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Accident Compensation Cases

Edge It Ltd v Accident Compensation Corporation (DC, 23/10/13)

Judgment Text

Judge D A Ongley
The points discussed in argument in this appeal were: 
whether a review application was posted before time expired, when the respondent recorded it as having been received after time had expired; 
whether a letter from the respondent confirming an earlier decision was a “decision” giving a further right of review; 
whether the appellant, being a levy payer and not a claimant, could seek an extension of time on the basis of extenuating circumstances. 
The appellant claimed to have sent an application for review to the Corporation eight days before time expired. The Corporation did not receive it. The appellant's representative contacted the Corporation five days after expiry of time, and was informed that the application had not been received. A copy was then sent, but the Corporation refused to accept it on the ground that it was out of time. 
The appellant paid accident compensation levies under a Classification Unit (CU) 47990. The appellant's administration manager, Ms Pamela Rattray, requested a change to CU 45230 Industrial and Chemical Product Wholesaling. ACC initially agreed but then decided that the classification was wrong and notified the appellant that the correct classification was 45390 Hardware Goods Wholesaling (not elsewhere classified). 
The decision to apply CU 45390 was issued on 30 October 2009, with right of review. The review application was dated 22 January 2010 but the Corporation had no record of receiving it until a copy was sent on 10 February, after an enquiry had been made. The time for applying for review is provided in s 135, of which the relevant parts are: 
How to apply for review 
A review application is made by giving an application that complies with subsection (2) to the Corporation. 
The application must - 
be written: 
be made within 3 months of - 
the date on which the Corporation gives notice under section 64; or 
Despite subsection (2)(f) and (g) and any time frame prescribed in regulations made under section 328A for the lodgement of a review application, 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 - 
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 
where the claimant made reasonable 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 
where the Corporation failed to notify the claimant of the obligations of persons making an application. ”
The respondent argues that subs (3) does not apply to require the Corporation to accept a late application in any circumstances from a levy payer seeking a review of classification, because the subsection refers to a claimant, being a person claiming cover or entitlements, not an employer claiming a classification. 
Ms Rattray represented the appellant at this appeal hearing. She maintained, as she had earlier advised the Corporation, that she posted the review application in time on 22 January 2010. She could not testify as to the address to which the form of application was posted. 
On 26 March 2010, before the review hearing, the Corporation wrote to the appellant stating that it had revoked its decision to use CU 45230 and would apply 45390 from the 2007/2008 levy period. This was a repetition of the decision of 30 October 2009. The respondent says that it was not a decision, only a confirmation that a decision had been made, and so there was no right of review. The 26 March letter was certainly worded in the manner of a new decision. It stated: 
“After careful consideration of all the information now available, ACC has decided to revoke its decision to use classification unit 45230 — Industrial & Chemical Product Wholesaling and substitute a new decision. The original decision was incorrect at the time because ACC did not understand the nature of your activity. 
From the 2007/2008 levy period, the classification unit that will apply will be 45390 - Hardware Goods Wholesaling (not elsewhere classified). 
As this is a new decision, you are required to withdraw your application for review, and if you are still unhappy with this classification unit, you will need to fill in a new application for review. Any new application for review would need to be received within 3 months from the date of this letter. ”
If the appellant had acted on that letter by making a further application for review, there would have been a serious question that, despite the substance of the letter being confirmation of a prior decision, the Corporation was bound by its clear representation that a review application should be withdrawn and a new application made. But the appellant did not make a new application for review, so the question whether this was a new decision does not need to be answered. For completeness, Mr Tui referred to appeal judgments dealing with letters confirming earlier decisions. There is no need to discuss those decisions here. 
The Corporation wrote again on 13 April 2010 advising that its primary decision (30 October 2009) would not be altered. A review was then convened. In a decision on 14 June 2010 the reviewer said: 
“The 30 October letter simply refers to a ‘change’ to the 30 October decision (the ‘original decision’). In my view this is consistent with the power given to ACC under section 65(3)(a) to ‘amend the original decision’. There is no express or even implied reference to the original decision having been revoked. This means that the original decision remained in force or ‘alive’ but with the specified amendment or change taking effect. 
However the legislation provides for an alternative and distinct treatment of an original decision found to have been made in error. That is under section 65(3)(b) which allows ACC to revoke the original decision completely and substitute a new decision. 
In this case, I take ACC's letter of 26 March as unequivocally revoking the original decision, and substituting it with the new decision. My view is that by revoking the decision of 1 October ACC brought that particular decision-making trail to an end. That trial included the 30 October decision to change or amend the original decision. ”
Mr Tui submitted that the Reviewer applied a fine-tooth comb, but that he should have looked at the real effect of the decision, which was the same as the earlier decision and merely confirmed that the appellant's CU was changed from 45230 to 45390, effective from the 2007/2008 levy period. 
