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Accident Compensation Cases

Rameka v Accident Compensation Corporation (DC, 29/08/14)

Judgment Text

Judge L G Powell
This is an application for leave to appeal a judgment of Judge P R Spiller delivered on 25 July 2013. 
Judgment Appealed Against 
In the appeal before him Judge Spiller was required to consider whether there were any issues arising from the Corporation's decision that reduced the attendant care and home help hours provided to the applicant, Ms Rameka. 
As Judge Spiller noted in his judgment, the Corporation's decision was a discretionary decision with regard to the provision of social rehabilitation under the Accident Compensation Act 2001. As such the decision could only be overturned in the event the Corporation made an error of law or principle, took account of irrelevant considerations, failed to take account of relevant considerations, or that the decisions was otherwise plainly wrong. Having considered the facts before him Judge Spiller concluded that none of these criteria had been met and therefore dismissed the appeal. 
Applicant's Case 
Mr Miller on behalf of Ms Rameka submits that there are two errors of law in respect of which leave to appeal is sought. 
The first concerns Judge Spiller's treatment of Ms Rameka's caregiver, Terry George, as a “household family member” who for the purposes of cl 14(d) of Schedule 1 to the Act“might reasonably be expected to provide attendant care” for Ms Rameka. Mr Miller challenges whether the correct test for household family member was applied by Judge Spiller, noting that household family member is not defined in the Act and, with regard to other legal definitions of de facto relationships noted by Mr Miller, that Mr George would not necessarily have been a household family member. 
The second error alleged is whether the reviewer correctly exercised his discretion under s 145 of the Act, which Mr Miller characterised as being wider than the jurisdiction of the District Court with regard to discretionary decisions of the type in issue in the appeal before Judge Spiller. 
Respondent's Case 
Mr McBride, on behalf of the Corporation, submitted that leave to appeal should not be granted because neither of the grounds raised are “capable of bona fide and serious argument”.1
| X |Footnote: 1
Impact Manufacturing (unreported, High Court Wellington, per Doogue J, AP 266/00, 6 July 2001) 
In relation to the first ground Mr McBride submits that the conclusion drawn by Judge Spiller, that Mr George was a household family member, was “peculiarly a question of fact”, and that the other statutory definitions referred to by Mr Miller were not relevant. 
With regard to the second issue Mr McBride submits that as the ground alleged did not properly arise from the judgment of Judge Spiller, no tenable question of law arises. In Mr McBride's submission because the District Court's jurisdiction is by way of rehearing “anything that might have occurred by way of the review process was quite irrelevant to the Court's decision on the appeal”
Decision — Household Family Member 
On the first question raised by Mr Miller, I am satisfied that this is an arguable question of law which is capable of bona fide and serious argument. 
In particular I note that at no point did Judge Spiller identify the test as to what constituted a household family member, but rather having considered the facts determined that Mr George was indeed a household family member. As noted above the term is not defined in the Act. Moreover, given it was not apparent from the judgment as to whether Mr George was otherwise a relation of Ms Rameka, and that he was clearly not married or in a civil union with Ms Rameka, the appropriate test for what constitutes a “household family member” thereby takes on great importance, with particular regard to the question of what may constitute a de facto relationship for the purposes of the Act. This is of particular moment given the relationship of caregiver and client will inevitably be both personally close and of a physically intimate nature. Mr Miller is also correct that there could be cultural issues that would need to be considered in any appropriate definition. 
As a result I cannot see how a factual finding could be made that Mr George was a household family member without being clear on the test for household family member being applied, and whether it was met in this case. I therefore consider it appropriate for leave to be granted to appeal on this issue. 
Decision — Reviewer Jurisdiction under Section 145 
On the second issue, for the reasons identified by Mr McBride, I am not satisfied that any question of law arises. In my view the legislation is clear that appeals to the District Court are by way of rehearing. This means the District Court was required to consider the substantive issues afresh on the basis of the evidence presented at review and any other evidence subsequently admitted in the course of hearing the appeal. In addition the appeal was by definition made on the basis that there was a valid review decision as otherwise there could be no appeal. It would therefore seem that if there were issues taken with the way in which the reviewer had exercised the jurisdiction with regard to the review the appropriate course would have been to have sought judicial review to that effect. 
The application is allowed in part. Leave to appeal is granted on the following question: 
“Did the District Court make an error of law in determining that Mr George was a ‘household family member’ for the purposes of cl 14(d) of Schedule 1 to the Accident Compensation Act 2001? ”
Costs on the application are reserved pending the final disposal of the appeal. 

Impact Manufacturing (unreported, High Court Wellington, per Doogue J, AP 266/00, 6 July 2001) 

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