Accident Compensation Corporation v Hawke

[2014] NZHC 1098

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-485-000768 [2014] NZHC 1098

UNDER

the Accident Compensation Act 1982

IN THE MATTER

of an intended appeal under section 111 of the Act

BETWEEN

ACCIDENT COMPENSATION CORPORATION

Appellant

AND

DIANE HAWKE Respondent

Hearing:	18 February 2014
Appearances:	C J Hlavac for the Appellant P G Schmidt for the Respondent
Judgment:	22 May 2014

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Thursday, 22 May 2014 at 4.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Young Hunter (Christchurch) for Appellant

Schmidt & Peart Law (Auckland) for Respondent

ACCIDENT COMPENSATION CORPORATION v HAWKE [2014] NZHC 1098 [22 May 2014]

Introduction

[1]      The Accident Compensation Corporation (ACC) appeals against a decision of the Accident Compensation Appeal Authority (Appeal Authority) dated 3 August

2012, which determined that it had jurisdiction to hear an appeal against a review of one of ACC’s decisions. ACC submits that the appeal should be heard in the District Court.   This issue depends upon whether the appeal is correctly characterised as arising under the Accident Compensation Act 1982 (the 1982 Act), or the Accident Compensation Act 2001 (the 2001 Act).  If the appeal arises under the 1982 Act, it is to be dealt with by the Appeal Authority.  If it arises under the 2001 Act, it is to be dealt with by the District Court.

Background

[2]      On  24  February  1978,  the  respondent,  Ms  Diane  Hawke,  was  in  a  car accident.  Ms Hawke was employed at the time of her accident and her injuries were covered under the Accident Compensation Act 1972 (the 1972 Act).

[3]      On 9 May 2003, Ms Hawke applied for back-dated weekly compensation. On 29 September 2005 ACC wrote to Ms Hawke advising her that they were unable to pay weekly compensation to her for the period before 5 November 1992.   The letter states:

ACC has considered all the information available and finds that you are not entitled to weekly compensation because we have been prejudiced in our ability to make a decision on weekly compensation entitlement for periods prior to 1992.  As a result, ACC is unable to pay you weekly compensation. We have paid for all incapacities from 5/11/92 to 9/2/98.

The letter included no reference to which Act the decision was made under.

[4]      Ms Hawke applied to review the decision contained in ACC’s letter dated

29 September 2005.  The reviewer treated the application as arising under the 2001

Act.  In a decision dated 3 February 2006 the reviewer noted that Ms Hawke had not established periods of incapacity that were causally related to her injury.  Even if she could establish such periods of incapacity prior to 5 November 1992, the reviewer stated that she would still have to provide evidence of income that had been derived

in a tax year, as required by s 14 of the 2001 Act.  In the end, the reviewer found that Ms Hawke’s lateness in applying for earnings related compensation had prejudiced the ACC’s  ability  to  make  a  decision  in  terms  of  s  53  of  the  2001 Act  and accordingly  dismissed  the  application  for  review.    Section  53  of  the  2001 Act provides:

(1)       A person must lodge a claim with the Corporation within the time limit specified in this section.

(2)       The Corporation must not decline a claim lodged after the time limit specified in this section on the ground that the claim was lodged late, unless the claim's lateness prejudices the Corporation in its ability to make decisions.

(3)      A person must lodge a claim under section 48,—

(a)      in the case of a claim for cover, within 12 months after the date on which he or she suffers the personal injury; or

(b)      in the case of a claim for an entitlement, within 12 months after the date on which the need for the entitlement arose.

[5]      The decision also stated that all parties had the right of appeal to the District Court.  Ms Hawke did in fact file an appeal in the District Court on 8 February 2006, but withdrew it on 10 April 2007.

[6]      On 14 March 2012, almost five years after withdrawing the appeal which she had filed in the District Court, Ms Hawke applied to the Appeal Authority to hear an appeal against the reviewer’s decision, on the basis that the review should have been heard under the 1982 Act as weekly compensation is governed by that Act.   She submitted that the review was heard under the wrong Act, and that the initial appeal filed on 8 February 2006 was filed in the wrong jurisdiction.  On 3 July 2012, ACC objected to the jurisdiction of the Authority to hear the appeal.

