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Accident Compensation Cases

Morris v Accident Compensation Corporation (DC, 30/09/16)

Judgment Text

RESERVED JUDGMENT OF JUDGE DENESE HENARE 
Judge Denese Henare
[1]
The appellant, Ms Morris is represented by her uncle, Mr Varney. Ms Morris has cover for a treatment injury. 
[2]
This appeal arises from a review decision of 6 October 2015 which dismissed two applications for review of 19 February 2015 and 1 April 2015 because they did not identify subject matter that could form the basis of a valid review application. The decision also stated Ms Morris is not entitled to a deemed decision or decisions, and the reviewer, Mr Lock declined to recuse himself as the appointed reviewer. 
[3]
Mr Varney submitted the question regarding a deemed decision is no longer relevant: 
“The appellant is not asking for fulfilment of any deemed decision. ACC's compliance with s 136 and 137 of the Accident Compensation Act 2001 (the Act) and Fairways compliance with section 138 and section 140 of the Act is much more important. ”
[4]
Part of the context for this appeal, is the decision of Judge Smith in Morris1 which concerned a claim to lump sum entitlement, and the Corporation's subsequent delays in providing the recording of the review hearing to Ms Morris. The appeal also raised issues regarding conduct of the review. His Honour stated that: 
“[2]
Many of the grounds raised in the Notice of Appeal concern the conduct of the review. Submissions filed for Ms Morris also raised issues concerning failure of the reviewer to maintain information a failure of the Corporation to provide information as required by section 143 and 154 of the Act respectively. ”
[5]
His Honour went on to state: 
“[10]
Mr Varney raised issues relating to the conduct of the review hearing. In this Court, the appeal re-hearing is curative of any procedural defects at lower levels. Given that the decision that is the subject of the appeal is quashed for other reasons, it is of little moment to investigate the particular conduct of that hearing. 
 
[15]
Mr Varney suggests that there has been a practice of destroying the record. Given the absence of any firm evidence on this point, I can make no comment beyond saying that, if this were the case, it clearly would not comply with either Section 143 or 154 of the Act. ”
[6]
Following Judge Smith's decision, the evidence shows correspondence from Fairway, the Corporation and the Minister for ACC apologising to Ms Morris and Mr Varney for the errors and delays that occurred in providing the record. 
[7]
In this case, Mr Varney submitted the Corporation and Fairway “are now second offenders in the interpretation of sections of the Act to suit themselves”
Hearing 
[8]
At hearing Mr Varney submitted there were documents missing from the agreed bundle which should be provided to the Court. The Court subsequently received a copy of the review transcript. 
[9]
Mr Varney submitted that much of the information he requested under s 154 of the Accident Compensation Act 2001 (the Act) had not been provided and this affected his ability to provide evidence and to complete submissions. The Court gave Mr Varney the opportunity to provide such documents as he wished and to make further submissions. 
[10]
Following the hearing: 
Mr Varney provided written supplementary submissions replying to the Corporation' submissions dated 5 April 2016; 
Mr Varney also made further submissions on 12 April 2016, including addressing s 138 of the Act; 
Mr Tuiqereqere filed submissions dated 18 April 2016 in reply; 
The Court issued a minute on 26 July 2016 requesting certain information from Mr Varney and giving Mr Varney and Mr Tuiqereqere further opportunity to file submissions on the principles discussed by the reviewer on the issue of bias; 
On 28 July 2016 Mr Varney provided a letter from the Corporation dated 18 September 2015 (a document omitted from the bundle). Further submissions were received from Mr Tuiqereqere on 5 August 2016 and Mr Varney on 18 August 2016. 
Background 
[11]
In this case it is important to set out the background leading to the review applications since the broader issue is whether there are reviewable decisions. 
[12]
On 11 November 2014, Mr Varney requested the Corporation to provide a copy of all information held about Ms Morris. 
[13]
On 8 December 2014, a claims officer in the Client Information Team, responded: 
“Thank you for your request of 11/11/14 asking for a copy of all the information we hold on Ms Jennifer Morris. 
We're please to provide this information under the Privacy Act 1993/Health Information Privacy Code 1994. Except for that mentioned below, I have not withheld any information making this a full and complete copy file. 
However, we've had to block out some information that we can't disclose because under the Privacy Act: 
It would cause unwarranted disclosure of the affairs of another person (or a deceased person). This decision complies with section 29(1)(a) of the Act. 
