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Accident Compensation Cases

Smith v Accident Compensation Corporation (DC, 19/03/13)

Judgment Text

Roderick Joyce QC Judge
This has been an application by Mr Smith for leave to appeal to the High Court on a question of law from the 20 November 2012 judgment of Judge Beattie. 
Having read the judgment I find that Mr Barnett (who lodged submissions for the Corporation) has accurately captured the background to this application so I immediately take advantage of his chronology which was this: 
Mr Smith received backdated compensation from April 1990 to February 2002 (he has also received continuing — not backdated — weekly compensation from February 2002 on), 
He had previously sought and obtained interest on backdated weekly compensation for the period April 1990 to February 2002. This has been the subject of two prior District Court decisions on appeal. 
For the period April 1990 to October 1991 Judge Beattie determined that interest was payable from December 2004 — this being the date the Corporation first had the necessary information of the fact of the appellant's incapacity. (This is decision 108/2007,) 
For the period October 1991 to February 2002 the question again was (whether at) that date the Corporation had all necessary information concerning incapacity and Judge Cadenhead likewise determined interest was payable from December 2004 and that there was an issue estoppel in respect of that date as determined by Judge Beattie, (This is decision 114/08,) 
In 2010 Mr Smith, through his solicitor, sought an ex gratia payment of interest which the Corporation declined. 
Notwithstanding these two appeal decisions, the appellant in 2011 once again sought an earlier date for the payment of interest — asserting afresh an earlier date as being that from which the Corporation had all the necessary information concerning the fact of incapacity. 
On 19 August 2011 the Corporation, considering that it did not have new information since the previous District Court decisions (for example, the medical certificate of February 1994 now relied on by Mr Smith had been in evidence before Judge Cadenhead in his decision), declined to issue a new decision, At review it was held that this was not a reviewable decision. 
Mr Smith appealed and it is this (the consequent) appeal decision which is the subject of the present application for leave. 
His Honour Judge Beattie in his decision at [10] determined that the Corporation's letter of 19 August 2011 was advice that it was not intending to issue a new decision and of the reasons for that, As such, it was not a reviewable decision. 
His Honour then (see para [11] of the judgment) determined on the evidence that there was no basis for identifying any new date from which the Corporation was aware of the fact of incapacity and that the appellant had received interest from a date that had been “fully determined” on the evidence, 
The case for Mr Smith 
When he first gave notice of his intention to seek leave to appeal to the High Court on a question of law, the document Mr Smith filed identified the error of law as resting in the Judge “declining to look at new material evidence”. And of that he said “I will provide you with full details when you request them”
My attention then turns to Mr Smith's initial 18 December 2012 submissions in support of his application. Here he began by asserting that Judge Beattie had failed to take into account, or to exercise his discretion to hear or interpret, new and material evidence as to the initial period of disability following injury, 
Mr Smith, after expressing a level of displeasure at the way in which the appeal hearing had proceeded, then went on to argue that: 
“The Judge wrongly determined the period for which interest was payable in respect of arrears of weekly compensation and ignored the available new evidence that I wished to put before him that would have demonstrated beyond doubt that a case of disability was clearly evidenced, notwithstanding the loss by the respondent of its files and records. ”
Thereafter, and in this way and that, he pursued this line of argument. 
In doing so he adverted to s 156 of the Act which, so far as is material here, provides as follows: 
“Evidence at appeal 
The Court may hear any evidence that it thinks fit, whether or not the evidence would be otherwise admissible la a Court of law. 
If a question of fact is involved in an appeal, the evidence taken before or received by the reviewer about the question may be brought before the Court under any of subsections (3) to (5), subject to any order of the Court. 
Evidence given orally about a question of fact may be brought before the Court by the production of a copy of — 
The notes of the reviewer; or 
The reviewer's record of hearing; or 
A written statement read by a witness; or 
Any other material that the Court thinks expedient, 
Evidence taken by affidavit about a question of fact may be brought forward before the Court by the production of any of the affidavits that have been forwarded to the Registrar, 
Exhibits relating to a question of fact may be brought before the Court The production of any of the exhibits that have been forwarded to the Registrar; or 
The production by the parties to the appeal of any exhibits in their custody. 
Exhibits relating to a question of fact may be brought before the Court by — 
The production of any of the exhibits that have been forwarded to the registrar, or 
The production by the patties to the appeal of any exhibits in their custody, ”
As will be self evident from a reading of this provision, it offers a range of means by which evidence may be introduced on appeal. 
It may also be noted that s 150 of the Act says this: 
