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Accident Compensation Cases

ANZ Banking Group (NZ) Ltd v Accident Compensation Corporation (HC, 23/11/05)

Judgment Text

Keane J
This appeal relates to assessments made of the ANZ Banking Group (New Zealand) Limited by the Accident Compensation Corporation for the premium years 1997-98, 1998-99, under the Accident Rehabilitation and Compensation Insurance (Experience Rating) Regulations 1993. 
Those assessments went to the level of premium in those years that ANZ was required to pay to the ACC - to whether ANZ's basic premiums were to be loaded or discounted having regard to claims on ACC in those years, if any, by ANZ employees for work related injuries. ANZ did not challenge those assessments when they were made, as it was entitled to do, and wishes to do so retrospectively. But the statutory regime has since changed twice. 
The Accident Rehabilitation and Compensation Insurance Act 1992, for the purposes of which the assessments were made, ceased with the passing of the Accident Compensation Act 1998. The 1998 Act in turn has been replaced by the Injury Prevention, Rehabilitation, and Compensation Act 2001. It is under that present Act that this issue is to be considered, not abstractly, but within a particular case. 
In March 1997 an ANZ employee, Patricia Webb, claimed compensation for a work related injury - a sprain to the left elbow resulting she said from opening teller units. ACC immediately accepted the claim as for a work related injury and through ANZ paid Mrs Webb compensation, but omitted to take that decision formally, or to notify ANZ of it, until July 2001. When it did so ANZ did not accept the decision and invoked the right of review under Part 5 of 2001 Act. 
In the course of what became a series of reviews, resulting in two decisions that went to appeal, ACC accepted that Mrs Webb's injury was not work-related. As directed, ACC adjusted ANZ's assessments for the 1997-99 premium years to delete that loading, and refunded to ANZ that part of the premiums paid. It denied that this was a fresh assessment affording ANZ a right of review extending to other loadings embedded in those assessments. 
ACC's position was sustained both on review and on appeal and whether that involves any error of law is the issue on this present appeal. 
ACC's failure to notify ANZ that it had accepted liability in 1997 to compensate Mrs Webb for a work-related injury was not identified until Injury Management New Zealand Limited, on behalf of ANZ, took the point in a letter to ACC dated 12 July 2001. ACC wrote the next day to ANZ, as invited, confirming the decision and notifying ANZ that it enjoyed a right of review - the right ANZ immediately invoked. 
In a decision dated 6 November 2001 the first reviewer quashed ACC's decision. ANZ had, on behalf of ACC, been paying compensation to Mrs Webb for a work-related injury, but may have attributed that, she thought, to an earlier injury Mrs Webb claimed to have suffered. ACC had failed to ask ANZ, as it should, she held, to complete a work injury report and had issued its decision four years after the claim was made. Before ACC decided how to classify the injury, she concluded, it ought first to obtain an opinion from an occupational physician as to when and how it had been sustained - in March 1997, or earlier and by degrees. 
On 18 July 2002, after Mrs Webb had declined to be examined, ACC confirmed her injury to be work related, and on 23 July ANZ applied for a second review. This time, however, ANZ raised also the issue to which this present appeal in part relates. ANZ wanted Mrs Webb's claim purged from its claims history, and its experience rating for the premium years in question adjusted. 
On 11 October ACC confirmed that it intended to reclassify Mrs Webb's injury as unrelated to work. To pursue its wider challenge, however, ANZ persisted with its review and succeeded. On 11 November 2002 a second reviewer confirmed ACC's decision that Mrs Webb's injury was not work related, but went further. He required ACC to remove Mrs Webb's claim costs from ANZ's claims history, to correct ANZ's experience rating in the 1997-99 premium years, and to refund to ANZ any over payment. 
ACC did not accept this decision. The second review, ACC considered, had been confined to how Mrs Webb's injury was to be classified. It could not extend to any revision of the two rating assessments in issue. Under the 1992 regime, assuming it still applied, ACC contended, the last date to dispute an experience rating had well passed, as had the last date for the issue of assessments. It was 31 March 2000. 
