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Accident Compensation Cases

Grimmett v Accident Compensation Corporation (DC, 24/01/14)

Judgment Text

RESERVED JUDGMENT OF JUDGE D A ONGLEY 
Judge D A Ongley
[1]
The appellant did not appear on the hearing of this appeal. It was abundantly clear from the papers that the appeal had no chance of succeeding. At the hearing, I indicated to counsel for the respondent that I did not need to hear argument and that the appeal would be dismissed. 
[2]
The appellant then protested that he had wanted to appear. In fairness, I allowed time for him to apply for rehearing of the appeal and issued the following memorandum: 
[1]
This appeal was set down for hearing at Rotorua on 8 May 2013. The appellant did not appear and I reserved the appeal for judgment without asking for oral submissions from the respondent. 
[2]
The appellant had been given notice of the hearing and had been contacted by the court clerk on the morning of the hearing, but the indication was that he would not be attending. 
[3]
There had been some confusion. The first notice of hearing mistakenly stated the hearing date as 1 May instead of 8 May. Mr Grimmett emailed that he could not possibly be ready in two days time. The Registry replied apologising for the error and making it clear that the hearing was on 8 May. 
[4]
The respondent's submissions had been filed on 24 January 2012 with a copy sent to the appellant. On 2 May 2013, the Registrar sent to Mr Grimmett a copy of the respondent's submissions and a copy of a bundle of documents received from counsel for the respondent. 
[5]
On 8 May, a clerk at the Registry telephoned Mr Grimmett's home and spoke to him concerning his non-attendance. He maintained that he did not receive the submissions and the bundle of documents. 
[6]
On 13 May Mrs Grimmett, on behalf of her husband, emailed to say that they had not received the ACC “defence to the notice of appeal” and had only received the notice of change of date. She asked why the Judge could not telephone Mr Grimmett, that he should not be abused, and that he should not be up against two lawyers from ACC. 
[7]
Although the Court was convened in the Coroner's hearing rooms, it is a District Court proceeding conducted in the usual fashion, but with a degree of informality. Parties are required to attend for the hearing of their appeal, or to make an application for adjournment in a reasonable time before the hearing date. It is not a forum where the Judge rings people up or takes an investigatory role. 
[8]
ACC was represented by one lawyer but the Court did not hear any oral submissions. 
[9]
The position now is that the appellant has indicated that he was not given some important documents and that he may have wished to appear. That is not supported by the Registry records. 
[10]
The Court must give both parties an opportunity to be heard. But if an appellant elects not to turn up, there is no automatic right to have the appeal heard on another date. 
[11]
If an appellant in this situation wants to have a rehearing of the appeal, he must apply for a rehearing and give reasons, supported by a sworn affidavit or at least a statutory declaration. A rehearing cannot be ordered on the basis of a partial and unverified explanation given by email. 
[12]
The following directions are now given: 
1.
If the appellant wishes to have the appeal reheard, he will notify the Registrar by letter or email within 7 days. Failing that, the Court will proceed to judgment in the appeal. 
2.
If the appellant does intend to seek a rehearing, he will file a written application within the next 14 days supported by an affidavit or statutory declaration explaining the reasons for failing to appear; otherwise he must request an extension of time and advise the Registry of good and sufficient reasons for needing more time. 
3.
The appellant will send a copy of the application to the respondent at ACC Legal Services. 
4.
After receiving an application for rehearing, the respondent will have a further 14 days to indicate whether or not the application is opposed and to file submissions on the rehearing application if necessary. 
5.
Unless some further enquiry is necessary, the Court will then decide whether to grant a rehearing or to proceed to judgment. 
[3]
In the event, the appellant requested some documents to be sent to him, but after the documents were sent no application was made for a rehearing. 
[4]
There is a jurisdictional problem with the appeal. The appeal followed a review decision in which the Reviewer quite correctly declined jurisdiction because the appeal related to three letters from the Corporation which were not “decisions” as defined in s 6 of the Act. 
[5]