[7]      On 3 August 2012, the Appeal Authority held that the review should have been heard under Part 9 of the 1982 Act, and it therefore had jurisdiction to hear the appeal rather than the District Court.  ACC had submitted that the decision in the present case was made pursuant to s 53 of the 2001 Act, and therefore Part 9 of the

1982 Act did not apply, as under s 391 of the 2001 Act, Part 9 of the 1982 Act only applies to decisions made under the 1972 or 1982 Acts.  ACC had argued that the

purpose of the transitional provisions was to preserve Part 9 of the 1982 Act for outstanding reviews or appeals brought from decisions made by ACC while the 1982

Act was in force.

[8]      The Appeal Authority stated:

[45]      I  am  not  able  to  accept  Mr  Tui’s  submission  that  if,  when  an application is made for backdated compensation based on an injury covered under the 1982 Act, the Corporation applies the provisions of the 2001 Act to assess the application and gives review rights accordingly, this brings the decision outside the ambit of s 391(1)(b), as the 2001 Act is the Act under which the decision is made, and the 1982 Act is the one that is applied.

[46]     By virtue of s 363(3) of the 2001 Act, an application for earnings related compensation must be assessed under the 1972 or 1982 Acts as applicable, and as such, inevitably, the decision is made under either of those Acts, as applied by the 2001 Act.

[47]      The interpretation and application of s 391(1)(b) proposed by Mr Tui, not only reverses the wording of the subsection, it renders it completely irrelevant,  as  by  definition,  all  decisions  relating  to  a  repealed Act  are technically made under the repealing Act if there are available transitional provisions.

[9]      The Appeal Authority commented that on 12 March 2010, it had issued a practice note concerning jurisdiction of the Authority to hear and determine appeals against a decision of ACC made under the 1972 or 1982 Acts as applied by the 2001

Act, irrespective of whether the decision was made before, or after, the 2001 Act came into force.  In particular, the practice note states:

All notices of appeal against decisions made by the Corporation under the

1972 Act or the 1982 Act as applied by the 2001 Act, are to be filed under

Part 9 of the 1982 Act and served on the Corporation at the same time.

[10]     ACC applied for leave to appeal to this Court.  On 15 April 2013, the Appeal Authority dismissed ACC’s application for leave to appeal.  The Appeal Authority said that the ability to decline a claim for lateness under s 53 of the 2001 Act could only apply to a claim in respect of injury that occurred after 1 April 2002.   The Appeal Authority held that s 98(2) of the 1982 Act provided the only discretion to decline an application on account of prejudice.   Section 98(2) of the 1982 Act provides:

98       Limitation of time for making claims

…

(2)       A failure to forward any such claim within the time specified in subsection (1) of this section shall be no bar to the claim if the Corporation is of the opinion that it has not been prejudiced in the determination of the case by the failure, whether in the making of inquiries or otherwise, or that the failure was occasioned by mistake of fact, or by mistake of any matter of law other than the provisions of this section, or by any other reasonable cause.

[11]     Section 53 of the 2001 Act could not apply because it could not have been Parliament’s intention that ACC was able to apply s 53 to consider claims for back- dated compensation under the 1972 and 1982 Acts, when every application made after the repeal of the 1982 Act would inevitably be more than 12 months out of time and would fail.   The fact that ACC chose to apply s 53 of the 2001 Act does not mean that s 53 must therefore apply.

[12]     On 12 November 2013, Brewer J granted special leave to appeal against the

Appeal Authority’s decision on jurisdiction, commenting:1

There is certainly an issue of law.  At the risk of over-simplification, it is whether  a  decision  made  under  s  53  of  the  2001  Act  based  on  a determination of prejudice is a substantive decision, in which case appellate jurisdiction vests in the Authority, or a procedural decision in which case appellate jurisdiction vests in the District Court.

