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Accident Compensation Cases

Pora v Accident Compensation Corporation (DC, 28/08/15)

Judgment Text

RESERVED JUDGMENT OF JUDGE AA SINCLAIR 
Judge AA Sinclair
Issue 
[1]
The issue for determination in this appeal is whether an email sent by the Accident Compensation Corporation (“the Corporation”) to Mr Pora on 3 December 2013 constituted a decision under s 6 of the Accident Compensation Act 2001 (the 2001 Act) and was capable of review. 
Background 
[2]
Mr Pora has had dealings with the Corporation over a lengthy period. He was granted cover for hearing loss following an injury on 17 July 1988 when he was employed as a traffic operator with New Zealand Railways. Mr Pora received earnings related compensation (“ERC”) from 18 December 1989 to 16 June 2007 when weekly compensation ceased because Mr Pora reached the New Zealand Superannuation qualification age. 
[3]
In September 1989 the Corporation fixed the rate of compensation at a reduced rate because Mr Pora had been offered an alternative position with New Zealand Railways which he declined to accept. Mr Pora applied to review this decision and that application was dismissed on 11 January 1990. Mr Pora subsequently appealed to the Accident Compensation Appeal Authority and on 7 August 1992 Mr BH Blackwood sitting as Appeal Authority issued a decision upholding the Corporation's 1989 decision (“the 1992 Decision”).1
| X |Footnote: 1
Ngavaine Pora v Accident Compensation Corporation Decision No 279/92
 
[4]
On 5 March 2000 Mr Pora requested a reassessment under the Accident Rehabilitation and Compensation Insurance Act 1992 (the 1992 Act). The Corporation issued a decision on 27 September 2000 advising that Mr Pora's ERC had been correctly transitioned pursuant to s 138(1) of the 1992 Act. Mr Pora lodged an application for review which was dismissed in a decision dated 11 June 2001 on the basis that the ERC had been correctly calculated. 
[5]
Mr Pora appealed this decision and in a judgment dated 13 March 2003 Judge Beattie dismissed Mr Pora's appeal.2
| X |Footnote: 2
Ngavaine Pora v Accident Compensation Corporation Decision No 35/2003
In his decision, Judge Beattie found that the Corporation was correct to determine that Mr Pora was not entitled to have the quantum of weekly compensation reassessed or recalculated as it was transitioned through into the 1992 Act. 
[6]
Mr Pora sought leave to appeal to the High Court which was refused. He then sought special leave from the High Court. Asher J dismissed this application in a judgment dated 11 November 2005.3
| X |Footnote: 3
Ngavaine Pora v Accident Compensation Corporation HC Auckland CIV 2005- 485- 001069 11 November 2005 Asher J
He observed that the original decision had not been challenged by Mr Pora but rather a reassessment had been sought: 
“as if the original decision was not carried over. That is a mistake. It was carried over, and it applies unless and until it is set aside. ”
[7]
Mr Pora then applied for leave to appeal to the High Court from the 1992 Decision. This application was dismissed by the Appeal Authority in a decision issued on 31 March 2009.4
| X |Footnote: 4
Ngavaine Pora v Accident Compensation Corporation Decision No 1/2009
In that decision Mr PJ Cartwright sitting as the Appeal Authority stated at para 72: 
“There must be finality to any litigation, the Appeal Authority decision by Mr Blackwood having been issued in August 1992. No further action in respect to that proceeding was taken by the appellant despite the fact that he had counsel acting for him for the appeal, solicitors assisting him with his ACC claims for a period of two more years, as well as representations from the CBU from 1998. ”
[8]
Some years later on 19 September 2013 Mr Darke as advocate for Mr Pora sent an email to the Corporation in the following terms: 
“Hi Lynley 
I think you had the latest involvement in this case (a few years back now). 
Mr Pora was receiving weekly compensation at a reduced rate when the 1992 Act came into force. We thought that the rate should go back to the full amount under the 1992 Act. The High Court disagreed. 
However the transitional provisions under the 2001 Act are cast differently. I am requesting that ACC consider whether under the transitional provisions, the rate should be increased to the 80% rate and issue a decision accordingly. 
Cheers Mike ”
[9]
The matter was referred for technical advice and a memorandum recording the advice was prepared. In that memorandum, the operations analyst set out the history of Mr Pora's claim and subsequent litigation. She stated that the issue raised by Mr Darke had been addressed on many occasions and the Appeal Authority in 2009 had said that there must be finality to any litigation. She noted that Mr Darke “had not provided anything new to consider in the context of this matter.” With regard to the transition provisions she referred to s 365(2)(c) of the 2001 Act and observed that the Corporation had applied the provisions appropriately. 
[10]
The Corporation wrote to Mr Darke on 3 December 2013 in the following terms: 
“Dear Mike 
Further to your query on weekly compensation for Mr Pora and transition of that rate under the 2001 Act. 
We have sought technical advise [sic] on this issue and I have attached that for your reference. 
Unfortunately we are unable to progress this query/issue any further for you. 
Thank you. ”
Mr Darke subsequently filed an application for review on 7 December 2013. The reviewer declined jurisdiction to hear Mr Pora's application on the grounds that the email of 3 December 2013 was not a reviewable decision as defined in s 6 of the 2001 Act. Mr Pora seeks to have this decision quashed and the Corporation directed to arrange a review hearing on the substantive matter. 
Case for Mr Pora 
[11]
Mr Darke contends that the various appeal decisions were made under the 1982 and the 1992 Acts. The 1998 Act contained similar transitional provisions in relation to the continuation of weekly compensation being paid as under the 1992 Act. These transitional provisions provided for what happened to those with cover and entitlements under the earlier Acts. He submits that it follows that what happens to Mr Pora's 1982 cover and entitlements must now be determined by the transitional provisions of the 2001 Act. 
[12]
Mr Darke says that unfortunately the Corporation and the reviewer both “missed the point”. He contends that the present review and appeal is not challenging the Appeal Authority's 1992 Decision or the High Court decision of Asher J. Mr Darke states that the 1992 Decision was in relation to the 1982 Act which determined the rate of ERC assessed under the 1982 Act formula while the High Court determination was in respect of whether the rate of compensation could be reassessed given that the 1982 Act had been repealed. He submits that the current review/appeal is in respect of a determination by the Corporation that Mr Pora was estopped from arguing that the transitional provisions of the 2001 Act allowed a reassessment of the rate of ERC. 
Discussion and Analysis 
[13]
The term “decision” is defined in s 6(1) of the 2001 Act as follows: 
“6
Interpretation 
(1)
In this Act, unless the context otherwise requires,- 
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 about 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 ’”
The issue for determination in this proceeding is whether the email of 3 December 2013 was a reviewable decision on entitlements under s 6 (1) (c), (d) or (e) of this definition. 
[14]
Mr Darke submits that the Corporation was requested to consider the new transitional provisions and the application of those provisions to Mr Pora's case. In his submissions Mr Darke says that he is relying on the application of s 365(3) of the 2001 Act which provides that “on and after 1 April 2002 the compensation under ss (2) continues to be payable at the rate payable as if it were calculated under this Act”. It appears to be Mr Darke's contention that this provision leaves open a reassessment of Mr Pora's claim. 
[15]
The reality is that Mr Pora's entitlement was conclusively determined in the 1992 Decision. In the absence of a successful appeal it continues to be his due entitlement under the 1982, 1992, 1998 and 2001 Acts. 
[16]
I have set out the history of Mr Pora's claim at some length. The 1992 Decision upheld the Corporation's decision fixing the rate of compensation to be paid to Mr Pora at a reduced rate. Mr Pora did not take any steps to appeal that decision at the time. In 2003 Judge Beattie held that Mr Pora was bound by the 1992 Decision and that the amount he then received was his due entitlement under the 1982 Act, the 1992 Act “and its successors.” This clearly includes the 2001 Act. Judge Beattie specifically stated: 
“[9]
… The appellant is bound by the decision of the Authority and it is not open to him to seek a recalculation on some alternative basis as the issue of his entitlement has been finally determined …  
 