The background set out in the Reviewer's decision concerns correspondence between the appellant and respondent's staff in May and June 2011. Mr Grimmett had cover for multiple injuries caused by an accident in 1988. He was dissatisfied with a social rehabilitation assessments in September 2009 and August 2010 and was unsuccessful in challenging both assessments on review. Mr Grimmett's case file was then transferred from the Rotorua office to Hamilton and he was notified that he was to communicate with a new case manager. He lodged an application for review of the letter advising him that the file was transferred to Hamilton, but after some discussion he withdrew that review application. 
[6]
On 23 May 2011 the appellant's case manager wrote to him to advise that his next social rehabilitation assessment would be deferred until completion of a training for independence programme. The purpose of the programme was to assist with greater independence and perhaps reduce the need for social rehabilitation assistance. 
[7]
In May 2011 a team manager, Ms Christine Hawke, suggested a meeting to discuss Mr Grimmett's concerns. He wrote on 25 May requesting a meeting in the presence of a mediator, and also requested travel costs and expenses for his occupational therapist and his wife to attend the meeting. On the same day Ms Hawke replied by email that she was not prepared to arrange for a mediator for the proposed meeting but that he was welcome to bring a support person. Mr Grimmett made an application for review of that email letter. The subject of the review was refusal to provide a mediator, and refusal to pay the travelling costs for a support person and for his occupational therapist. An offer was then made to meet with Mr Grimmett in Taupo where he lived, but he declined. 
[8]
Mr Grimmett applied for review of three matters that arose out of the correspondence. They were: 
(1)
Ms Hawke's letter of 25 May 2011 declined to pay for a mediator or travel costs for a support person and occupational therapist. 
(2)
The transfer of the appellant's file from Rotorua to Hamilton Branch; and 
(3)
The letter of 23 May 2011 advising the appellant that his request for a social rehabilitation reassessment had been deferred until he completed his Training for Independence programme. 
[9]
The review was dismissed. As the Reviewer correctly stated, a review can only lie against a decision by the Corporation. Section 6(1) contains the following definition of “decision”
“Decision or Corporation's decision includes all or any of the following decisions 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 relating to the level of any entitlements to be provided: 
(f)
a decision relating to the levy payable by a particular levy payer: 
(g)
a decision made under the Code about a claimant's complaint. ”
[10]
The Reviewer decided that the letters or actions of the respondent did not amount to decisions capable of review. 
[11]
The appellant filed a notice of appeal and submitted a volume of correspondence between the appellant and the Corporation. In his notice of appeal he said that the home help attendant care assessment had been unreasonably deferred for completion of the training for independence programme. He mentioned that he had three complaints with the Complaints Investigator. If they are Code complaints, there is no avenue for appeal from the Reviewer's decision - s 149(3) of the Act. But in any case they do not arise in the context of this particular review. In his notice of appeal, Mr Grimmett also challenged the transfer to Hamilton and some points around that issue that might have been the subject of Code complaints. 
[12]
The respondent's written submissions addressed the three matters decided by the Reviewer. The only communication that could be regarded as a decision was the deferral of assessment pending completion of a programme. Ms Becroft stated that the training for independence programme had been completed in August 2011 and the appellant was then referred for a social rehabilitation assessment. That must have occurred at about the time of the review hearing and it may be that the Reviewer should have accepted that a decision had been made about entitlements. However it is arguable whether that it was a matter of delay only, and that it should have been addressed as a Code complaint. 
[13]
As Ms Becroft submitted, the point is now redundant. At the appeal level, the Court deals only with matters that require a judgment. The Court does not act on a question that is moot, that is to say it has been resolved and no further judgment or order is needed. 
[14]
The other two matters were clearly administrative and did not involve decisions affecting entitlements. Mediation is not an entitlement and the place at which a claim file is administered is not an entitlement. They are matters that might concern a Code complaint, but s 149(3) prevents an appeal from a Reviewer's decision. It is noted that both questions were put before the Reviewer as reviews of decisions, not as Code complaints. They were correctly rejected by the Reviewer. 
[15]
For those reasons, the appeal is dismissed. 

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