Skip to Content, Skip to Navigation

Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters

Accident Compensation Cases

Howard v Accident Compensation Corporation (HRRT, 15/05/08)

Judgment Text

Mr R D C Hindle Chairperson, Ms J Grant, MNZM Member, Ms D A Clapshaw Member
In this proceeding the plaintiff wishes to advance a complaint under the Human Rights Act 1993 (“the HRA”) relating to the way in which he considers that he has been treated by the defendant (“the ACC”). The ACC's response is that the claim that has been filed does not disclose any tenable claim of unlawful discrimination, and that in any event there are other reasons why the matter should be struck out at this stage. 
For reasons which follow, we find that the claim that has been filed does not disclose a claim that we are able to understand. We agree with the ACC that the proper course is to strike the claim out on the basis that, as it presently stands, it has no prospect of success. However we do so on the basis that the plaintiff is free to file a fresh claim relating to the same events if he wishes to, as long as he presents the claim in such a way as to fairly inform the ACC (and this Tribunal) what his case is about. At the same time, while we will venture to make some comments about other grounds that the ACC relied upon in its strike-out application, again we leave the matters open so that, if a further claim is filed, the ACC will be free to raise the other points again if it considers it appropriate to do so. 
This proceeding was commenced late in October 2007. In very general terms, it relates to what the plaintiff contends to have been a failure by the ACC to arrange for him to be assessed for vocational rehabilitation under the Injury Prevention Rehabilitation and Compensation Act 2001 (“the IPRCA”) before he turned 65 - at which point his entitlement to support in the form of vocational rehabilitation came to an end: see our decision in Howard v Attorney-General (No. 3: Substantive Issues) [2008] NZHRRT 10 issued today. 
Issues raised by the plaintiff concerning his experiences with the ACC and/or relating to the question of vocational rehabilitation have already given rise to at least the following decisions: 
Howard v Accident Compensation Corporation (Decision 121/2005, District Court, Wellington, 13 April 2005 per Judge Ongley); 
Howard v Accident Compensation Corporation (Decision 154/2005, District Court, Blenheim, 13 May 2005 per Judge Barber); 
Howard v Accident Compensation Corporation (Decision 8/2006, District Court, Wellington, 17 January 2006 per Judge Cadenhead); 
and, in this Tribunal, 
Howard v Attorney-General [2006] NZHRRT 46
Howard v Attorney-General (No.2: Application for Adjournment) [2007] NZHRRT 24; and 
Howard v Attorney-General (No.3: Substantive Issues) [2008] NZHRRT 10 (issued today). 
As a result we do not propose to repeat the background out in detail, but there is a factor of potential relevance which needs to be noted. After the litigation in the District Court the plaintiff entered into a settlement with the ACC on 1 May 2006. The plaintiff agreed to accept a payment of $45,000: 
“ … in full and final settlement of all disputed claims that the claimant has made for entitlements including weekly compensation and any claim for interest thereon and all claims that have been or may be made against the ACC, their agents, and/or employees, howsoever arising out of the Claimaint's application for or receipt of Accident Compensation entitlements and the managments [sic] of his covered claim. ”
(emphasis added)
The settlement provided that payment was without admission of liability, and that it would be made within three weeks. Since there is no suggestion that the ACC has failed to pay what was due under the settlement, we infer that payment was indeed made to, and received by, the plaintiff before the end of May 2006. 
There is another aspect to be noted as well. The present claim appears to have had its origins (at least, from a procedural point of view) in the way in which the Tribunal dealt with the plaintiff's claim in the proceedings under HRRT 15/06 against the Attorney-General. In a decision dated 11 December 2006 the Tribunal struck out two out of three separate causes of action in that proceeding. Subsequently the plaintiff filed an amended claim dated 18 June 2007 in those proceedings which, if allowed, would have effectively added the ACC as a party to the proceedings. That initiative was opposed by Crown counsel on a number of grounds, one of which was that the proposed claim against the ACC did not disclose a reasonable cause of action under the HRA. It was noted that the claim did not identify an appropriate “comparator”, nor did it identify discrimination on any prohibited ground. There was also an issue as to whether the concerns relating to the ACC had ever been the subject of a complaint to the Human Rights Commission — that being a jurisdictional threshold for proceedings of the kind in the Tribunal (see ss 92B and 76(2)(a) of the HRA). 