“District Courts Rules and this apply to appeal 
An appeal under section 149 is dealt with in accordance with the District Courts Rules made under section 122 of the District Courts Act 1947, as modified by this Act and any regulations made under it. ”
Following on from that reference, I note that the now current - and current when Judge Beattie heard Mr Smith's appeal - District Courts Rules provide by Rule 14.18 the following: 
“Powers of Court in relation to evidence heard on appeal 
The Court has full discretionary power to rehear all or any part of evidence taken before the decision-maker. 
The Court must rehear the evidence of any witness if the Court has reason to believe that any note of the evidence of that witness made by direction of the decision-maker is or may be incomplete in any material particular. 
The Court has full discretionary power to hear and receive further evidence on questions of fact, either by oral evidence or by affidavit. 
The Court may, in exercising its powers under this Rule and Rules 14.19 to 14.22, receive as evidence any statement, document, information, or matter that the decision-maker would have been entitled to receive at the hearing at first instance. ”
Plainly then, and in the overall, the Court's powers to receive evidence on the hearing of an appeal to this Court under the 2001 Act are extensive indeed. 
Mr Smith's expressed position is that the Judge was not entitled in the circumstances of his case to ignore and disregard what he identifies as then available new evidence, 
It is obvious from Mr Smith's submission in this respect that he has a fair grasp of the legal principles generally applicable to the admission of new evidence. In terms of general principle I could not fault him when he said that “new evidence which was not available at the time of an initial hearing or hearing at first instance which would make a material difference to the outcome of the case” should be admitted — that given that the other side would not in the process be unduly prejudiced and that there was no other significant impediment. 
Mr Smith also went on to contend that Judge Beattie had erred “in not permitting the parties the opportunity of reaching agreement to allow the respondent's letter of 19 August 2001 to be a decision capable of review and therefore appeal”
Leaving aside the apparent absence of any likelihood of any such an agreement ever being reached, this was certainly a clear sign that, with respect, Mr Smith might in fact be intent upon revisiting old issues, 
And indeed it then became clear that the gravamen of Mr Smith's complaint was that Judge Beattie was wrong in holding that the issues sought to be pursued (by every sign, issues to be reopened) had already been fully and finally determined. Mr Smith argued here that the Judge “failed to distinguish between my two claims as to the matters relevant to each claim and confused the issues”
Corporation's response 
This was principally that: 
No question of law capable of serious and bona fide argument arose from Judge Beattie's most recent determinations. 
For the period of arrears of weekly compensation in question, namely April 1990 to February 2002, there was a prior factual determination of the District Court that the date from which interest was payable was December 2004. 
Judge Beattie in the most recent judgment — that the subject of the present application — identified that the date from which interest was payable had already thus been determined; and in fact 
The appeal that had given rise to Judge Beattie's most recent judgment had the appearance of an endeavour to relitigate the earlier District Court decisions: in particular' that of Judge Cadenhead in respect of which Mr Smith had earlier sought leave to appeal to the High Court, but was found to be out of time, 
Mr Smith's rejoinder 
Mr Smith identified the purpose of his rejoinder as being to amplify his reasons for seeking leave and to respond to new points raised in the Corporation's submissions, He went on to assert: 
“It is important to note that there have been two separate claim file numbers: Judge Beattie in his decision 108/2007, 1990 to 3rd October 1991, and Judge Cadenhead in his decision 114/2008, 4th October 1991 on May 2007. 
The first has been fully disposed of, the only outstanding matter relates to the unpaid interest in respect of the second claim. 
The turning point in respect of the second claim is the determination of the point in time when my incapacity took place for the purposes of calculating interest. In my view there is adequate evidence available to precisely define that point in time and from when interest should be paid from the period commencing 3rd February 1994 and up to 27th February 2004, From that time on interest had been paid. 
The amount outstanding approximately $110,000, 
There is new evidence available by way of ACC records originally thought lost or mislaid and which has never been considered before to define the commencement of incapacity. That information is now in the ACC records which have now reappeared1
| X |Footnote: 1
Subsequent, presumably, to Judge Cadenhead's decision. 
and have been supplied to me. This information makes a material difference to the earlier findings and should be taken into account. 
The hub [sic] of my appeal is that Judge Beattie erred in the exercise of his discretion to consider the material in question. If the Judge had considered the new evidence then he would have been able to see a state of incapacity was established to the reasonable satisfaction of a certifying medical practitioner and so advised to ACC. In turn there would have been a proper basis for interest to be paid. 
