Skip to Content, Skip to Navigation
Advertisement

Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



Accident Compensation Cases

JOHNSTONE v ACCIDENT COMPENSATION CORPORATION (HC, 04/03/93)

Judgment Text

JUDGMENT OF HANSEN J 
HANSEN J
In the amended statement of claim the plaintiff sought a declaration that the Accident Compensation Appeal Authority did not have jurisdiction to set aside its decision no.246/89, and such decision was binding on the parties. He also sought costs. 
On the 10th January, 1987, the plaintiff suffered an injury to his elbow in the course of his employment as the Comalco Aluminium Smelter at Bluff. He received earnings related compensation from the Corporation, pursuant to the Accident Compensation Act, 1982. On the 5th November, 1987, the Corporation made an assessment decision reducing the amount of the plaintiff's earning related compensation. This was not accepted by the plaintiff, and he applied for a review of that decision under no.88/1100. Independently, on the 19th February, 1988, the Corporation ceased payments of all earnings related compensation to the plaintiff on the grounds of unreasonable refusal to comply with the rehabilitation program, pursuant to s 87(3) of the Act. Again, the plaintiff was unhappy with the decision, and applied for a review of that decision under no.88/1123. Both of the review applications were heard on the same day by the same review officer. A small degree of confusion may have arisen because the transcript was issued under the no.88/1100, when, clearly, part of that transcript applies to 88/1123. However, when the review officer refused both applications he issued separate decisions, and simply by looking at those it is clear that it would be impossible for there to be any confusion as to the two separate matters. 
The plaintiff, through his solicitor, then filed an appeal against the review decision in 88/1100. It is quite apparent that no appeal was lodged against decision 88/1123. A reading of the notice of appeal makes it plain that it cannot be argued that it even purported to be an appeal against anything other than review decision 88/1100. 
The appeal was heard on 10th August, 1989. That resulted in three decisions, one of which increased a lump sum amount under s 79, and is irrelevant for present purposes. The first decision 246/89 of the 18th September, 1989, purported to over-rule the cancellation decision and directed the reinstatement of the earnings related compensation. The second relevant decision, dated 15th May, 1990, and numbered 113/90, purported to set aside decision 246/89, overruling the assessment decision. This was occasioned by memorandum filed by counsel for the defendant pointing out that there had been no appeal against the cancellation decision in 88/1123. Unfortunately, the appeal authority did not invite submissions from the plaintiff, but it is clear his solicitor was kept informed by counsel for the defendant of all steps that were taken. 
Mr Marshall, on behalf of the plaintiff, sought to suggest that the defendant was not seeking to take advantage of a mistake. He referred to paragraph 5 of counsel of the defendant's memorandum filed, which states:— 
“Oral submissions were made by counsel for the respondent specifically with respect to the limits of the Appeal Authority's jurisdiction and specifically referred to the fact that, even if the Appeal Authority were to allow the appeal in respect of make up compensation, no earnings related compensation payments would be made by the corporation in terms of its decision dated the 19th February 1988, until the appellant complied with its requirements in respect of his rehabilitation. ”
It was the February 1988 decision that was the cancellation decision. I cannot read that statement as in some way submitting the cancellation question to the appeal authority, as Mr Marshall suggested. It is simply a statement by counsel effectively pointing out that the appeal authority was not seized of the cancellation issue. 
Mr Marshall also submitted on behalf of the plaintiff, that he found himself in a ridiculous position of having succeeded in his appeal as to quantum, but being unable to receive any compensation due to the purported setting aside of decision 246/89. That is not correct, because there was still the issue of quantum from the 5th November, 1987 until the 19th February, 1988. 
It is clear on the facts before the Court that there was never any appeal lodged against the cancellation decision, and that the Appeal Authority purported to deal with a matter that was never before it. It is equally clear that that issue was not addressed by counsel at the appeal hearing, and there has never been a hearing as to the merits of that appeal. It is to be noted that the defendant has all along taken a responsible view, and has agreed to the lodging of an appeal against the cancellation decision out of time to enable that issue to be determined on the merits. 
