about review rights cannot affect one way or any other the true construction to be given the letter. 
[59]
My particular focus is on that part of the letter that comprises its first paragraph down to and inclusive of the third sentence in the second paragraph, “ACC cannot issue a new decision now”
[60]
I recognise that the choice of “recommended” is an unhappy one, especially when nothing is then said about the fate of the “recommendation”
[61]
I say that because the inclusion of it might be thought to suggest its (formal in some way) adoption. But there is more to the letter than that. What I count as the crucial words (viewed in their overall context) comprise the following: 
“Your weekly compensation was assessed and a decision was issued on 3 July 1999. This decision was not reviewed by you therefore the 1999 decision must be accepted as correct. ACC cannot issue a new decision now. ”
[62]
Looking at those words in their overall context I cannot read them as of themselves amounting to a new, and thus reviewable, decision: indeed it is clear, in my view, that they convey quite the opposite. 
[63]
I recognise that it is not apparent whether the author of the Corporation's letter, when saying that the 1999 decision had to be accepted as correct, was in any way mindful of s 39010
| X |Footnote: 10
Apposite, if of any relevance, rather than s 65 mentioned by Mr Jacques, as s 390 specifically refers to decisions preceding the 2001 Act. 
of the Act and the power it gives the Corporation to revise a previous to the 2001 Act decision if it considers that to have been a decision made in error, however arising. But then the Corporation's letter does not acknowledge any possibility of the 1999 decision being erroneous. 
Conclusion 
[64]
I have been given no reason to revisit the now well established in this Court principles identified by Judge Cadenhead as set out at [38] above. And, given the nature of the 25 March 2011 letter here in question, Hull (see [55] above) runs against the case for Mr Guillum-Scott. 
[65]
In light of the views I have so recently expressed as to the effect of the letter, and in light of the just rehearsed and applicable principles, I would hold that the 25 March 2011 letter did not contain or convey a “decision” within the meaning of s 6 of the Act. 
[66]
Fundamentally, the letter: 
does not decide any claims of entitlement of Mr Guillum-Scott (in fact it identifies those as already decided issues); 
does not make manifest a process-related conclusion upon any claim or entitlement; 
does not conclude any process at all — to the contrary (albeit erroneously) it raises the possibility of belated review of a previous decision; 
It does not operate to identify any defining, issue-related, moment. (It simply rehearses the status quo.) 
[67]
In short then: 
the only extant decision of the Corporation is that of 3 July 1999; 
the 25 March 2011 did not constitute a decision; 
that being so, there was no such decision available for review and that must mean that no question of a deemed review outcome can arise (something cannot be made of nothing). 
[68]
I would add that had the 25 March 2011 letter been a decision, so that the deemed review decision issue was of significance, it could well have been said that Mr Guillum-Scott's election of an “on the papers” disposition brought into plain effect s 146(1)(b). However, in the way I view the main issue that, the just discussed issue11
| X |Footnote: 11
Which was far from fully argued. 
, can be left moot. 
Result 
[69]
Thus the appeal is dismissed. 


The Court has not been offered any independent evidence as to whether or not that tax was paid. Moreover, it seems improbable (if indeed the appellant did pay tax on stock sales) that he would have done so on a figure he says he should have got, rather than on the figure he says he actually got. 
See [14] above where Mr Guillum-Scott is recorded as having said he actually only got $7,000. 
On the papers. 
See [20] above. 
Meaning, I took it, quite without effect. 
See s 136 of the 1998 Act. I return to this topic at [57] below. 
If the Corporation prevaricates when a decision is called for on entitlements, s 134(1)(b) may be called in aid. 
Note here s 146(1)(b) set out at [33] above. 
My interpolation. 
Apposite, if of any relevance, rather than s 65 mentioned by Mr Jacques, as s 390 specifically refers to decisions preceding the 2001 Act. 
Which was far from fully argued. 

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