ACC did not appeal the decision. Instead it complied with the directions given, but with a disclaimer. On 6 June 2003, after deleting Mrs Webb's claim from ANZ's experience ratings for the two premium years, ACC paid to ANZ $19,465.26. In a letter to IMNZL, dated 24 June 2003, ACC was careful to say that it had not gone further: 
“You have requested that an Experience Rating Adjustment Notice be issued to ANZ. ACC does not consider that it is required to issue a notice of assessment in this case. The alteration to ANZ's Experience Rating Assessment has been made to comply with a review decision and is not an assessment issued under the Experience Rating Regulations 1993. ”
ANZ did not accept ACC's position. On a third review it asserted that in making the rating adjustment directed in the two premium years ACC had made an incorrect fresh assessment. ANZ sought to reopen this assessment to the fullest extent, this time to challenge other loadings, even though it had not challenged them when the original decisions were made. The assessments had to be invalid, ANZ maintained, unless all loadings could be justified as for work related injuries; and that remained contestable. 
In a decision dated 6 November 2003 the third reviewer took a mid position. In making the refund directed, she held, ACC had adjusted ANZ's claims history, and that constituted a decision capable of review. But all that was able to be reviewed, she held, was whether the refund was correctly calculated. In her decision, dated 17 December 2003, she confirmed that it was. 
ANZ appealed those two decisions to the District Court and in a decision, dated 1 September 2004, its appeal was dismissed. 
Decision under appeal 
ANZ, the Judge held on the appeal, to take his wider conclusion first, could not mount a wholesale retrospective challenge to the rating assessments for the two premium years extending to loadings beyond that made in Mrs Webb's case. ACC had made those loadings, unchallenged, in decisions under the 1992 Act, and the 1993 Regulations and had not made any fresh decision under the 2001 Act triggering a right of review. 
As to the issue on the appeal itself, the Judge concluded that to the extent that the third reviewer had accepted in the first of her two decisions, that the 6 June 2003 refund constituted a decision susceptible of review she was incorrect. ACC, in making that payment, the Judge held, did no more than comply with the decision of the second reviewer, dated 11 November 2002. It made no fresh decision itself, susceptible of review, and was not entitled to. 
If that were wrong, the Judge concluded, the Court's jurisdiction on appeal went only, as the third reviewer had found in her second decision, to the accuracy of the calculation and payment ACC had made; and as to that there was then no issue. Nor is there any on this appeal. 
Appeal in point of law 
Section 162(1) of the 2001 Act confers the right of appeal by leave, for error of law, invoked in this case and on 14 April 2005 leave was granted on the following three questions of law: 
Did the payment made by the respondent Corporation in the amount of $19,456.26 constitute a decision capable of review? 
Does Reg 21A of the Experience Rating Regulations 1993 prevent the Corporation from reassessing the applicant's experience rating after 31 March 2000; and 
Whether, as a result of the payment by the Corporation in June 2003, and/or a decision by the Corporation dated 11 October 2002 determining that a previous employee of the appellant's, namely Patricia Webb, had not suffered a work injury, the appellant was entitled to re-investigate its entire experience rating assessment for the 1997/98 and 1998/99 premium years. 
The first and second questions are the true issues on this appeal. The third issue is merely an aspect of the first. 
Opposed positions 
ANZ contends on this appeal that ACC's deletion of Mrs Webb's claim costs from the assessments for the premium years called for more than a calculation. It called for the exercise of discretion. It was a decision open to review either under the 2001 Act, or by means of ss 16 and 17 of the Interpretation Act 1999 under the 1992 Act. That right of review, it contends, extends to every aspect of the assessment, most especially to the loadings. 
Regulation 21A of the 1993 Regulations, ANZ contends, did not and could not come into play. Like the 1993 Regulations as a whole, it was and remains subordinate to ss 101 and 104 of Part VII of the 1992 Act under which ANZ can only be charged increased premiums on account of claims by its employees for injuries attributable to work. 