That concession was unacceptable to the plaintiff, who, in my view, now seeks to have a decision upheld which he well knows was never before the Appeal Authority, and which has never been determined on the merits. 
The plaintiff's argument was that by virtue of s 190(6) of the Accident Compensation Act, 1982, the Appeal Authority was deemed to be a Commission of Inquiry under the Commission of Inquiry Act 1908. Subject to the provisions of the Accident Compensation Act 1982, all the provisions of the Commission of Inquiry Act, excepting ss 2,10,11 and 12, applied. Section 4 of the Commission of Inquiry Act relates to commissioner's powers and states: 
“For the purposes of the inquiry, every such commission shall have the powers of a District Court in the exercise of its civil jurisdiction, in respect of citing parties … and conducting and maintaining order at the inquiry. ”
The plaintiff submits that this section means that the powers of the District Court in its civil jurisdiction are limited to citing parties and conducting and maintaining order at the inquiry, and does not extend to the setting aside of judgments. Section 13 of the Commission of Inquiry Act outlines certain powers, but this seems to appear to relate to situations where High Court Judges have been appointed as commissioners. It is accepted that the commissioner in this instance was His Honour Judge Middleton, who is a District Court Judge. 
Mr Marshall also cited the decision of the Chief Justice in Browne v Minister of Immigration [1990] NZAR 67, to support his submission. In that particular case it was sought for the Deportation Review Tribunal to undertake of rehearing of the matter. The Court held that the tribunal as a commission of inquiry did not have that power. 
Further support for the submission was drawn from an analogy with s 110 of the Sale of Liquor Act 1989. That section gives a specific power to rehear. Mr Marshall submitted that the clear inference from a section such as that is that that legislature recognised the power to rehear a matter, and it is in addition to the powers given under the Commission of Inquiry Act 1908. 
Ms French submitted the authority had no jurisdiction to adjudicate on a matter that was not the subject of an appeal and on which neither party had been heard. The Authority is clearly a statutory body constituted by s 103 of the Accident Compensation Act. Sections 103(2) and 107 provide that the Authority's function is to sit as a judicial authority for the determination of appeals from the decision of review officers. The powers and the hearing of the appeal are set down in s 109. Section 109(7) expressly stipulates: 
“In the determination of any appeal the Authority may confirm, modify, or reverse the decision appealed against. ”
(My emphasis)
Clearly, the Authority had no jurisdiction to adjudicate a decision that had not been appealed against. Ms French pointed out that it is common ground that the cancellation decision was never appealed against. She also pointed out that although the appeal authority did not invite submissions from the plaintiff's counsel following receipt of the corporation's memoranda, no objection was ever taken to that memorandum, even though the solicitor for the plaintiff was kept fully appraised. It is also clear, as Ms French submitted, that the Authority took into account irrelevant matters, and failed to consider relevant matters in the course of its appeal. It appears that despite the fact there was no appeal against the cancellation order, the Authority, in considering the matter, mixed up evidence relating to the two separate reviews. Ms French finally submitted that the decision was made in breach of natural justice, because the parties were never given the opportunity to be heard on the cancellation decision and the issues in that decision have never been the subject of a proper inquiry before the Authority, as the Act requires. 
She submitted, correctly in my view, that the breach was a fundamental one, and clearly prejudicial to the defendant. She submitted that the decision 246/89 was vitiated by the fundamental errors, and could not be allowed to stand. 
In relation to decision 113/90, she accepted that the Authority, in attempting to correct the error, compounded the problem. She agreed with Mr Marshall's submission that there was nothing in either of the Commissions of Inquiries Act, or the Accident Compensation Act, which empowered the authority to quash its own decisions, or to substitute another decision. She finally, submitted that the appropriate course of action was to refer the matter to the High Court, either by way of judicial review, or under the appeal provisions of s 111 of the Accident Compensation Act. 