Dealing fairly with the evidence and the issue will now enable closure on this long running matter to be achieved. The appeal is necessary to do that. 
In my respectful submission the respondent's submission overlooks the fundamental important right I have as a claimant to have fresh evidence considered now that it has come to light, On that basis, there is an important question of law at stake. There is merit in my claim and the point is supported by persuasive authority. The amount in question is sufficient to warrant an appeal and accordingly I submit that leave should be granted. ”
Mr Smith then proceeded to matters of detail raised on these accounts. 
Before proceeding to the discussion section of this judgment it is obviously necessary that I particularly refer to the 30 May 2008 judgment of Judge Cadenhead (114/08) and that I now do, noting the following: 
The issue identified by the judge was whether a 20 July 2007 decision of the Corporation upheld on review declining to pay interest on arrears of weekly compensation, based on its belief that its payment had been made within one month of the date on which it had all the information necessary to calculate and make payment, was correct. 
The claim for interest was from 4 October 1991 until February 2002. The personal injury had occurred on 2 January 1990 and there was also a further injury on 4 October 1991. The appellant had been backpaid from the period 4 October 1991 to 6 May 2007, 
The review decision had been based on the fact that Mr Smith could not show an incapacity for the period 4 October 1991 until 21 February 2002 and it was clear from an earlier decision of Judge Beattie that the period in dispute was not covered by that decision, at least not from the date that Judge Beattie had decided was the starting point. 
After setting out the background facts; referring in detail to the earlier decision of Judge Beattie (108/07); examining the course of the review hearing; alluding to the applicable legislation and to legal principles and the submissions made, His Honour proceeded to his decision. 
At the end of that and, despite the length otherwise of the judgment (which was contributed to by, with respect, the careful and comprehensive way in which Judge Cadenhead set out the overall picture) His Honour expressed his conclusions (and thus the disposition of the appeal) in these succinct terms: 
The primary facts, including documentation were it) the power of the respondent, but (hose facts were destroyed and they can no longer be produced. I have said in earlier decision [sic] that I found that the appellant was an honest man and I have no reason to doubt his submissions. 
However, in my decision, the appellant cannot sustain a date for the running of interest before the date fixed by Judge Beattie, namely 27 December 2004. There is an issue of estoppel in respect of that finding, 
For the reasons given, I allow the appeal, I find that the appellant is entitled to interest commencing from 27 December 2004. …  ”
I gather from Mr Smith's most recent submissions that materials regarded as lost at the time his case was before Judge Cadenhead may in fact have now been found. 
But given the binding impact of the earlier determinations of Judges Beattie and Cadenhead (which have clearly formed the basis of Judge Beattie's most recent determination in favour of the Corporation) Mr Smith, it seems to me, is nevertheless confronted with a state of affairs where those determinations remain effective in accordance with the principles derived from the fundamental one - that there must be an end to litigation even if, on occasion, it be later discovered the result is an injustice. 
In that state of affairs it seems to me that the Corporation is undoubtedly right in law when it effectively submits that Judge Beattie was bound to reach the conclusions that he did in terms of the issues that were before him. 
Given that to be so (and on what I have been told by the parties about the case that seems obviously to be the position) there is no apparent basis upon which I could send this case forward on a question of law, for the principles of issue estoppel and res judicata have been long and clearly established, 
Thus I count myself bound to find that there is no substance to the current application, So, as I will shortly record, it will be dismissed. 
Section 65 
But before proceeding to that formality (and while it is no part at all of the Court's function to offer advice to any party on the question of remedies they may or may not have) a thought has occurred to me — one that should be prefaced by a recital of s 65 of the Act: 
“Corporation may revise decisions 
If the Corporation considers it made a decision in error, it may revise the decision at any time, whatever the reason for the error. 
A revision may — 
Amend the original decision; 
Revoke the original decision and substitute a new decision, 
Every amendment to a decision and any substituted decision, is a fresh decision. ”
It could be said that this provision is broad enough to allow, in a proper case, circumvention of ordinary principles of res judicata or issue estoppel, It could then perhaps be argued that a decision was made in error if, on account the recovery of lost evidence, error is apparent, 
Thus Mr Smith may wish to consider (as would be sensible) taking professional legal advice on the possibility of making a request to the Corporation (based on the apparently now recovered — so I understand it - evidence) to revise the decision or decisions in question. 
However, for the reasons recently expressed, Mr Smith's current application for leave to appeal to the High Court on a question of law must be, and it is, dismissed. 

Subsequent, presumably, to Judge Cadenhead's decision. 

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