Regulation 21A, ACC contends, by contrast, is determinative. It precluded, as from 31 March 2000, and precludes still, ACC from making fresh rating assessments, and that involves no unfairness. The cut off date took effect with ample notice, and cuts both ways. It precluded then, and precludes still, ACC from imposing on employers retrospective increases in premium. 
Consequently, ACC contends, in complying with the second reviewer's decision, with which it disagreed, the most that it did was to alter under Reg 21A(4) the then existing assessments and that was not and could not be an assessment susceptible of review, but if it was, as the third reviewer decided, that could only be as to accuracy. 
Ability to review and appeal 
The decisions under appeal, that dated 6 November 2003, and that dated 17 December 2003, the Judge held, primarily the former, were only susceptible of appeal, if the ACC's own decision, dated 6 June 2003, to refund to ANZ the sum refunded, if decision it was, was susceptible of review under Part 5 of the 2001 Act. The Court's jurisdiction on appeal under s 149, depended on the reviewer's prior jurisdiction under s 134. 
Had the review decisions and the appeal related to the underlying decision whether ACC had correctly classified Mrs Webb's injury as work related, the Judge appears to have accepted, there may have been jurisdiction. But that, as the Judge pointed out, had already been resolved by ACC itself and confirmed by the second reviewer. It was not the subject of the last two decisions on review and could not be the subject of the appeal. 
The status of the refund on 6 June 2003, and the underlying calculation, the Judge held, depended instead on how it was to be characterised under Part 6 of the 2001 Act, and in two related respects. One was whether the calculation and refund constituted a “decision” as defined in s 6. The other was whether it was susceptible of review under s 236(1). Those issues, the Judge said, were to be assessed against ACC's denial that it had made any fresh and independent decision. 
The only aspect of the definition of “decision” in s 6 within which the refund could have fallen, though the Judge did not say so, was s 6(f), “a decision relating to the levy payable by a particular levy payer.” The Judge was concerned rather with whether there was a right of challenge under Part 6, as to which s 236(1) says: 
“Any person who is dissatisfied with any decision of the Corporation in respect of any levy paid or payable or claimed to be payable under this Part by that person may seek a review by the Corporation of that decision within 3 months after the person is notified of the decision. ”
The calculation and refund, the Judge held, could not be understood to be a decision relating to a levy payable under Part 6, and that was fatal to any right of review or appeal. He expressed his conclusion in this way: 
“As it is the case that the appellant is not seeking to challenge any levy made by the respondent pursuant to its powers under the Injury, Prevention, Rehabilitation and Compensation Act 2001, then it must be the case that Section 236 of that Act cannot assist the appellant to establish status for the purposes of challenging the June 2003 ‘decision’. Any act which the respondent may have done in the making of a refund was not made pursuant to any statutory provision of the 2001 Act and therefore the provisions of that Act do not give rise to any status of the appellant as challenging a levy paid or payable under Part 6 of the 2001 Act. ”
The immediate difficulty with that conclusion is, as ANZ says, that ANZ was not seeking to challenge a “levy” payable under the 2001 Act. It was seeking to challenge a “premium” payable under the 1992 Act, and that is to be decided not, or not in the first instance, under Part 6 of the 2001 Act, but under the transitional provisions in Part 11, one purpose of which is, as s 352(c) confirms, to enable “reviews and appeals arising from decisions under the former Acts”
Section 391(2), the transitional provision preserving review and appeal rights under Part VI of the 1992 Act, does not, as ANZ accepts, assist. It requires that any application or appeal have been “filed before 1 July 1999”. But I agree with ANZ that this is not fatal. Instead ANZ is entitled by default to invoke under s 391(4) the rights of review and appeal conferred by Part 5 of the 2001 Act; a conclusion that happens to coincide with the Judge's own. 
Little, if anything, appears to turn on whether ANZ's rights of review and appeal derive from the one Act or the other. The mechanism is, as I understand counsel to agree, much the same in both. The critical question is rather whether Part 11 confers a right to challenge decisions as to premiums under the 1992 Act; and that it does by two steps. 