In my view the resolution of this issue is not self-evident.  The interpretation argued for by the respondent is clearly correct if a merits-based decision has been made.  The respondent’s argument that s 391(4) specifically excludes Part 5 from applying if the decision made is one made under the previous legislation  must  be  correct.    But  that  does  not  resolve  the  substantive decision  versus  procedural  decision  argument.     The  appellant  has  a legitimate argument that s 53 is part of a procedure, and gives it power to refuse compensation under the 2001 Act not on the merits but because of prejudice.

Statutory provisions

[13]     This appeal concerns the interplay of a number of sections from the 2001 Act. I set out the relevant sections here to give context to the submissions of the appellant

and respondent.  Section 8 defines cover:

1      Accident Compensation Corporation v Hawke [2013] NZHC 2982.

8        Cover

(1)       When this Act says a claimant has cover, it means that the claimant has cover for a personal injury—

…

(b)      under … Part 11, for a personal injury suffered before [1

April 2002].

(2)       When this Act says that an injury is covered by this Act, it means that the injury is a personal injury for which a claimant has cover.

[14]     Weekly compensation is an “entitlement” pursuant to s 69.

[15]     Section 351 states:

351     References to former Acts

A former Act, or a section in a former Act, applied by or under any of sections 352 to 400, applies as if the Act or section had not been repealed.

[16]     The purpose of Part 11, the transitional provisions, is as follows:

352     Purpose of this Part

The purpose of this Part is to set out—

(a)       how the Corporation is to determine under this Act whether or not a person has cover for a personal injury suffered before 1 April 2002, which may involve applying a former Act:

(b)      the entitlements that the Corporation is required to provide under

Part 4, this Part, and Schedule 1 for personal injury suffered before 1

April 2002 if such cover has been accepted:

(c)       transitional provisions relating to reviews and appeals arising from decisions under the former Acts:

…

[17]     Section 354 states:

354     Processing of claims

Part 3 applies to all claims received on or after 1 April 2002 for cover and entitlements in respect of personal injury suffered before that date.

[18]     Part 3 includes s 53 which states:

53       Time for making claim

(1)       A person must lodge a claim with the Corporation within the time limit specified in this section.

(2)       The Corporation must not decline a claim lodged after the time limit specified in this section on the ground that the claim was lodged late, unless the claim's lateness prejudices the Corporation in its ability to make decisions.

(3)      A person must lodge a claim under section 48,—

…

(b)      in the case of a claim for an entitlement, within 12 months after the date on which the need for the entitlement arose.

(4)       Despite subsection (3), if a claim is for a treatment injury, a person must lodge the claim under section 48,—

…

(b)      in the case of a claim for an entitlement, within 12 months after the later of—

(i)       the date on which the need for the entitlement arose;

or

(ii)      if the need for entitlement arose before the injury was diagnosed as being a treatment injury, and a claim for cover for that injury has been lodged with the Corporation, the date on which the Corporation accepted the claim for cover.

[19]     Section 355 is relevant to Ms Hawke:

355     Claims for cover accepted under former acts

(1)      A person who has had a claim for cover accepted before 1 April

2002 for personal injury covered by the former Acts continues to have cover, and this Part applies accordingly.

(2)      Subsection (1) does not apply if it is determined on or after 1 April

2002 that the person did not suffer personal injury covered by the former Acts.

[20]     I mention s 360 in passing to say that it does not apply, as Ms Hawke’s claim

for cover was lodged before 1 April 2002.

[21]     Section 363 is also relevant:

363     Application of sections 364 to 387

(1)       Sections  364  to  380  provide  for  entitlements  for  a  person  who, having suffered personal injury before 1 April 2002, has cover accepted under any of sections 355 to 360.

…

(3)       The provision of entitlements arising from cover accepted under any of sections 355 to 360 is subject to Part 4 and Schedule 1, unless the effect of any of sections 364 to 391 is to the contrary.

[22]     Section 391 is important:

391     Review and appeal proceedings for decisions under former Acts

(1)       Part 9 of the Accident Compensation Act 1982 continues in force in order to apply to any decision made by the Corporation—

(a)      under the Accident Compensation Act 1972 or the Accident

Compensation Act 1982; or

(b)      under either of those Acts, as applied by section 453 of the

Accident Insurance Act 1998 or as applied by this Act.