By September 2007 the plaintiff had decided to file his claim against the ACC in a separate and new proceeding, after first referring the matter to the Human Rights Commission. The present claim is the product of that process. But we think it relevant to note that, even before the present claim was first filed, the plaintiff was already on notice that his claim against the ACC would be scrutinised to see whether a tenable claim of unlawful discrimination had been disclosed (and, specifically, that his claim would have to identify the basis of any allegation that the ACC's conduct towards him was linked to his age, or some other prohibited ground of discrimination). 
The claim at issue 
The claim at issue is dated 23 October 2007. The standard form supplied by the Ministry of Justice for claims under the HRA in this Tribunal pursuant to Regulation 5(a) of the Human Rights Review Tribunal Regulations 2002 (“the Regulations”) was not used, nor was it followed in form or in substance. Instead the claim is made up of 16 pages of reasonably closely typed script. It starts with what appears to be a legal submission relating to the way in which the Human Rights Commission dealt with the plaintiff's complaint. Legal argument is scattered throughout the document and, indeed, makes up by far the greater part of the document. Insofar as the document refers to matters of fact, the allegations are interwoven between the legal arguments and other references. 
Of course the fact that the relevant form was not used is not fatal to the claim. But taken as a whole, the claim is very hard to follow. 
In the circumstances, and given the Crown's response to the attempt by the plaintiff to raise these issues in the earlier proceedings, we are not surprised that the ACC has asked us to make an order striking the claim out. However the grounds of the ACC's application go beyond the issue of whether there is a tenable claim. The ACC's position is that (we list the points in the order in which we propose to discuss them): 
The proposed claim does not disclose any tenable claim of unlawful discrimination by the ACC; 
The plaintiff is, or should in any event be, prevented from bringing any claim that might be discerned from the papers that he has filed because of the settlement that he entered into; 
This Tribunal does not have jurisdiction to hear the matter since the claim raises issues that have already been (or ought to have been) dealt with under IPRCA; 
If there are any discernable allegations of unlawful discrimination they should be treated as being res judicata as between the plaintiff and the ACC because of the claim brought by the plaintiff in this Tribunal under No. HRRT 15/2006 (and in which the three decisions listed at paragraph [4] 
to [f] above have been issued). 
The plaintiff has responded to all of these arguments, but amongst his arguments in response to the point at paragraph [11] [b] there is a suggestion that the settlement was entered into on a misunderstanding of some sort, or following a misrepresentation, and/ or that it is an unconscionable bargain which ought not be enforced against him. As far as we can see, however, the plaintiff does not appear to be suggesting that the claims he now wishes to put forward do not come within the terms of the settlement. He takes issue with its provenance, not its scope. 
Approach to the strike out application 
It was accepted that the application to strike-out should be dealt with on the basis of written submissions and materials, and without a viva voce hearing of any kind. Submissions have since been filed and considered. 
It appears also to be accepted by the plaintiff that we have the power to make the order that the ACC asks for (see s 115 of the HRA and, e.g., Bisset v The Rt Hon. Winston Peters [2004] NZHRRT 33 and Mackrell v Universal College of Learning (High Court, Palmerston North, CIV 2005-485-802, 17 August 2005 per Wild, J)) and that our approach to the application should be as described in Attorney-General v Prince and Gardiner [1998] 2 NZLR 262
Of particular relevance in this case, we note the following passages from the High Court decision in Mackrell v Universal College of Learning (supra): 
“Parties seeking redress from Tribunals and Courts must state their claim in a way which enables the Court or Tribunal and parties responding to the claim to understand what the claim is about. Claims should be pleaded in the most succinct and concise way possible. 
Tribunals and Courts, and responding parties, should not be left in the position of attempting to make sense of a ‘morass of information’ (to borrow the Tribunal's description of Ms Mackrell's claim). To put Courts and respondents in the position of having to try to make sense of the incomprehensible is what is meant by the rather quaint terms ‘embarrass’ and ‘prejudice’ in relation to pleadings. 
Due allowance is to be made for lay litigants … But lay litigants, like litigants who are professionally represented, are required to comply with the pleading rules and procedures of Tribunals and Courts. They are not to be permitted to file incomprehensible claims, because that only visits prejudice and injustice upon the respondent, not to mention enormous incovenience to the Court or Tribunal ”
(at para's [57] to [59]).
We deal with each element of the application to strike out separately. 
No tenable cause of action disclosed 
It is submitted for the ACC under this heading that, in order to set up a tenable claim of discrimination, the plaintiff must at least allege that: 
He was treated by ACC differently than others; 
The difference of treatment was on the basis of one or more of the prohibited grounds of discrimination set out in s 21 of the HRA; 
The difference of treatment has resulted in disadvantage to the plaintiff (we note this last point for completeness, although it does not need any particular attention in this decision). 