Disclosure would breach legal professional privilege. This decision complies with s 29(1)(f) of the Act. ”
[14]
The letter went on to state a complaint may be lodged with the Privacy Commissioner. 
[15]
On 13 February 2015, an advisor in the Privacy Unit wrote to Mr Varney: 
“Thank you for your request for a full IT sweep of information held by ACC concerning yourself or your niece for whom you are an advocate under the Privacy Act 1993 (‘the Act’). 
Please find this information enclosed. We have removed some information under section 29(l)(f) of the Act as it is legally privileged. 
We have also removed some information under section 29(1)(a) of the Act as its disclosure would involve the unwarranted disclosure of the affairs of another individual. 
If you are still not happy, you can make a complaint to the office of the Privacy Commissioner …  ”
[16]
On 19 February 2015, Mr Varney emailed the adviser in the Privacy Unit about the delivery of unsecured information sent to his residential address, and in consequence, a potential breach of privacy: 
“Thank you for your letter dated 13 February 2015 and the personal information file which was delivered by persons unknown, today, 19 February 2015, and left quite unsecured in my ‘semi-rural’ mailbox. 
Also for the record, the package — pictures enclosed — once again did not request a signature of the receiver, or warnings of the nature of the parcel, or for that matter any instructions as to the importance of a secure delivery. It was simply left in an open mailbox, for all to peruse, after going through unknown hands and therefore unsecure hands. I'm sure you will agree that this is no way to secure peoples personal and private information, furthermore, I'm led to believe by ACC that it does not comply with the contract that ACC has with New Zealand Couriers. 
Whilst on this occasion the package appeared to be intact and undisturbed I'm sure you will agree that the potential for yet another privacy leak is quite evident. 
May I respectfully suggest that prior to sending any further information you discuss the matter with Kyla or Laura of the ACC client information team who now have a very good understanding of this problem. 
Rather than make a complaint to the Privacy Commissioner, I write to formally complain as to the delivery and potential breach of privacy. I also request a review of your decision to remove some information on whatever basis together with a lack of other information known to exist. Please advise details for the investigation and review. ”
[Emphasis added]
[17]
On 20 February 2015 Mr Varney emailed the Corporation, the Prime Minister and two other Ministers and stated: 
“ACC have as usual made an autonomous decision to remove unknown information, I am left with no idea whether or not this is correct. I feel that at the very least ACC should identify the material in some way so that I can save the court the time of establishing whether or not ACC has the right to do this. Having established last year that ACC do not even understand their own 2001 Act-breaching several sections for over thirteen years, not to mention the claimants code of rights on numerous occasions - I do not trust their ability to decide what to leave out. I therefore formally requested a review of that decision. 
What ACC chooses to do about it, is up to ACC. ”
[18]
Ms Poihipi in the Complaints Unit responded on 24 February 2015: 
“Thank you for taking the time to respond to me in email on 20/2/15. 
I have contacted the privacy team for clarification in order to provide a clear response. 
I am aware from your email to Maya dated 19/02/15 that you wished to complain about delivery of a couriered file and a potential breach of privacy. I was advised by Maya that prior to the packaged file been sent out she confirmed with you the address you wanted this couriered to. She further clarified that the package did not contain sensitive information and was double-bagged. It is reasonable to expect that the information that was sent to you would be securely delivered to this address and you confirmed yourself that the package was not tampered with. 
You have also requested a review of ACC's decision to remove some information in response to Maya's letter dated 13/02/15. To clarify this decision does not carry review rights as it is a decision made under sections 29(1)(f) and 29(s)(a) of the Privacy Act 1993 not the Accident Compensation Act 2001. 
I advised you previously that you have the option of a formal investigation under the Code of Claimants' Rights however this was in the absence of the clarification provided to me by the privacy team. While you do have the right to complain under the Code you may not get the outcome you are seeking as a remedy. 
The appropriate forum to address your continued privacy concerns as outlined above is to make a complaint through the Privacy Commissioner who is contactable on phone 0800 803 909 or email enquiries@privacy.org.nz. ”
[emphasis added]
[19]
Mr Varney responded on 1 April 2015: 
“My apologies for the delay in replying. I have been rather busy with even more important breaches of the 2001 AC Act by ACC. I find your response to this matter quite disturbing. Clearly you do not understand the 2001 AC Act. ACC policy and procedures are not law, just because you've always done it this way does not make it right. 