(2)       Part 6 of the Accident Rehabilitation and Compensation Insurance Act 1992 continues in force in order to apply to an application for a review or an appeal about a decision made by the Corporation, if—

(a)      the application was made or the appeal was filed before 1

July 1999; and

(b)      subsection (1) does not apply.

(3)       Part 6 of the Accident Insurance Act 1998 continues in force in order to apply to an application for review or an appeal about a decision made by the Corporation, if—

(a)      the application was made or the appeal was filed before 1

April 2002; and

(b)      subsections (1) and (2) do not apply.

(3A)     Subsection   (3)   is   subject   to   section   4(2)   of   the   Accident

Compensation Amendment Act 2003.

(4)       Part 5 of this Act applies to any decision made by the Corporation under this Part, except a decision referred to in subsection (1), subsection (2), or subsection (3).

[23]     The application of s 391 requires reference to the definition of “decision” in

s 6.

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:

…

Submissions for appellant

Jurisdiction

[24]     The appellant submits that the key issue is whether the ACC’s decision of

29 September 2005 was made under the 1972 Act and/or 1982 Act, and therefore subject to an appeal to the Appeal Authority, or was the decision made under the

2001 Act, and therefore subject to appeal to the District Court.  The underlying and fundamental issue is whether the provisions in the 2001 Act or in the 1982 Act should apply in respect of the procedure for, and time for, making a claim for an entitlement arising out of a covered injury.  The question of which appeal body – the Appeal Authority or the District Court – should hear the appeal, really flows from that consideration.

[25]     Section 355 of the 2001 Act provides that a person who has had a claim for cover accepted before 1 April 2002 continues to have cover and Part 11 of the 2001

Act applies accordingly.  Section 363(1) of the 2001 Act provides that ss 364-380 of the 2001 Act provide for entitlements for a person who, having suffered personal injury before 1 April 2002, has cover accepted under any of ss 355 to 360.   The appellant  submits  that  prima  facie  Ms  Hawke,  being  a  person  who  had  cover accepted prior to 1 April 2002, is eligible for the entitlements set out in ss 364 to

380.  Sections 365-371 provide for weekly compensation.

[26]     However, the appellant submits that ss 365-371 are subject to s 354, which provides that Part 3 of the 2001 Act applies to claims for cover and entitlements

received after 1 April 2002 for injuries suffered before that date.   Part 3 contains provisions relating to the procedure for making a claim.  Section 53 sets out the time within which a claimant must make a claim.   ACC can refuse a late claim if the claim’s lateness prejudices ACC in its ability to make decisions.

[27]     The appellant submits the decision by ACC under s 53 declining her claim because it was lodged late, can only be a decision made under the 2001 Act.   By virtue of s 354, s 53 must be complied with in respect of any claim for entitlements under the previous Acts.   Therefore, s 391(1),(2) and (3) do not apply.     Section

391(4) applies, meaning that Part 5 of the 2001 Act applies, and any appeal against a review decision must be made in the District Court.

[28]     The  appellant  submits  that  a  decision  made  under  s  53  is  a  procedural decision because the fundamental basis for declining a claim based on the section is that the claim has been lodged outside of the required 12 month period, a procedural rather than a substantive matter.  However, ACC cannot decline the claim on grounds of lateness unless it can show that it has been prejudiced by the delay and its ability to make a substantive decision about the claim.  Therefore, the effect of a decision under s 53 is a refusal to consider a claim because it has been lodged late and ACC has been prejudiced by that lateness.  It was a procedural decision of ACC, declining to make a substantive decision.

[29]     This means the proper forum for the appeal is the District Court and the Appeal Authority did not have jurisdiction.  The District Court will have to decide whether ACC was justified in its decision, that is, did the delay in filing the claim cause sufficient prejudice to ACC?   If the District Court refers the matter back to ACC to make a substantive decision, that decision will be made under the 1982 Act, and subject to the provisions of that Act, including a right of appeal to the Appeal Authority.