Although the plaintiff's claim refers to the way in which certain other ACC claimants have been treated by ACC, the mere fact of different treatment does not give rise to a claim of discrimination. The ACC says that the requisite link to any of the prohibited grounds is missing: there is nothing in the claim to suggest (much less give rise to a tenable claim) that the way in which the plaintiff has been treated by ACC in the management of his claims has had anything to do with his age, his disability, his employment status, or any of the other grounds listed in s 21. 
We have studied the proposed claim in an effort to make sense of it. It does seem reasonably clear that two points of particular concern to the plaintiff are that: 
The ACC refused or failed to issue a decision about the plaintiff's entitlement to weekly compensation; 
The ACC refused or failed to arrange assessments of the plaintiff's vocational rehabilitation needs before he reached age 65. 
It is conveivable that the claim was intended to allege that the ACC failed to deal with the plaintiff's affairs in a timely way because of his advancing years, and in light of the fact that at age 65 his entitlement to vocational rehabilitation would be lost by virtue of s 85 and cl 52 of the First Schedule to IPRCA. That is, however, a serious allegation. It involves a suggestion of deliberate unlawful intention on the part of the ACC. It is not an allegation that we are willing to attribute to the plaintiff unless it is made by him in such a way that it is clear and unambiguous, and is supported by appropriate particulars. 
Instead we agree with the ACC that, as it stands, the plaintiff's claim does not disclose any comprehensible basis for a conclusion that even if either or both propositions in paragraph [19] were found to be established by evidence in due course, they would be sufficient to give rise to a breach of the HRA. Even putting aside difficulties as to whether this ought be treated as a Part 1A case or as a Part 2 case, there is no satisfactory link that we can discern in the pleading to any of the prohibited grounds. Overall, we find the claim to be unacceptably confusing and unclear. 
We have considered whether it might be appropriate to give the plaintiff an opportunity to file an amended claim rather than to strike the present claim out altogether. But, as noted, even when the plaintiff filed the present claim he was already on notice that he would have to identify the basis on which he alleges that any defaults by the ACC were linked to one or more of the prohibited grounds of discrimination under the HRA. Even giving due allowance for the fact that he is a lay litigant, his failure to provide the information is significant. 
If this proceeding were to be allowed to go forward, the first thing the plaintiff would have to do is to file an amended claim which conforms with the requirements of the Regulations and which, most importantly, sets out in a clear and concise way (preferably chronologically, and where possible with reference to names, times, dates and other relevant particulars) what specific acts, omissions or other circumstances the plaintiff is putting forward to support a decision by the Tribunal that the ACC's conduct in the matter was linked to his age (or whatever other ground is relied upon). At the same time all of the legal argument and other extraneous material in the claim would need to be removed. The document would need to be substantially re-organised. The object of a such revision would of course be to produce a succinct form of claim from which both the ACC and the Tribunal would be able to understand what the factual basis of the claim is said to be, which of the grounds of prohibited discrimination are said to be engaged and how, and what remedy the Tribunal is being asked to award to to the plaintiff if he is successful. 
All in all, the present pleading would need such extensive revision that, once revised, it would for practical purposes be a new claim. 
There are no filing fees payable for the commencement of proceedings in the Tribunal, and no immediate time limits to be concerned about. The only real consequence of a decision that the present pleading should be struck out is that the ACC will be entitled to ask for an award of costs. But, given the history of this matter, we do not see that as inappropriate. 
For these reasons we have concluded that the claim dated 23 October 2007 in this proceeding should be struck out. There is an order accordingly. However we make our order on the express basis that the plaintiff will be free to file a fresh proceeding arising out of the same events if he wishes to do so, after he has given consideration to the points made in this decision. Equally, we reserve liberty to the ACC to apply for orders striking out or dismissing any new claim by the plaintiff if it seems to the ACC that such an application is warranted should a new claim be filed. 
Effect of the settlement 
Although our decision that the claim does not disclose a tenable cause of action is sufficient to deal with the matter, we think it would be unhelpful not to discuss some of the other points that were raised by the ACC, if only briefly. 