I therefore request a second formal review, this time of your decision to refuse a formal investigation under the Claimants' Code of Rights. ”
[emphasis added]
[20]
By letter of 9 April 2015 to the Corporation and Ministers, Mr Varney requested allocation of a reviewer and pointed out the need for compliance with ss 136 and 137 of the Act. 
[21]
On 21 July 2015 the Corporation wrote to Mr Varney advising that as “no decision capable of review had been identified” in the review applications, the matter would proceed to a preliminary review hearing. 
[22]
On the same date, the Corporation sent instructions to Fairway that the matter proceed to a preliminary hearing on jurisdiction and a reviewer should be assigned accordingly. On the issue of a preliminary hearing, the reviewer agreed with Mr Varney that: 
“I recognise and accept Mr Varney's argument that the Act only refers to hearings and not preliminary hearings, and that it is not for ACC, or for any party for that matter, to dictate to a reviewer how he or she should conduct a review hearing. ”
[23]
After referral to Fairway, the Complaints Investigator for the Corporation wrote to Mr Varney on 18 September 2015 regarding delivery processes when couriering personal information. The letter advised the matter of NZ Couriers not delivering parcels to an address and obtaining signature was being taken up with their management team. The letter stated it was not a decision under the Code and a further complaint could be made to the Privacy Commissioner or the Ombudsman. 
[24]
The applications went to review hearing on 2 October 2015 and the reviewer's decision issued on 6 October 2015. 
[25]
Whilst the Corporation's written submissions indicate the reviewer declined jurisdiction that is not so. The reviewer had jurisdiction but dismissed the review because the applications of 19 February 2015 and 1 April 2015 were not valid review applications. The reviewer also found there could be no deemed decision or decisions, and he also declined to recuse himself as the appointed reviewer. 
[26]
Mr Varney indicated the deemed decision point is not pursued. 
Issues 
[27]
The two major issues in the appeal are: 
[a]
Whether the applications of 19 February 2015 and 1 April 2015 identify any decision or decisions of the Corporation that could be the subject of review; and 
[b]
Whether the reviewer, Mr Lock was precluded from determining the review. 
[28]
I turn to consider the first issue. 
Issue One: Whether the applications of 19 February 2015 and 1 April 2015 identify any decision or decisions of the Corporation that could be the subject of review 
The Case for the Appellant 
[29]
Mr Varney submitted that his applications of: 
[i]
19 February 2015 represent a request for review of the Corporation's decision not to supply certain information; and 
[ii]
1 April 2015 represent a request for review of the Corporation's decision declining a formal investigation under the Code of Claimants' Rights. 
[30]
In consequence, Mr Varney submitted the obligations of the Corporation are triggered under s 136 to provide an acknowledgement of the applications, and under s 137 to allocate a reviewer. Specifically: 
“3.12
Ms Poihipi's views have been shown to be incorrect, but this is irrelevant, sections 136 and 137 are crystal clear as to ACC's obligations upon receipt of the request for a review. They fail to comply with either one. 
3.13
Ms Poihipi made it quite clear that she made a decision denying the applicant an investigation and a review due to her decision that it was not a valid decision capable of review. The applicant is entitled to request a review of those decisions at that point. 
3.14
This matter is about ACC's and Fairway's failure to comply with the Act as it is written, not about deemed decisions or even the breaches of the Code of Claimants Rights made by ACC. ”
Discussion and Decision 
[31]
At the outset, it is apparent from the evidence there are responses from multiple units in the Corporation, being the Client Information Team, Privacy Unit and Complaints Unit, and no single co-ordinated approach. There is no doubt this is a case where a meeting of the parties would have been constructive to resolve the issues between them. 
[32]
Mr Varney seeks the adherence of the Corporation and Fairway to the provisions in the Act. The District Court's jurisdiction on appeal is by way of rehearing.2 The Court considers the review findings based on evidence at review and admitted in the appeal. This means any procedural defect at review can be cured on appeal. 
[33]
The starting point is s 134 of the Act which states that a claimant may apply to the Corporation for review of any of its decisions. Section 6 defines decision as including any decision concerning cover and/or entitlements or a decision made under the Code about a complaint. Section 6 relevantly states: 
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 ”
[34]
Section 135 provides an application for review must comply with s 135(2). Whenever practicable, the application must be in the form made available by the Corporation. The application must also identify the decision or decisions in respect of which it is made, and state the grounds on which it is made. 