Ability to appeal decision as to jurisdiction

[30]     Section 111 of the 1982 Act provides that a party may appeal to the High Court against “any order or decision of the Appeal Authority, with leave of the Authority”.    Part  20  of  the High  Court  Rules  applies  to  such  an  appeal.    The

procedure in rr 20.1-29.21 applies to appeals in relation to a “decision”, defined by r 20.2  as  “decision  includes  a  finding,  order,  or  judgment  made  by  a  decision- maker”.  The appellant submits that s 111 of the 1982 Act and the High Court Rules envisage the right to bring an appeal against not only a substantive decision, but also an interlocutory order.  The issue in this case is appropriate to form the basis of an appeal, as it concerns not only which appellate body should hear the appeal, but effectively, which legislation should apply in respect of ACC’s decision.

Respondent’s submissions

Jurisdiction

[31]     The respondent submits that the transitional provisions in Part 11 of the 2001

Act apply to both prior decisions of ACC and new decisions issued after 1 July 2001, if these require the application of previous legislation.  Section 351, which states that “a former Act, or a section in a former Act, applied by or under any of sections 352-

400, applies as if the Act or section had not been repealed”, means that when making decisions, the prior legislation is deemed to be in force as if it had not been repealed.

[32]     The respondent submits that s 362 applies to Ms Hawke – if she would have been entitled to compensation under ss 76 or 425 of the Accident Insurance Act

1998, immediately before the 2001 Act came into force, and would have continued to be entitled had the 1998 Act not been repealed, pursuant to s 362(2), she continues to be entitled to compensation under whichever sections apply to her.  This means that the claims process in Part 3 of the 2001 Act does not apply, as ACC must apply the legislation which was in force at the time, which is deemed to remain in force.

[33]     Section  391  governs  what  happens  if  a  dispute  arises  regarding  the application   of   previous   legislation   governing   cover   and   entitlements.      The respondent submits that the jurisdiction issue has already been dealt with in Accident Compensation Corporation v Langhorne2  and that the principle identified by the Court in that case has general application.  ACC appealed the decision of the Appeal

Authority to the High Court, arguing the jurisdiction of the Appeal Authority to hear

2      Accident Compensation Corporation v Langhorne HC Auckland CIV-2001-404-415, 12 October

2011.

the matter, among other issues.  In relation to the jurisdiction issue, the parties agreed that the Appeal Authority had jurisdiction to hear the dispute. The Court recorded:

Before the Appeal Authority, the parties to the present appeal were agreed that  the  effect  of  s  391(1)  and  (4)  of  the  2001 Act  was  to  require  the decisions made under the 1972 and 1982 Acts, as applied by the 2001 Act, are to be determined in accordance with Part 9 of the 1982 Act…

Ms Bedford … is concerned that the Corporation appears not to have given effect to the ruling of the Appeal Authority since the substantive decision was given last year, and asks this Court to confirm the correctness of the Appeal Authority’s decision.

Mr Barnett raises no objection, and confirms that the Corporation accepts the correctness of the Appeal Authority’s determination on the point, based as it was upon the agreement of counsel who appeared before him …

[34]     The respondent also submits that ACC’s approach is contrary to existing

Appeal Authority case law.

[35]     The respondent submits that the decision not to pay weekly compensation for any periods before 1992 was a “decision” for the purposes of the s 6 statutory definition of “decision”.  As it was a decision for the purposes of s 6, it attracts the review and appeal rights which are governed by s 391.  Reading ss 391(1) and (4) together, shows that decisions about matters under the 1972 or 1982 Acts, whether made under previous legislation or the 2001 Act, have a review and appeal process as set out in Part 9 of the 1982 Act.  The 2001 Act review process does not apply to decisions made under the 1972 or 1982 Acts.

[36]     The respondent submits that all first instance decisions, whether made while the previous legislation was in force or under any subsequent Act, carry the review and appeal process associated with the legislation that applied to the decision.  It is apparent from s 391(2), that that subsection can only refer to decisions made by ACC after repeal of the 1972 and 1982 Acts.  These decisions require application of the older legislation.