Amongst the other points raised by the ACC are issues relating to the settlement that was entered into between the plaintiff and the ACC on 1 May 2006. The relevant terms are set out at paragraph [5] above. As already stated, we understand that the plaintiff is not arguing that any of his claims would escape the application of the settlement if it is regarded as binding. Rather we understand his response is to say — at least in part - that he ought not to be held to the settlement because it was entered into by mistake on his part, or following a misrepresentation of some sort, or that it would be unconscionable if he were to be held to it. He has also submitted that the Tribunal should not dismiss his claims on the basis that the settlement prevents him from bringing them without first hearing evidence about the circumstances at the time it was entered into, and what was intended, and why he signed it. 
We agree with the plaintiff that, if there really are issues as to the enforceability of the settlement, then any proper claim for unlawful discrimination should not be brought to an end on the basis that the settlement applies until the issues of enforceability have been determined. We also agree with him that if there are disputes of fact to be decided in the process then one would expect that to involve evidence which is given at a hearing established to test the provenance of the settlement. But the fact that there may be issues as to whether the settlement is a binding contract gives rise to a potentially significant procedural question which has not been addressed by either party: does this Tribunal have power to hear that kind of argument? 
Contractual questions about misrepresentation, mistake, unconscionability and the like are questions that are usually determined in the courts of general jurisdiction. For presently relevant purposes, our powers are conferred by the HRA. Putting aside the possibility of a claim for relief under ss 92I (e) and/or (g) HRA on the basis that a contract is illegal because it was entered into or involves performance that is in breach of the HRA (neither of which are raised in any adequate way in the plaintiff's claim) our powers do not include any explicit power to determine issues of misrepresentation, mistake, unconscionability or the like. 
A similar issue was considered in the case of Proceedings Commissioner v A [1999] 1 NZLR 189, albeit under the HRA as it stood before amendment in 2001 and in a slightly different factual context. Even so, we note the observations of Her Honour Potter J: 
“The failure to provide in the [HRA] an appropriate regime for enforcement of settlement agreements reached pursuant to the Act, indeed seems an unfortunate, and serious omission. However, I am not able to derive from the Act any clear intention that the tribunal was to have jurisdiction to enforce settlement agreements. If the legislature intended that the tribunal should have power to enforce such agreements then that power needs to be given to the tribunal, which derives its powers entirely from the Act. Furthermore, the extent of the powers of the tribunal in relation to the enforcement of settlement agreements would need to be defined. These are policy decisions and it is not for this Court to attempt to fill a gap which would invoke policy decisions. ”
The amendments of 2001 addressed the issue, to an extent. By s 92B(4) of the HRA as it now stands the Tribunal has an express power to deal with issues relating to settlement when there has been a complaint under s 76(2)(a) of the Act. The subject is discussed in more detail in the Tribunal's decision in Director of Human Rights Proceedings v Smith & The Christchurch Press [2002] NZHRRT 16
We do not know whether the settlement at issue here was a settlement of a complaint made under s 76(2)(a) of the HRA. If not, then there is a question as to whether or to what extent the HRA as it now stands can or should be interpreted as allowing the Tribunal to engage with issues about the enforceability of the settlement at all. Perhaps the powers under s 105 HRA may be relevant, although any suggestion of such a jurisdiction seems to be arguable at best. Even if the settlement was reached in the context of a complaint made under s 76(2)(a) HRA, there is an issue as to whether the reference in s 92B(4) of the HRA goes so far as to empower this Tribunal to decide essentially contractual issues, and/ or whether the Act intends to include the situation here in which the ACC is putting the settlement forward as a reason to strike the proceedings out, while the plaintiff says he ought not be bound by the settlement at all. 
It may be that any new proceedings in this Tribunal will have to be preceded by the finding of a Court of competent jurisdiction that the plaintiff's assertions of unconscionability and so on are established. Whether or not such a process might give rise to a debate about the plaintiff having to return the funds he has received as a result of the settlement is not for us to say in this decision. 
No matter how one approaches the matter from a procedural point of view, however, the fact is that the settlement agreement represents a significant hurdle for plaintiff to overcome if he is to proceed. It is clear that by May 2006 he had been engaged in litigation about his disputes with ACC for some considerable time. There does not seem to be any suggestion that he was not capable of representing himself or understanding what the terms of the settlement meant when he signed it. It will be for him to bring forward persuasive evidence to convince a court (or, perhaps, this Tribunal) that despite its terms the settlement that he signed was either not intended to prevent him from bringing this claim, or that he ought not to be prevented from bringing the claim in any event. 
The plaintiff will need to give these matters careful consideration before proceeding. 
