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Accident Compensation Cases

Maharaj v Accident Compensation Corporation (DC, 25/11/16)

Judgment Text

ORAL DECISION OF JUDGE L G POWELL APPLICATION TO STRIKE OUT APPEAL 
Judge L G Powell
[1]
This is an application by the Corporation to strike out Mr Maharaj's appeal against a decision dated 14 May 2008, which suspended his entitlements in respect of an injury sustained on 13 December 2006. 
[2]
The appeal has had a protracted procedural history but in recent months there has been some considerable progress whereby a number of additional decisions have been made by the Corporation expanding the cover granted to Mr Maharaj, as well as making additional decisions with regard to Mr Maharaj's entitlements. 
[3]
It is clear looking at these decisions that the Corporation had the clear expectation that following the issue of these decisions Mr Maharaj would withdraw the present appeal. 
[4]
Mr Maharaj has not done so and instead asserts that there are a large number of issues that still require the consideration of this Court that pertain to the present appeal. 
[5]
Against that background the Corporation has made the present application to strike out. The Corporation's application is made on the basis that “ACC has overturned its section 117 suspension decision which has been the subject of a review decision and has now been appealed to the District Court”
[6]
If that were the position it is clear that the appeal could not proceed. However, looking at the various decisions that have been made by the Corporation including the original suspension decision I am not satisfied that the original decision has in fact been revoked. As noted the original suspension decision related to Mr Maharaj's injury of 13 December 2006. In that decision the Corporation advised: 
“ACC has looked carefully at all the information now available and has decided that your current condition is no longer the result of your personal injury of 13 December 2006. The medical evidence shows that the cause of your current condition is due to pre-existing degeneration changes. 
This means that you are no longer entitled to support from ACC. 
ACC has suspended all entitlements with effect from 25 May 2008. ”
[7]
It is apparent that the subsequent decisions in relation to cover, entitlements and Mr Maharaj's ACC claims generally do not deal specifically with the issue of the suspension of Mr Maharaj's entitlements relating to his 13 December 2006 injury. On that basis alone this Court cannot strike out Mr Maharaj's appeal given that the appeal has been brought on the basis that that decision in relation to that injury is wrong. 
[8]
Accordingly the Corporation's application cannot succeed. This then raises the question about what is the next step. Although a strike out order is inappropriate at this time, it is apparent that the recent decisions by the Corporation have substantially altered the landscape of the relationship between Mr Maharaj and the Corporation and to the extent that Mr Maharaj is unhappy with the Corporation it is in large part because of these recent decisions rather than the original 14 May 2008 suspension decision. As I have pointed out to Mr Maharaj in the hearing this morning those recent decisions of the Corporation are not able to challenged in the context of the present appeal and given Mr Maharaj has indicated he has not separately challenged those decisions it is unclear on what basis those decisions could now be considered by this Court. If this appeal goes to hearing there is accordingly a real likelihood that the real issues between Mr Maharaj and the Corporation will not be able to be addressed. 
[9]
I canvassed the possibility of adjourning the present strike out application to enable the Corporation to formally revoke the decision of 14 May 2008 but this course of action is opposed by Mr Maharaj. On reflection I agree the present application for a strike out should be dismissed. However should the Corporation take steps to formally revoke its decision of 14 May 2008 the inevitable consequence will be that this appeal will not be able to proceed as the underlying basis of the appeal would have disappeared. 
[10]
The upshot is that at the present time Mr Maharaj's appeal will proceed on a track to hearing at an Auckland circuit in the first part of 2017. If however the Corporation in the meantime revokes its decision of 14 May 2008 it is to advise the Court as soon as possible with regard to that step and I will issue further directions at that point. Obviously the later any revocation decision is left the more likely that the inconvenience may be reflected in a costs award and, as a result, the Corporation is encouraged to regularise the position as quickly as possible. 
[11]
In the meantime I confirm the application to strike out is dismissed. Costs are reserved. 

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