[37]     The respondent also submits that this appeal presents a public policy issue, because if ACC, when exercising its power under s 53, can issue decisions that are not reviewable “in the normal fashion” then a dual review and appeal process will exist. The model proposed by the appellant involves seven steps:

(a)       the claimant files a claim outside the 12 month time frame;

(b)an initial decision rejecting the claim on the basis of prejudice  is issued;

(c)       a review hearing is held, but the reviewer cannot determine the merits;

(d)an  appeal  to  the  District  Court  will  occur,  but  the  District  Court cannot determine the merits;

(e)       if the appeal is successful in finding that prejudice was not fatal to the claim, ACC will issue another decision considering substance;

(f)       if ACC again declines the claim, a second review on the merits will be held under the 1982 Act;  and

(g)      if the review is unsuccessful there will be a final appeal to the Appeal

Authority.

Ability to appeal decision as to jurisdiction

[38]     The respondent submits that if ACC’s assertion that all interim decisions or orders of the Appeal Authority can be appealed is accepted, there is the risk of prejudice and extra cost to claimants while that process runs its course.  The delays to the substantive hearing make for an expensive process which unfairly advantages ACC.

Discussion

Can the interlocutory protest to jurisdiction be appealed?

[39]     In Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue3  the appellants appealed to the Court of Appeal against a decision about the order in

which interlocutory applications should be heard in the High Court.  The Court of

3      Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue [2013] NZCA 164, (2013)

26 NZTL 21-017 (CA).

Appeal deferred the hearing of the appeal.  The appellant had applied for an order that the judgment in Accent Management Ltd v Commissioner of Inland Revenue4 be set  aside  on  the  ground  of  bias.    The  Commissioner  responded  by  filing  an appearance under protest to jurisdiction and application for strike-out, arguing that the High Court had no jurisdiction to set aside the judgment.   In the High Court, Justice Katz decided that the Commissioner’s application should be heard first.5

[40]     The  Court  of  Appeal  deferred  the  hearing  of  the  appeal  citing  Reid  v Attorney-General.6   There is a discretion to decline to hear an interlocutory appeal in advance of a substantive hearing in a lower court:7

The discretion can be exercised if this Court decides the issues on appeal may be overtaken by the substantive hearing or that the appellant is unlikely to be prejudiced by the postponement.

[41]     However,  following  Reid,  where  the  interlocutory  decision  which  is  the subject of appeal would be dispositive of the case, the Court will usually proceed to hear and determine it before the substantive issue is addressed in the lower court. The Court of Appeal considered that the decision as to the order the interlocutory matters would be heard was not dispositive in any substantive or practical way.

[42]     Here, the decision as to jurisdiction may be dispositive of the case as if I find that  the  District  Court  has  jurisdiction,  that  means  the  2001 Act  was  correctly applied.   It is therefore appropriate that this appeal against interlocutory protest to jurisdiction be determined.  I agree with ACC’s submission that s 111 of the 1982

Act and the High Court Rules envisage the right to bring an appeal against an interlocutory order made by the Authority.

Who has jurisdiction?

[43]     As Brewer J stated, the Appeal Authority’s practice note is a “distraction”.   It

dictates that all appeals from decisions made under the 1972 Act or 1982 Act are to

4      Accent Management Ltd v Commissioner of Inland Revenue [2013] NZCA 155, [2013] 3 NZLR

374.

5      Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue (2013) 26 NZTC 21-032 (HC).

6      Reid v Attorney-General [2012] NZCA 174.

7 At [10].

be heard under Part 9 of the 1982 Act.  This does not answer the question of which Act the decision in this case was made under.  ACC v Langhorne is not an answer to the question either.   The parties were in agreement that the Appeal Authority had jurisdiction to hear appeals against decisions made under the 1972 and 1982 Acts. First, such agreement is not binding on me and, secondly, the question still remains as to which Act the decision in this case was made under.

