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Accident Compensation Cases

Meredith v Accident Compensation Corporation (DC, 21/03/14)

Judgment Text

Judge L G Powell
This is an application for leave to appeal a judgment of Judge Barber dated 17 January 2012 in which His Honour dismissed the applicant's appeal. Five questions of law were identified in the applicant's submissions in support of this application. Since then however, somewhat unusually, the parties have reached agreement on a single question of law, that Judge Barber applied the incorrect statutory test to the appeal, and, by way of joint memorandum dated 12 March 2014, have requested that this Court grant the application for leave to appeal on this single ground. If leave is granted the parties intend to jointly request the High Court to remit the appeal back to the District Court for a rehearing. 
Notwithstanding the consent nature of the application on this single question of law, I must nevertheless satisfy myself that an appropriate question of law exists before granting leave to appeal. 
Judgment Appealed Against 
The issue before Judge Barber, identified by His Honour at the outset of the judgment, was whether by decision dated 14 October 2009 the respondent correctly revoked the applicant's cover for an injury to her finger. 
The judgment noted that the applicant claimed to have injured her finger on 29 August 2009, for which she was granted cover on 1 September 2009. Following further investigations the respondent revoked cover on 14 October 2009. After referring to the evidence before him Judge Barber identified the relevant legal test as being: 
“The issue before me is whether ACC's 14 October 2009 decision stopping entitlements was correct. ACC could only do so if it is ‘not satisfied’ on the evidence on file that the applicant had further rights to entitlement on this claim. (Ellwood v ACC [2007] NZAR 205 HCHas Litigation History which is not known to be negative[Blue] ). 
The relevant section of the Act is s 117 which provides: 
Corporation may suspend, cancel, or decline entitlements 
The Corporation may suspend or cancel an entitlement if it is not satisfied, on the basis of the information in its possession, that a claimant is entitled to continue to receive the entitlement …  ’”
Judge Barber then cited extracts from the Ellwood v ACC decision he had referred to, which is the leading authority for the application of s 117, before analysing the evidence before him and concluding: 
“I agree that this is a balance of probabilities case and the onus is on ACC to show that it was correct in being satisfied on 14 October 2009 that the applicant's entitlements should not continue. I find that ACC was entitled to be so not satisfied, the one thing which is clear is that the applicant does not know what happened to cause the infection to her finger. Accordingly, the medical evidence needs much consideration and that shows that the most likely cause of the finger injury was a minor break in the skin which allowed the entry of infection and did not occur as a result of any defined event. I agree with Mr Tui, that Dr Everts' said specialist opinion offers the most helpful and cogent evidence in respect to the likely cause of the applicant's condition. ”
His Honour then dismissed the appeal. 
The Position of the Parties 
The joint position of the parties can be simply put; that while Judge Barber applied s 117 to the fact situation before him, this was not a case where s 117 was relevant. The applicant's entitlements were not “surrendered, cancelled or declined” under s 117, rather the applicant's cover was revoked pursuant to s 65(1) of the Act which provides: 
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. ”
As the submissions filed on behalf of the applicant note, the test for what constitutes an error enabling cover to be revoked pursuant to s 65 is quite different from that under s 117 identified by Judge Barber allowing for suspension of entitlements, with the leading authority being the High Court decision in Bartels v ACC1
| X |Footnote: 1
CIV 2005-486-002072, 4 August 2006 
rather than Ellwood
It is on this single issue that the parties now request leave to appeal. 
Having considered the joint memorandum filed by the parties, the submissions in support of the application for leave to appeal the review decision, the written submissions presented at the appeal and the judgment itself I conclude that it is appropriate that leave to appeal be granted, on the basis that the incorrect legal test was indeed applied in addressing the appeal. In particular the review decision appealed from and the submissions for the applicant make it clear that the issue in the appeal was indeed whether the respondent's revocation of cover under s 65 was correct, and this, as noted, was acknowledged by Judge Barber in the opening paragraph of his judgment. Despite this, the test ultimately applied in the judgment was that under s 117. Given completely different considerations are required as between s 65 and s 117, I am satisfied that this constitutes an arguable error of law for which leave should be granted for an appeal to the High Court. 
I note for completeness, allowing the application for leave to appeal is the only approach available in order to obtain a rehearing of this appeal, as this Court does not have jurisdiction itself to order the rehearing of the substantive appeal which is clearly appropriate in the circumstances2
| X |Footnote: 2
Kahn v ACC CIV 2007-485-001632, High Court Auckland, 25 February 2008, per Cooper J 
. As a result the parties proposed approach to this matter in the High Court appears appropriate. 
The application is allowed. Leave to appeal is granted on the following question: 
“Did the District Court make an error of law in its application of section 117 on this appeal? ”
In accordance with the joint memorandum I agree that it is appropriate that costs on this application are reserved pending final disposal of the appeal. 

CIV 2005-486-002072, 4 August 2006 
Kahn v ACC CIV 2007-485-001632, High Court Auckland, 25 February 2008, per Cooper J 

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