[12]
If the appellant could establish that there had been some error of fact in the manner in which the respondent had made its calculation then he would be entitled to seek to have the respondent recalculate the entitlement based on the true facts …  
[13]
Accordingly then the respondent was correct to determine that the appellant was not entitled to have the quantum of weekly compensation, as it was transitioned through into the 1992 Act by s 138(1), reassessed or recalculated, it having been authoritatively determined that the amounts he presently receives is his due entitlement under the 1982 Act, the 1992 Act and its successors. ”
(emphasis added) 
[17]
Following Asher J's decision in November 2005 Mr Pora sought leave to appeal the 1992 Decision but the Appeal Authority declined leave stating very plainly that the litigation had to be brought to an end. 
[18]
I agree with the reviewer that the email of 3 December 2013 (including the advice memorandum) is not a reviewable decision under s 6(1) of the 2001 Act. The Corporation in the advice memorandum carefully worked through the history of Mr Pora's claim and various decisions and made it clear that Mr Pora's claim to entitlements had already been fully litigated with the effect that Mr Pora is estopped from pursuing the matter further.5
| X |Footnote: 5
Talyancich v Index Developments Ltd [1992] 3 NZLR 28 (CA)Has Litigation History which is not known to be negative[Blue] 
Having considered the email and the background to this claim I am satisfied that the email does not constitute a decision on entitlements under s 6 (1) (c), (d) or (e) of the definition. Accordingly, it is not a decision which is able to be reviewed. 
Decision 
[19]
For the reasons set out above I am satisfied that the email of 3 December 2013 is not a decision under s 6(1) of the 2001 Act and the appeal is dismissed. 


Ngavaine Pora v Accident Compensation Corporation Decision No 279/92
Ngavaine Pora v Accident Compensation Corporation Decision No 35/2003
Ngavaine Pora v Accident Compensation Corporation HC Auckland CIV 2005- 485- 001069 11 November 2005 Asher J
Ngavaine Pora v Accident Compensation Corporation Decision No 1/2009
Talyancich v Index Developments Ltd [1992] 3 NZLR 28 (CA)Has Litigation History which is not known to be negative[Blue] 

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