Ms French also distinguished Browne v Minister of Immigration relied on by Mr Marshall. She accepted that while certainly that case was authority for the proposition that decision 113/90 should be set aside, it did not necessarily follow from Browne that the decision 246/89 should be allowed to stand. She points to the fact that in Browne the first decision was a result of a full initial hearing, with no question of it being tainted by jurisdictional error. She said this is quite different from the present case where there was never any inquiry held, the plaintiff did not file an appeal and did not argue the matter at the Appeal Authority. She also pointed out the Corporation has agreed over 2 1/2 years ago to allow the plaintiff to appeal out of time. In fact, the statement of defence invites this to occur. 
I consider the submission that the Authority has no jurisdiction to quash its own decisions to be correct for the reasons so clearly advanced by counsel. However, it does not follow, in my view, that the plaintiff is entitled to the fruits of a clearly erroneous decision. It would be quite wrong for him to enjoy the benefits of a decision on appeal he never lodged or prosecuted. Browne is not authority for that proposition for, as Ms French pointed out in Browne, there had been a full hearing unaffected by jurisdictional error. 
Section 7 of the Judicature Amendment Act, 1972, reads: 
7 Disposal of Proceedings for Declaration or injunction — Where proceedings are commenced for a declaration or injunction, or both, whether with or without a claim for other relief, and the exercise, refusal to exercise, or proposed or purported exercise of a statutory power is an issue in the proceedings, the Court on the application of any party to proceedings may, if it considers it appropriate, direct that the proceedings be treated and disposed of, so far as they relate to that issue, as if they were an application for review. ”
Ms French submitted that the appropriate way of regularising the situation now confronting the Court and enabling the cancellation question to be disposed of on its merits was for an order to made, pursuant to rule 626 of the High Court Rules. The relevant portion of that Rule reads: 
“626. Certiorari — 
(1)
Where application is made to the Court to review any judgment or decision given or order made in any action or proceeding in any inferior Court or by any tribunal constituted by or under any Act which, or by any person who, has a duty to act judicially, on the ground — 
(a)
That the inferior Court or tribunal or person has exceeded its or his jurisdiction, or has in any respect committed a jurisdictional error; or 
(b)
That there is some error of law, defect, or informality on the face of its or his record,— by reason of which the Court is entitled to quash or set aside the judgment or decision or order, the Court may make an order for certiorari or such other order as the Court thinks just or both an order for certiorari and such other order as the Court thinks just. ”
She applied, on behalf of the defendant, for an order that both decisions, 246/89 and 113/90 be set aside, and that the authority be directed to rehear the appeals in respect of review number 88/1100 and review number 88/1123. It is to be noted that when the present solicitors commenced acting for the plaintiff, an appeal was lodged out of time in relation to 88/1123, but was adjourned sine die in May of 1991. The plaintiff obviously considered it appropriate to commence these proceedings. When it was suggested by the Court to Mr Marshall that such was an appropriate course of action, given that the cancellation matter had never been dealt with on the merits, he responded by saying his instructions did not allow him to accept such a course of action. He said these High Court proceedings were issued because of a concern that the decisions 246/89 and 113/90 may have been a jurisdictional bar to having the appeal relating to the cancellation matter heard on the merits. That, however, does not explain why the plaintiff does not now agree to a course of action that would enable a matter he never appealed against initially to be dealt with on the merits. 
I am quite satisfied that Ms French's application should be granted, as it is the most appropriate way of dealing with this matter. Because of the way the appeal was treated, it seems to me inevitable that 88/1100 will have to be revisted as well. I do not consider the plaintiff should be entitled to the benefit of a decision from the Authority purporting to overturn the conclusion reached by the review officer when he never appealed that decision and when it has never been dealt with on its merits. 
Accordingly, there will be an order that Accident Compensation Appeal Authority decisions 246/89 and 113/90 are to be set aside, and the Authority is directed to rehear the appeal in respect of review number 88/1100 and review number 88/1123. 
Counsel are to file memorandum as to costs within 7 days of the handing down of this judgment. If counsel require assistance in the form of any consequential amendments they may have this matter relisted in front of me on the 5th April, 1993. 

From Accident Compensation Cases

Table of Contents