[35]
I turn to consider the applications from Mr Varney and the Corporation's responses. 
Application of 19 February 2015 
[36]
The application of 19 February 2015 is to be considered on its own terms and in context with other correspondence. 
[37]
Mr Varney's email of 19 February 2015 is in response to the Corporation's letter of 13 February 2015 that information was being withheld under the Privacy Act. The subject matter of the email states “unsecure personal information” and communicates that: 
A package of information was left unsecured in his letter box that day; 
A complaint is made about the circumstances of delivery; 
The Privacy Unit should discuss the privacy implications of the delivery of information with the Client Information Team; 
Investigation and review of the decision to remove/withhold personal information “on whatever basis;” 
Investigation and review of other information known to exist. 
[38]
It is apparent that Mr Varney raises three separate topics in the letter. They relate to secure delivery of a package of information to him, withholding information and access to other information known to exist. 
[39]
I find the complaint about unsecure delivery is not a complaint made under the Code. First, the letter does not record complaint under the Code. Secondly, Mr Varney requests the Corporation investigate matters under the contract with NZ Couriers to achieve secure delivery of information and involve the Client Information Team “who now have a very good understanding of this problem.” Thirdly, Mr Varney acknowledges no security breach because the package appeared intact, but the incident raised “the potential for a privacy leak.” 
[40]
The decision to withhold information in the Corporation's letter of 13 February 2015 is made pursuant to specific provisions of the Privacy Act 1993. Under s 44 of the Privacy Act it is mandatory that an agency (in this case, the Corporation) after giving an individual the reason for refusal then notify the individual of the right to lodge complaint with the Privacy Commissioner. The Corporation's letter of 13 February 2015 met these requirements. 
[41]
In my opinion, the advice to make complaint to the Privacy Commissioner is pertinent given Mr Varney's views expressed in his email of 20 February 2015 that “I am left with no idea whether or not this [withholding information] is correct” and they “decide what they leave out”. For this reason, a system of complaint, review and appeal of decisions is provided under the Privacy Act. 
[42]
The third topic of access to other information known to exist is stated too broadly and does not provide particulars. 
[43]
I observe there are two conflicting statements in the email of 20 February 2015. First, the statement that “what ACC chooses to do about it, is up to ACC” suggests the Corporation can decide itself how to deal with the concerns. Secondly, the statement that the email of 19 February 2015 is a formal request for review suggests it is not up to the Corporation to decide what to do. 
[44]
I conclude the application of 19 February 2015 does not identify a decision or decisions that could be the subject of review. 
[45]
I turn to consider the application of 1 April 2015. 
Application of 1 April 2015 
[46]
Mr Varney submitted his email of 1 April 2015 is a request for review of the Corporation's decision of 24 February 2015 to refuse an investigation under the Claimants' Code of Rights 
[47]
The letter of 24 February 2015 from the Corporation (Customer Support Services-ACC Complaints) advised: 
Acknowledgement of Mr Varney's email of 20 February 2015; 
Reference to the email of 19 February 2015(sent to the Privacy Unit) about the circumstances of delivery of the information package; 
Request for review of decision that withholding information did not carry review rights because decision made under the Privacy Act; 
The option of investigation under the Code is still open, but it may not deliver “the outcome you are seeking;” 
The appropriate forum concerning complaint about privacy issues is to the Privacy Commissioner. 
[48]
In the email of 1 April 2015 Mr Varney stated: 
“I therefore request a second formal review, this time of your decision to refuse a formal investigation under the Claimants' Code of Rights. ”
[49]
I do not find the letter of 24 February 2015 is a refusal to investigate. A careful reading of the letter indicates there is the right to make complaint under the Code. There is no evidence before me of a formal complaint made under the Code. 
[50]
I conclude the email application of 1 April 2015 does not identify a decision or decisions that could be the subject of review. 
[51]
Mr Varney submitted it does not matter whether the applications are capable of review or not, ss 136 and 137 of the Act are triggered. In Mr Varney's submission: 
“Both decisions were capable of review, but even if they were not, it doesn't matter, the applications for review should still have been allocated a reviewer as soon as practicable. S 137 is quite clear on that. ”
[52]
The Corporation's written submissions agree that ss 136 and 137 are mandatory provisions and the Corporation must acknowledge receipt of a review application under s 136, and under s 137 the Corporation must allocate a reviewer as soon as is practicable. I consider the effect of s 137(2) is the Corporation cannot preclude a claimant's right to review. A reviewer will determine the application at review. 