Matters could/should have been dealt with in proceedings under IPRCA 
We turn next to a point taken by the ACC in relation to s 133(5) IPRCA. Section 133(5) provides: 
“If a person has a claim under this Act, and has a right of review or appeal in relation to that claim, no court, Employment Relations Authority, Disputes Tribunal, or other body may consider or grant remedies in relation to that matter if it is covered by this Act, unless this Act otherwise provides. ”
The submission for the ACC is that the dispute resolution scheme within IPRCA should be treated as a Code which excludes resort to any other forms of litigation. The only question is whether the challenges which the plaintiff wishes to put forward in this proceeding could have been put forward in prodeedings brought by the plaintiff under IPRCA: see Ramsay v Wellington District Court [2001] NZAR 136 and Spencer v Wellington District Court & ACC (High Court, Wellington, CIV 2006-485-1601, 5 October 2007, per Simon France, J). It was further submitted that all of the points now taken could have been raised in proceedings under IPRCA, since ACC reviewers and the District Court are bound by the New Zealand Bill of Rights Act 1990 (“NZBORA”) and matters which effectivey assert a breach of s 19 of the Act can be raised in IPRCA proceedings. 
In his materials the plaintiff referred to Dean v Chief Executive of ACC [2007] NZCA 462. In that case the Court of Appeal rejected an argument that an NZBORA compensation claim was something that could have been brought under IPRCA. 
The submissions for the ACC invite us to find that the Court of Appeal's decision in Dean should be seen as a particular response to the unusual facts of that case, having more to do with the procedure that was followed than with any substantive question about discrimination. We have difficulty accepting the argument. To the contrary, the point of what the Court of Appeal said at paragraph [43] of its decision was that the District Court does not have power to award NZBORA compensation in the context of a claim brought under IPRCA. Neither the District Court nor the ACC reviewers have any power to award damages under the HRA either. Thus the reasoning of the Court of Appeal decision indicates a conclusion that any claim under the HRA in this matter is not caught by the provisions of s 133(5) IPRCA. In addition, we regard the s 133(5) issue in Spencer v Wellington District Court (supra) as having been different from that which is before us. 
We would not have been willing to strike the plaintiff's proceeding out on the basis of an application of s 133(5) IPRCA. 
The res judicata issue 
The fourth and final point taken by the ACC is that the issues raised by the claim now put forward by the plaintiff should be treated as being res judicata
Part of the difficulty of dealing with this argument is that it is not at all clear to us what the claim really is. That makes it difficult to decide whether it has already been decided either by this Tribunal, in the District Court or anywhere else. 
The ACC's submission was that “The only question of discrimination that could possibly be inferred from the plaintiff's statement is, that if the defendant were now to accept the plaintiff's entitlements as the plaintiff alleges them to be, nevertheless, his age now means that he is no longer entitled to vocational rehabilitation.” On that basis the ACC submits that the decision of this Tribunal in proceedings under HRRT 15/2006 (which we take to be a reference to the decision in Howard v Attorney-General [2006] NZHRRT 46) deals with exactly that topic and that, the issues having already been decided, the claim should be struck out. There are also suggestions that the present litigation is an attempt to re-litigate matters that have been decided by the Distrrict Court, or that the issues now raised could and should have been raised by the plaintiff in the District Court proceedings. We are invited to find that the present claim should be regarded as frivolous and vexatious. The ACC also argues that the present claim is an abuse of process in that it amounts to an attempt to re-litigate matters that have been decided in the District Court. 
The ACC's argument proceeds on the basis of the issue which it has identified. But we are unable to exclude the possibility that the claim may have been intended to raise something else, besides that which is identified by the ACC. Our inclination, therefore, is to leave any issue about possible application of the doctrine of res judicata to be re-assessed if the plaintiff elects to file a new claim (and if then necessary). 
The plaintiff's statement of claim dated 23 October 2007 is struck out. 
The foregoing order is made on the basis that the plaintiff is free to file a fresh proceeding arising out of the same events if he wishes to do so, after he has given consideration to the points made in this decision. 
We also reserve liberty to the ACC to apply for orders striking out or dismissing any new claim by the plaintiff, if it seems to the ACC that such an application is warranted if and when any new claim is filed. 
The application to strike out has succeeded and the ACC is entitled to an award of costs. We invite submissions as to quantum as follows: 
Any submissions for the ACC to be filed and served within 21 days of the date of this decision; 
Any reply by the plaintiff to be filed and served within a further 21 days. 
The issue of costs will be dealt with in the basis of those submissions. 
In case it is necessary, we leave it to the Chairperson of the Tribunal to vary the timetable set out above as he considers appropriate. 

From Accident Compensation Cases

Table of Contents