First of all s 393(1) says: 
“Section 457 of the Accident Insurance Act 1998 continues to apply to any levy or premium paid or payable under the Accident Compensation Act 1972, the Accident Compensation Act 1982, or the Accident Rehabilitation and Compensation Insurance Act 1992, as if it had not been repealed. ”
Then s 457(2) of the 1998 Act, which s 393(1) imports, says: 
“All the provisions of Part VII of the Accident Rehabilitation and Compensation Insurance Act 1992 and of every regulation and Order in Council made under that Act that relate to premiums (including provisions relating to classification of industries and experience rating), that are in force immediately before the commencement of this Act, shall continue in force and apply in respect of any obligation arising before 1 July 1999 as if that Act and those provisions had not been repealed or revoked, and also continue in force to the extent required to enforce those obligations. ”
In addition, though it is not essential, s 351, also in Part 11, confirms that any former Act resurrected in whole or part under the transitional provisions is to apply as if it had never been repealed. 
It follows to my mind that the issue with which the Judge was confronted was not, as he considered, whether the calculation and refund on 6 June 2003 constituted a decision under Part 6 of the 2001 Act, in some literal sense, but whether it constituted a decision under Part VII of the 1992 Act, lying within which, it will be recalled, are s 101, which imposed premium liability, and s 104, which went to experience rating and was given effect in the 1993 Regulations. 
To that issue it may or may or not be in point that s 390 of the 2001 Act, which enables the Corporation to amend or replace decisions taken under earlier Acts, provides that any such revised decision is a fresh decision to which the rights of review and appeal in Part 5 apply. 
Fresh assessment 
In adjusting the premium rating for the two years, and making the refund on 6 June 2003, ANZ contends, ACC did more. It exercised a discretion first under ss 101 and 104(1) of the 1992 Act and then under the formula prescribed in the 1993 Regulations. It made a fresh experience rating assessment susceptible of review and appeal. 
There is, ANZ contends, a discretion under s 104(1) whether to adjust the basic premium by reference to accident experience, and as to those parts of qualifying payments that are attributable: Waipa District Council v ARCIC (1997) 1 BACR 464 at 467, Judge Ongley. The formula calculation, under Reg 5 of the 1993 Regulations, incorporates one or both aspects of that discretion, ANZ contends also, in item “g”, which represents: 
“All, or such proportion as the Corporation in its discretion may determine, of the qualifying payments (if any) made by the Corporation in the premium liability year pursuant to the qualifying claims (if any) attributable, or deemed attributable, to the large employer in the premium liability year. ”
“Qualifying payment” is a term defined in Reg 2, which depends on other defined terms. It is a payment that: 
“... the Corporation is able to associate with a qualifying claim attributable to an employer, or deemed to be attributable to an employer under Regulation 6. ”
Regulation 2 defines a “qualifying claim” as a “work injury claim lodged in respect of employment with that employer and accepted by the Corporation”; and a “work injury claim”, the finally definitive issue, as one within s 65(1) of the 1992 Act. 
Consequently, ANZ contends, when ACC adjusted the assessments to delete Mrs Webb's claim and made the refund on 6 June 2003 that constituted a fresh decision under the 2001 Act, in which ACC affirmed afresh any other embedded loadings as work related, open in all respects to challenge on review and appeal. 
Such a challenge is not retrospective, ANZ contends. It relates to the decision just made. Nor is the absence of any earlier challenge disabling, whether under the statute or as a result of estoppel: Lane Walker Rudkin Ltd v ARCIC (1997) 1 BACR 472, at 476-477, Judge Ongley: Alstrom New Zealand Ltd v Accident Rehabilitation & Compensation Insurance Corporation & Anor (2000) NZAR 337, Judge Barber. 
In this case, however, in contrast to those cases, as the Judge clearly concluded, and as ACC itself contends on this appeal, there is a statutory bar. It is the nearly absolute time bar imposed by Reg 21A, introduced into the 1992 regime, not long before it ceased, to ensure an orderly transition to the 1998 Act, which was ordered on a radically different principle. 
