Borst v Accident Compensation Corporation - [2013] NZCA 557

IN THE COURT OF APPEAL OF NEW ZEALAND

CA144/2013
[2013] NZCA 557

BETWEEN	NOEL BORST Applicant
AND	ACCIDENT COMPENSATION CORPORATION Respondent

Hearing:	4 November 2013 (further submissions received 8 November 2013)
Court:	Harrison, Stevens and White JJ
Counsel:	P G Schmidt for Applicant D K L Tuiqereqere for Respondent
Judgment:	14 November 2013 at 11.30 am

JUDGMENT OF THE COURT

AThe application to extend the time to file the application for special leave is granted.
BThe application for special leave to appeal is dismissed.
CThere is no order for costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

Mr Borst applies for special leave to appeal pursuant to s 112(4) of the Accident Compensation Act 1982 (the 1982 Act) against a decision of Katz J delivered on 12 October 2012.[1] The application arises from Mr Borst’s attempts to establish his eligibility for compensation for permanent incapacity under s 60 of the 1982 Act. Such compensation was abolished in 1992. However, under s 368(4) of the Accident Compensation Act 2001 (the 2001 Act) those persons who were receiving compensation for a permanent incapacity before 1 April 2002 are entitled to continue to receive payments. In addition, a claimant may be entitled to such compensation if he or she can establish that an assessment of permanent incapacity was completed (i) prior to 1 October 1992, or (ii) after 1 October 1992 where a review of a decision about the assessment was lodged before 1 October 1992.[2]
[1]Borst v Accident Compensation Corporation [2012] NZHC 2657, [2012] NZAR 941. Section 391 of the Accident Compensation Act 2001 provides that part 9 of the Accident Compensation Act 1982 (which deals with appeal rights including applications for review under s 101) continues to apply to any decision made by the Corporation under the 1982 Act.
[2]See s 368(4)(b)(ii).
Following a consideration of Mr Borst’s file in mid 1987, the Accident Compensation Corporation (the Corporation) concluded that he was not entitled to any earnings related compensation or to an assessment of permanent incapacity.[3] On 11 June 1987 the Corporation wrote to Mr Borst informing him accordingly.
[3]A claim for earnings related compensation is dealt with under s 59 of the 1982 Act. The assessment of permanent incapacity is dealt with under s 60.
In January 1990, Mr Borst wrote a letter to the Minister responsible for the Corporation setting out the facts concerning his case. He now argues that that letter constituted an application for review of a decision about an assessment under s 60 of the 1982 Act so that the review is still “live” and he remains entitled to an assessment of permanent incapacity under the transitional provisions of the 2001 Act.
The Accident Compensation Appeal Authority found against Mr Borst.[4] In the High Court, Katz J found that the letter sent by Mr Borst in January 1990 could not “realistically be construed, in form or substance, as a request for a review of the 1987 decision”.[5] Accordingly, Mr Borst could…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NZCA 557
Decision Date: 14 November 2013 at 11.30 am

CaseChat Overview and Summary

The case of Borst v Accident Compensation Corporation involves a dispute over the eligibility of Mr. Noel Borst for compensation for permanent incapacity under the Accident Compensation Act 1982 and the transitional provisions of the Accident Compensation Act 2001. The case was heard in the Court of Appeal of New Zealand and involved the judges Harrison, Stevens, and White. The primary issue before the court was whether Mr. Borst's letter to the Minister in January 1990 constituted a valid application for review of a decision about an assessment of permanent incapacity under section 60 of the Accident Compensation Act 1982. If it did, then Mr. Borst would be entitled to compensation for permanent incapacity under the transitional provisions of the Accident Compensation Act 2001.

The court considered the arguments put forward by Mr. Borst's counsel, P G Schmidt, and the Accident Compensation Corporation's counsel, D K L Tuiqereqere. The court found that the January 1990 letter did not seek a review of a decision about an assessment of permanent incapacity under section 60 of the Accident Compensation Act 1982. No such assessment had been carried out, and none of the three basic complaints in the letter related to an assessment of Mr. Borst's permanent incapacity or the failure to make such an assessment. Therefore, the court held that the January 1990 letter could not meet the requirements of section 368(4)(b) of the Accident Compensation Act 2001. Additionally, the court found that the appeal was not of general or public importance, and there was no other reason why it ought to be submitted to the Court of Appeal for decision.

The court dismissed the application for special leave to appeal and granted an extension of time for the application to be filed. There was no order for costs. The decision of the Court of Appeal of New Zealand highlights the importance of meeting the requirements for a review application and the need for an appeal to be of general or public importance. The case serves as a reminder to those seeking compensation under the Accident Compensation Act 1982 and the transitional provisions of the Accident Compensation Act 2001 to carefully consider the requirements and seek legal advice if necessary.

Orders