[53]
Mr Varney's letter of 9 April 2015 stated he wished to have the issue about withholding information together with the Corporation's obligations regarding secure delivery of information referred to a review. There is an aspect of confusion in the letter that suggests the executive office should receive the complaint, particularly as Ministers are copied in the email. Nonetheless, Mr Varney refers specifically in the letter to s 137 of the Act and the need to allocate a reviewer to a review “even if it considers that there is no right of review in the circumstances.” 
[54]
In the event, the Corporation acknowledged receipt of the applications for review in July 2015. Mr Varney submitted the Corporation was dilatory in accepting the applications for review. Mr Tuiqereqere submitted though it took five months to allocate a reviewer for review, this was done as soon as practicable within s 137 of the Act. There is no evidence before me of the Corporation's actions during the five month period. As a result, I find whether referral was done as soon as practicable is not determinative. A month later on 20 August 2015, Fairway set the applications down for hearing. 
[55]
For the sake of completeness, it appears Mr Varney subsequently made a formal complaint under the Code in or around August 2015, after the applications of 19 February 2015 and 1 April 2015 were referred for review in July 2015. There is a letter of 18 September 2015 from Mr Gratkowski, Complaints Investigator from the Corporation who records a complaint from Mr Varney. The letter refers to the Corporation's acknowledgement on 17 August 2015 of “your complaint”
[56]
I observe the letter continues to state the Corporation will take up matters with NZ Couriers concerning secure delivery of information. The letter stated it is not a decision under the Code. Whether that is so or not is a question for review. The District Court has no jurisdiction under s 149(3) to consider appeals in relation to Code complaints. 
Conclusion 
[57]
The Corporation's submissions agree that ss 136 and 137 of the Act are mandatory provisions. In the event, the applications of 19 February 2015 and 1 April 2015 were referred for review. 
[58]
I conclude the Reviewer was correct to dismiss the applications of 19 February 2015 and 1 April 2015 for review because they did not identify any decision or decisions of the Corporation that could be subject of a review. 
Issue Two: Whether Mr Lock was precluded from determining the review 
The Case for the Appellant 
[59]
Mr Varney submitted: 
“4.10
The reviewer failed to comply with section 138(2), by not notifying ACC of his previous involvement in the claim. Both as an observer in a previous review and a discordant witness on record to the subsequent Fairway investigation. 
4.11
The reviewer also failed to comply with section 140(a) which once again states the reviewer “must (comply with section 138). 
4.13
ACC failed to comply with section 139(4) when it allocated the review to Mr Lock, in the full knowledge of his previous involvement in the claim, via the complaint, investigation and subsequent appeal of Ms Clark's earlier review decision. ”
[60]
In the decision of 6 October 2015 Mr Lock declined to recuse himself as the appointed reviewer. 
[61]
At the review hearing, the transcript records Mr Varney's objection late in the hearing: 
Mr Varney: I hereby object to you [speaking to Mr Lock] conducting this review on the basis of your previous involvement with this case, Jennifer Morris, myself and your response, your clearly wrong response to Fairway executives. ”
[62]
Mr Lock considered the grounds on which Mr Varney claimed apparent bias, including the Supreme Court's decision in Saxmere,3 his attendance as an observer at an unrelated review hearing and his view about the conduct of the review. 
[63]
Mr Lock stated: 
“The first ground raises the question of reasonableness. Does attendance at a review hearing in 2012, as an observer with no judicial or review function, justify an allegation of apparent bias? 
It is difficult to comprehend how an objective observer could reasonably conclude that a person who observes a review hearing in 2012 would automatically become bias against any of the parties. 
Even if, hypothetically speaking, I had been the presiding reviewer in the 2012 review it would not automatically translate into a finding of bias. 
For if that was the case it would mean that once a person is unsuccessful in proceedings, whether at review or in Court, the presiding officer would be barred from considering any future disputes in which the unsuccessful party is involved. Such a situation would be untenable and is simply devoid for any logical reason. 
This then leads me to the second ground for recusal namely, the impact of the email and whether that establishes apparent bias. 
That email contained my observation as to how I have experienced that specific review. Although the email referred to Mr Varney is less than cooperative the question remains whether an objective observer would view that email as indicative of apparent bias against Ms Morris or Mr Varney. 