[44]     There is an argument available for Ms Hawke that s 354 only applies to claims for “cover and entitlements” received after 1 April 2002, and s 354 therefore does not apply to her as she has only applied for an entitlement within her existing cover.   However, to read s 354 in this way would be to artificially constrain the legislative statement that Part 3 of the 2001 Act is to apply to the processing of claims.  ACC submits that ss 354 and 355 are capable of applying at the same time. This must be correct.  Section 354 ensures that the processing of claims received in relation to injuries that occurred before 1 April 2002 is carried out under Part 3 of the

2001 Act.   I am unable to accept the submission on behalf of Ms Hawke or the Appeal Authority’s finding that the claims process in Part 3 does not apply.   The respondent’s interpretation of s 351 ignores the words “or section in a former Act”. The Appeal Authority’s finding ignores the application of s 354.

[45]     Section 355 then applies Part 11 in Ms Hawke’s circumstances, as the claim

for weekly compensation is part of Ms Hawke’s “claim for cover accepted before

1 April 2002” and her application for backdated compensation is for an entitlement she would have had as part of that cover, subject to the procedural limits set by Part

3 as applied by s 354.

[46]     Section 363 applies meaning that ss 364 to 380 apply.  Under this analysis, s

365 would then be relevant:

365     Weekly compensation under Accident Insurance Act 1998

(1)      This section applies to a person who,—

(a)      immediately   before   1   April   2002,   was   entitled   to compensation specified in subsection (2); and

(b)       on and after 1 April 2002, would have continued to be so entitled had the Accident Insurance Act 1998 not been repealed.

(2)      The compensation is weekly compensation—

(a)       based on weekly earnings calculated under section 287 or clauses 7 to 22 of Schedule 1 of the Accident Insurance Act

1998; or

(b)      paid at an agreed rate under section 302C of that Act; or

(c)      continued under section 428 or section 429 of that Act.

(3)       On and after 1 April 2002, the compensation under subsection (2) continues to be payable at the rate payable as if it were calculated under this Act.

(4)       However, the person's continued eligibility for weekly compensation and adjustments to the rate at which it is paid are subject to this Act.

(5)       Despite subclause (4), clause 42 of Schedule 1 does not apply to the person if he or she is receiving weekly compensation calculated under—

(a)      the Accident Compensation Act 1972; or

(b)      the Accident Compensation Act 1982.

[47]     Because Ms Hawke’s injury occurred in 1978, reference is needed to Part 13

of the 1998 Act (the transitional provisions).  Section 429 of the 1998 Act states:

429     Weekly compensation due under 1972 and 1982 Acts

(1)      This section applies to a person who, –

(a)      immediately  before  1  July  1999,  was  entitled  to compensation under s 138(1) of the Accident Rehabilitation Compensation Insurance Act 1992; and

(b)       on  or  after 1 July 1999, would have  continued to be  so entitled.

(2)       On or after 1 July 1999 such a person continues to be entitled to compensation under that subsection.

[48]     Section 138 of the 1992 Act states:

138     Weekly compensation

(1)       Where any person is, immediately before the 1st day of July 1992 in receipt of or would have been entitled to be in receipt of compensation calculated under any of the provisions of ss 113, 114,

116, 117 and 118 of the Accident Compensation Act 1972 or of ss

59,   60,   …   of   the   Accident   Compensation   Act   1992,   that

compensation shall contine to be payable or be paid as if it had been

calculated under this Act …

[49]     Section 59 of the 1982 Act provides for earnings related compensation after the first week for temporary loss of earning capacity.

[50]     Section 113 of the 1972 Act provides for earnings related compensation after the first week of incapacity.  Had Ms Hawke applied at the time of her injury, her cover would have been assessed under this section.   Section 149 of the 1972 Act, brought into force on 1 April 1974, provides that lateness of a claim shall be no bar to a claim and:

… if the Commission is of the opinion that it has not been prejudiced in the determination of the case by the failure, whether in the making of inquiries or otherwise, or that the failure was occasioned by mistake of fact, or by mistake of any matter of law other than the provisions of this section, or by any other reasonable cause.