An important aspect of the review decision was the recital of evidence accepted by the Reviewer. Those fact findings were not contested in the appeal. The Reviewer found that the review application was received by ACC on 10 February 2010, and that Ms Rattray had earlier faxed a copy on 5 February when she found that the application had not been received. The decision recorded: 
“Ms Rattray stated that she had signed and posted the application on 22 January 2010. She subsequently followed this up by telephoning ACC on 5th February to confirm the application had been received. She was advised that there was no record of any application having been made and so she immediately faxed a copy of the application to ACC. Ms Rattray showed me a fax activity report which confirmed a fax was sent to ACC on 5th February. 
Ms Rattray said that she felt she had done everything she could to submit the application on time although she conceded that she had no proof that the application had been mailed on the date it was signed. I have no reason to doubt that what Ms Rattray stated was true. 
Ms Arnold, on behalf of ACC, conceded that the faxed application may in fact have been received by ACC on 5th of February. However she submitted that this would not change the fact that the application was still received out of time. ”
Concerning the conflict between the appellant's account of posting the review application and the respondent's account of not receiving it, Mr Tui made some submissions on the facts. The Corporation is in the business of recording receipt of review applications and its records should be taken as being reliable. Conversely, the appellant did not keep a record of posting the application and did not have evidence that it was properly addressed. There is no reliable evidence of an address to which the form was posted and there was apparently no cover letter. If the document was posted, its delivery point remains unknown. It was not received by the Corporation. Mr Tui submitted that Ms Rattray would have been likely to contact the Corporation before 30 January, not as late as 5 February, if she had any doubt about the application reaching its destination. 
Ms Rattray noted that the Corporation's two addresses were printed at the foot of the review application form and she would have posted it to the correct address in the ordinary course. Of the two printed addresses, one is for claimants or employers in relation to work related personal injuries, and the other is for employers in relation to disputes about levies. The Corporation has no record of the application being received at either of those addresses. 
There is a presumption of posting on the day on which the document was dated. Section 307(3)(b) provides for delivery of a document by posting it to the usual address of a person (the Corporation). A document posted under subsection (3)(b) is deemed to have been delivered to the person at the time it would have been delivered in the ordinary course of post. Subsection (5) provides that, for the purposes of proving delivery: 
It is sufficient to prove that the document was properly addressed; and 
The document is presumed, in the absence of proof to the contrary, to have been posted on the day on which it was dated. 
The respondent says there is no proof that the document was properly addressed and the fact that it was not received provides evidence that it was not properly addressed when it was posted. The respondent also says that the presumption in subs (3)(b) is displaced by proof to the contrary, that the Corporation did not receive an application. 
The scope of this appeal is very narrow. The only question is whether a review application was posted to the Corporation on 22 January 2009. 
Apart from the two printed addresses of the Corporation at the foot of the form, there is no evidence to confirm that Ms Rattray posted the application to the correct address. The appellant did not keep any record of posting but must have at least retained a copy, because that was used in order to fax a copy to the Corporation on 5 February. A copy must then have been posted to arrive on 10 February, when the Corporation did make a record of receiving the application. If that had been the original, the respondent would certainly have said so. 
The Reviewer did not doubt the evidence of Ms Rattray that she had signed and posted the application on 22 January 2010. That finding seems to be a reasonable one. There is no suggesting that Ms Rattray fabricated her evidence. She signed the form and it may be assumed that she dated it as shown. That satisfies the presumed date of posting in s 307(5)(b). The fact that it was not received is evidence to the contrary, but it only proves that it was not received, not that it was not posted. 
As to the address, there were two addresses on the form, both being addresses of the Corporation. In my view it would have been sufficient to post the document to either address, even if the internal arrangements of the Corporation were separated into different sections. It is probable that the form was posted to an address shown on it and there is no evidence suggesting that it might have been sent to some other address. 
The standard of proof is on the balance of probabilities. The appellant cannot show with any certainty that the application was posted to an address printed on it on the date when it was signed. But in my view the evidence does reach the point of probability. 
I find that there is sufficient evidence to establish the requirements of s 307(5). The presumption that applies is that the document would have been delivered in the ordinary course of post. Given that there were eight days to go, there is no difficulty in applying the presumption and finding that the document was deemed to have been delivered before expiry of the time for review. 
For those reasons, the appeal is allowed. The Reviewer's decision is quashed and the application for review of the classification is referred back for setting of a new review date and for the substantive review to be heard. 
The appellant is entitled to reasonable expenses incurred for the hearing of the appeal. 

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