Regulation 21A 
Ultimately fatal to ANZ's challenge, the Judge held, is the cut off date in Reg 21A. As he said, on this occasion referring to s 393 of the 2001 Act and s 497 of the 1998 Act: 
“... by those two provisions that Regulation 21A remains and prevents the respondent from being able to make any reassessment of the appellant's Experience Rating. It is clear by the provisions of Regulation 21A that the Legislature intended to bring to a close to power to levy or assess employers pursuant to Section 101 of the 1992 Act for the reason that the whole concept of the 1998 Act was to open up the insuring of employers to private insurers. The cut-off date noted meant that neither the respondent nor the appellant could relitigate the question of levies other than by review and appeal within the statutory timeframes. ”
Regulation 21A, ANZ contends however on this appeal, was not and is not an absolute bar. In one sense it was permissive. It enabled ACC to complete by 31 March 2000 rating assessments that should have been completed by 1 April 1999, the date on which the 1998 Act in main part took effect. And even then it was not and is not absolute. Reg 21A(4) envisages that reviews or appeals arising might extend beyond 31 March 2000 and says this: 
“The Corporation may at any time after a review or appeal under the Act becomes final and conclusive, whether before or after 31 March 2000, make any alteration to an assessment that is necessary to make the assessment comply with the decision on the review or appeal. ”
In substance the “alteration” permitted under Reg 21A(4), ANZ contends, must be a fresh assessment. The calculation merely provides a mechanism to give effect to the discretion conferred by s 101, 104(1) of the 1992 Act: Accident Rehabilitation and Compensation Insurance Corporation v Waitakere City Council (AP 141-SW99, High Court Auckland, 7 July 2000, Salmon J paras 13-21). 
If then, in making an assessment before the 1992 regime ceased, or an “alteration” under Reg 21A(4) afterwards, ACC exceeded its power by including within an assessment claims by ANZ employees for injuries unrelated to work, ANZ contends, ACC cannot simply sit on its hands. It must be able to correct that by fresh assessment; and by the refund calculation in June 2003 that is what it did. 
Like the Judge, however, I consider that the intent of Reg 21A was to bring to a conclusion the assessment regime under the 1992 Act, on the passing of the 1998 Act, and to permit experience rating assessments and payment liabilities only to be revisited exceptionally under Reg 21A(4); and not in the wholesale sense ANZ contends for. 
Two preconditions must be satisfied, as ACC says, before Reg 21A(4) can come into play. There must be an assessment complying with Reg 21A(2): that is an assessment made before 31 March 2000. And there must be a final and conclusive review or appeal decision relating to the assessment. In the absence of the one or the other ACC has no ability to act. Correlatively, ACC's derivative power to act involves no fresh exercise of discretion. ACC's power, even duty, is to give effect to the review or appeal decision which is final and conclusive. It is an ability only to “make any alteration ... that is necessary to make the assessment comply with the decision on the appeal or review.” That involves no decision susceptible of review and appeal. 
The ambit of the decision on review or appeal, moreover, determines the ambit of the alteration; and in this case that is the decision of the second reviewer on 11 November 2002 in which he did no more than to confirm ACC's own decision that Mrs Webb's injury was not work related and to require ACC to alter under Reg 21A(4) the assessments for the two premium years and to refund to ANZ whatever it was due. Other loadings were not in issue even abstractly. ANZ had never challenged them under the 1992 regime and had become time barred from doing so. 
It follows equally, to my mind, that any argument independent of the 2001 Act, relying on ss 17 and 18 of the Interpretation Act, must be equally barren. In no sense could those loadings, or ANZ's rights of review and appeal relating to them, be regarded now as inchoate. The assessments in those respects crystallised before the 1992 regime ceased to be. ANZ has no vestigial right of challenge on any basis on which it can now rely. 
For these reasons, in which I differ in part from the Judge, I see no error in his conclusion, with which I agree, and the appeal will be dismissed. 

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