[51]     It is artificial to say that a decision under s 365 is under the 2001 Act. Because of the interplay of statutory provisions, it must be a decision under the 1972

Act as s 365 of the 2001 Act applies if the 1998 Act would have applied had it not been repealed, and the 1998 Act would have applied if s 138 of the 1992 Act would have applied had it not been repealed, and the 1992 Act would have applied if Ms Hawke would have been entitled to compensation under the 1982 or 1972 Act.  A decision cannot be made as to entitlement until the relevant provisions of the 1972

Act are applied.  It is therefore a decision made under the s 1972 Act and s 391(1)(a) of the 2001 Act applies.  The Appeal Authority has jurisdiction when a decision is made under s 363.

[52]     However,  the  decision  in  the  present  case  was  not  made  under  s  363. Pursuant to s 354, Part 3 of the 2001 Act applies.  Part 3 includes s 48:

48       Person to lodge claim for cover and entitlement

A person who wishes to claim under this Act must lodge a claim with the

Corporation for –

(a)       Cover for his or her personal injury;

(b)      Cover, and a specified entitlement, for his or her personal injury; or

(c)       A specified  entitlement  for  his  or  her  personal  injury,  once  the Corporation  has  accepted  the  person  has  cover  for  the  personal injury.

[53]     Ms Hawke’s application for backdated weekly compensation falls under s

48(c) as it is a claim for an entitlement, ACC having accepted that Ms Hawke is covered for her injuries.

[54]     Part 3 also includes s 53, allowing ACC to decline a claim on the ground of lateness if the claim’s lateness prejudices ACC’s ability to make decisions, as happened here.  Because an applicant in Ms Hawke’s position will always be at least

12 months late, it will be a “complicated claim” under s 57(1)(d) and the s 57 process will apply with specific time limits for ACC to meet in investigating the claim.  Under s 58, if ACC fails to meet the time limits, the claimant is regarded as having a decision by ACC that he or she has cover for the personal injury in respect of which the claim was made.  Pursuant to s 63, ACC must tell a claimant about his or her review rights.  These are the review rights under Part 5.  Under s 134(1)(a) a claimant may apply for a review of any of ACC’s decisions on the claim.  How the review is to be conducted is covered by ss 140 to 145.  A claimant may then appeal the review decision to the District Court under s 149.

[55]     The effect of s 354 is to remove us from Part 11.  The District Court is the correct appellate location for the reviewer’s decision where ACC’s decision was made under s 53 as in the present case.  That is the result of an application of the plain words of the Act.  For the purposes of s 391, it cannot be said that a decision  to decline a claim due to prejudice caused by its lateness is a decision made under the

1982 Act or the 1972 Act.  Section 391(4) applies as it is a “decision made by the Corporation under this part” by virtue of s 354 applying Part 3, and Part 5 therefore applies.

[56]     I accept Ms Hawke’s argument that this results in a complex and drawn out procedure for people in the same position as Ms Hawke.   The Appeal Authority having jurisdiction, as it would in Ms Hawke’s case but for the application, is the desirable outcome.  Yet it is not the correct outcome, ascertaining the meaning of the

text of the Act and in the light of its purpose.  The purpose of Part 11 is to set out “transitional provisions relating to reviews and appeals arising from decisions under the former Acts”.  In cases of the present type, it is open to ACC to make a decision about an application for an entitlement, the right to the entitlement arising under former Acts, without ever applying those former Acts and without ever actually making a “decision” under those Acts.  Parliament must be taken as having intended that outcome through the inclusion of s 354 which applies Part 3 of the 2001 Act to such situations.  I do not agree with the Appeal Authority’s finding that this deprives s 391 of any effect.   Section 391 continues to have relevance as once a claimant passes the procedural hurdles in Part 3, any substantive decision will be made under the 1972 or 1982 Acts.  Section 391(1) will then apply.

[57]     A decision to decline a claim on the ground of lateness prejudicing ACC’s ability to make a decision, is “a decision whether or not the Corporation will provide any entitlements to the claimant”.8   It is a procedural decision under the 2001 Act.

Decision

[58]     The decision was made under s 53 of the 2001 Act.  The District Court has jurisdiction to hear the appeal, not the Appeal Authority.  If the parties are unable to

agree on costs, they are requested to file memoranda by 31 May 2014.

Woolford J

8      Accident Compensation Act 2001, s 6(c).