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Accident Compensation Cases

Smith v Accident Compensation Corporation (DC, 10/08/16)

Judgment Text

Judge G M Harrison
The appellant (Mr Smith) applies for leave to appeal the decision of Judge Maclean of 29 January 2016 to the High Court, leave only being granted if the contended point of law is “capable of bona fide and serious argument” to qualify for the grant of leave — Impact Manufacturing (Doogue J High Court Wellington AP 266/00 6 July 2001)
By minute of 1 March 2016 Judge Henare directed that submissions in support of and in opposition to the application be filed and that the application would then be determined on the papers. 
The application for review and the appeal to Judge Maclean were both given short shrift with Mr Smith being unsuccessful on both hearings. 
The essential background facts, which the Judge described as not being in dispute, are that Mr Smith sustained multiple injuries in a motor vehicle accident in May 1998. He received weekly compensation until 2000 when an investigation revealed that he had been working whilst in receipt of receiving weekly compensation and had failed to advise the Corporation. Weekly compensation therefore ceased in October 2000. 
In November 2002 the Corporation advised Mr Smith that he had an outstanding debt for $51,318.78 for which he had been prosecuted in the criminal jurisdiction of the District Court. The letter stated: 
“We write to advise you that ACC is to withhold the independence allowance due to be paid to you in early December this year. ACC will continue to do so until the debt is repaid or a court rules otherwise. If you can provide information to me that this has a significant adverse impact on your financial position then we may alter this decision. ”
There was no response from Mr Smith to that letter. On 23 January 2003 the Waitakere District Court, in its civil jurisdiction, entered judgment by default against him for $52,077.81 which included costs and disbursements. 
The Corporation withheld entitlement until, in August 2007, it became apparent that the appellant had closed his bank account and left his last known address. He had apparently gone to Ireland. 
In 2014, upon his return to New Zealand, Mr Smith made inquiries about his entitlements. An email of 3 July 2014 was sent from the Corporation to Mr Smith's advocate stating: 
“The debt remaining has been updated. The outstanding debt was $42,944.96. As George was owed an IA arrears (for the period 27 August 2007? 17 August 2014) of $14,863.86 the balance of the debt remaining is now $28,081.28. I have requested the ongoing independence allowance payments to be raised against the debt. ”
An application for review challenging the email of 3 July 2014 was brought. Allocation of a Reviewer was not made in accordance with s 137(2) of the Act until 4 December 2014, by which time the three months allowed by s 146(1)(a) to do so had expired. 
The first point raised on appeal was that because of non-compliance with s 146(1)(a) a deemed decision arose in that the Corporation should have accepted that it was bound as a consequence to repay the arrears of independence allowance. 
That could only occur if the email of 3 July 2014 was a “decision” made by the Corporation to withhold the arrears of the independence allowance. 
The Reviewer determined, on the basis of prior authority, that if what was challenged on review was not a decision as defined by the Act then there could be no deemed decision. 
The only matter challenged on review and on appeal was the email of 3 July 2014. If it does not amount to a decision then the entire process of review and appeal has been futile. 
The Judge said: 
‘Decision’ is defined in s 6 and covers a range of determinations including whether or not there is cover, classification of an accident and the like and in subparas (c), (d) and (e) decisions about provision of entitlements, what entitlements will be provided and the level of entitlement. 
It is clear that in this case the July 2014 email was none of those things. It was simply an arithmetical calculation starting with the unchallengeable proposition of a total debt of over $50,000 and then netting off accruing entitlements that, whilst they had initially been written off for sound practical reasons on an internal basis, were then in effect reinstated to bring the situation back up to date. It is clearly not a decision in terms of s 6. ”
The Judge then determined that there could not be a deemed decision and dismissed the appeal. 
Counsel for Mr Smith in his submissions at 1.10 said: 
“This cursory glance of His Honour over what was a measured decision with an extensive background of legislative considerations lends itself to a number of bona fide questions of law capable of serious argument at appeal to the High Court. Such questions include the following …  ”
And eight purported questions of law are then postulated. 
There is no postulated question of law within those eight, as to whether or not the email of 3 July 2014 amounted to a decision. 
I can discern no basis upon which that email amounts to a decision which may then be subject to review and appeal. It does no more than advise what is still owed by Mr Smith against the original debt after independence allowance payments had been offset against it. The decision to do that was made in November 2002 and no action by way of review of that decision was undertaken. 
In my view the email of 3 July amounts to no more than an administrative act consequent upon the decision of November 2002. This can be compared to applications for judicial review pursuant to the Judicature Amendment Act 1972 where mere administrative acts are not reviewable because, essentially, they do not amount to decisions affecting rights. 
By the same token in this matter the email of 3 July simply advises the calculations made in consequence of the decision of November 2002 and is therefore not a decision which can be the subject of review or appeal. 
None of the suggested questions of law can be referred to the High Court, assuming they otherwise qualify for that, because they do not arise out of a decision that could validly be the subject of a review and subsequent appeal. 
The application is dismissed accordingly. 
The question of costs is reserved. 

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