If the email had been sent unsolicited, an objective observer might have some concern. However, in this instance the email was sent in response to an enquiry that was part of a complaint process initiated by Mr Varney. The email simply contained personal observations to assist the complaints process. 
Mr Varney submitted that bias became evident as the Court subsequently found in his client's favour, and quashed the 2012 review decision. By implication this showed that the 2012 review process was unfair, in contrast to my email. 
I have considered the District Court's decision of Judge Smith, as referred to by Mr Varney, and could not find any indication that would lead an objective observer to conclude that I am biased towards Mr Varney or Ms Morris. I base this finding on the following: 
The decision makes no reference to the email sent. 
Judge Smith made no finding, contrary to Mr Varney's submissions, as to the conduct of the review or the presence of bias. 
In the present matter I find the following passage of Mason J expressed in JRL, ex parte CJL 9, as referred to by the Supreme Court in Saxmere, relevant: 
‘ … it is equally important that judicial officers discharge their duty to such and do not, by exceeding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a Judge, they will have their case tried by someone thought to be more likely to decide the case in their favour …  ’
I conclude that a fair minded observe would not have a reasonable apprehension of bias arising from my attendance of the 2012 review hearing, or the email sent as part of a complaints investigation. 
Therefore, I decline to recuse myself as the appointed reviewer. ”
Discussion and Decision 
[64]
At the outset, I reiterate that an appeal to the District Court is by way of rehearing. The focus in an appeal is determining whether the reviewer's findings are correct based on the evidence at the time and subsequent to the review hearing. 
[65]
The legislative framework for the allocation of reviewers and their duties is set out under ss 137, 138 and 139 of the Act. Under s 137 the Corporation must, as soon as is practicable, allocate a reviewer to review. It is the duty of a reviewer to act independently and disclose any previous involvement. Specifically, a reviewer to whom the Corporation proposes to allocate a review must disclose any previous involvement in the claim other than as a reviewer, in accordance with s 138 of the Act. Under s 139 the Corporation has duties to secure independence of a reviewer. Section 139 provides relevantly: 
“139
Corporation's duties to secure independence of reviewer 
(1)
The Corporation must not engage as a reviewer a person who is currently employed or engaged by the Corporation to make decisions on claims in a capacity other than that of reviewer. 
(2)
The Corporation may engage a reviewer on a contract of service or contract for services. 
(3)
The Corporation must not include in the reviewer's contract any term or condition that could have the effect, directly or indirectly, of influencing the reviewer, when conducting a review, in favour of the Corporation. 
(4)
The Corporation must not allocate a claim to a reviewer who discloses to the Corporation any previous involvement in the claim other than as a reviewer. ”
(Emphasis added) 
[66]
Section 139 (4) is similar in wording to s 138(2) that a claim must not be allocated to a reviewer who discloses any previous involvement in the claim
[67]
The review transcript shows Mr Varney raised the issue of Mr Lock's involvement as reviewer towards the end of the hearing when he realised Mr Lock had acted as observer in a previous review. Mr Varney stated: 
“I only became aware that Mr Lock was the same person I had met years earlier about half way through Mr Lock's hearing. ”
[68]
Mr Varney submitted Mr Lock had an involvement twice. First as an observer to the hearing of Ms Morris' claim to lump sum compensation. Secondly, by later writing critical comment of Mr Varney's conduct as advocate in the hearing of Ms Morris' claim. Mr Morris submitted even if the former involvement is “sufficient”, the second involvement must be disclosed. Mr Varney submitted the fact it was an unrelated review hearing is of no account because the review involved the same parties. 
[69]
Mr Tuiqereqere countered Mr Lock's role was an observer in the hearing of Ms Morris' earlier claim at review, not as the decision maker determining the decision at review. Further, Mr Lock's comment as an observer in the hearing was sought by the investigator in the complaint against the reviewer about her conduct of the review. 
[70]
Section 138(2) is plain that disclosure relates to a previous involvement “in the claim”. Mr Tuiqereqere explained the purpose of the provision is intended to operate to preclude persons who have been involved in the management of the claim later sitting in determination of the claim. 
[71]
In my opinion the obligation of disclosure under s 138(2) is required when there is previous involvement “in the claim” not when there is previous involvement “in a claim” meaning a separate unrelated claim. The wording “in the claim” is expressly stated in s 138(2) and s 139(4) of the Act. 

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