Buis v Accident Compensation Corporation - [2022] NZHC 1043

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2087

[2022] NZHC 1043

UNDER the Accident Compensation Act 2001

IN THE MATTER OF

an application for leave to appeal s 162 Accident Compensation Act 2001

BETWEEN

MICHAEL OWEN BUIS

Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 23 February 2022

Counsel:
Appearances:

IG Hunt for the Respondent

MO Buis, Applicant in person

Judgment:

13 May 2022

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 13 May 2022 at 2.00pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date…………..

Solicitors: Young Hunter, Christchurch (I Hunt)

To: Accident Compensation Corporation, Wellington (R Wanigasekera) And to: M Buis, Auckland

BUIS v ACC [2022] NZHC 1043 [13 May 2022]

Introduction and summary

[1] Mr Buis applies for special leave to appeal to this Court on a question of law against a decision of Judge A A Sinclair in the Auckland District Court on 18 May 2020.1

[2] On 28 September 2021, Judge D Clark declined Mr Buis’ application for leave to appeal from Judge Sinclair’s decision to this Court, hence Mr Buis’ application to this Court for special leave.2

[3] By way of background, in July 1976, Mr Buis suffered an epidural infection which resulted in T9 paraplegia. At that time, Mr Buis was employed by the Royal New Zealand Navy (RNZN). In January 1980, the respondent (the Corporation) granted cover to Mr Buis on the basis his condition was as a result of medical misadventure.

[4] There then followed many years of discussion and debate between Mr Buis and the Corporation over the quantum of his cover, arrears payments and interest on arrears payments. Ultimately, Mr Buis was satisfied that the Corporation had correctly calculated and paid his weekly compensation by way of decisions and arrears payments made in December 2006.

[5] In January and February 2007, the Corporation issued decisions about and made payments of interest on the December 2006 weekly compensation arrears payments.3 The Corporation recalculated the total amount of interest payable to Mr Buis as $118,620.27, which covered the period 13 July 1992 to the date of the payment of the weekly compensation arrears. The reason for the 13 July 1992 “start date” for the payment of interest was that that was the date the Corporation accepted it had “all information necessary” to (correctly) calculate Mr Buis’ weekly compensation entitlement (having “all information necessary” being the statutory trigger for the payment of interest).

1      Buis v Accident Compensation Corporation [2020] NZACC 46 [Decision of Judge Sinclair].
2      Buis v Accident Compensation Corporation [2021] NZACC 146 [Decision of Judge Clark].
3      For ease of reference, I will refer to these as the “2007 interest decisions”.

[6] There matters rested for some ten years. In April 2017, Mr Buis contacted the Corporation setting out his view why, on a proper approach to the relevant statutory provisions, he was entitled to interest on the weekly compensation arrears payment for…

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: [2022] NZHC 1043
Decision Date: 13 May 2022

CaseChat Overview and Summary

Michael Buis has applied for special leave to appeal to this Court a decision of Judge A A Sinclair in the Auckland District Court on 18 May 2020. The key issue arising on Mr Buis' application for special leave to appeal is the proper characterisation of the 2007 interest decisions. The nature of those decisions determines which statutory scheme is to be applied when calculating Mr Buis' interest entitlement. The competing positions may be summarised as follows:(a)Mr Buis says that the 2007 interest decisions revised an earlier interest decision or decisions, thereby engaging s 390 of the Accident Compensation Act 2001 (the 2001 Act). Section 390 empowers the Corporation to revise earlier decisions that were made in error, and provides that when carrying out such a revision, the law applying at the time the original decision was made is to apply. Mr Buis says that as a result, s 72 of the Accident Rehabilitation and Compensation Insurance Act 1992 (the 1992 Act), in its original form, applies to his entitlement to interest. Section 72 of the 1992 Act as enacted does not contain the 1 July 1992 “backstop” on interest referred to at [7] above.(b)The Corporation on the other hand says that the 2007 interest decisions were "fresh" or "new" interest decisions, and therefore s 371 of the 2001 Act applies. Pursuant to that provision, s 72 of the 1992 Act (which was repealed as of 1 July 1999) remains in force, but in a modified form, under which interest on weekly compensation arrears payments is not payable for periods prior to 1 July 1992. The Corporation's submission is that Judge Sinclair's conclusion that s 371 of the 2001 Act applies to the 2007 interest decisions, and thus that interest cannot be paid for periods prior to 1 July 1992, is correct. The Corporation further submits that even if the decisions should have been made prior to 1992, decisions such as Kearney, Robinson and McLean, where decisions in relation to weekly compensation had in fact been made prior to 1992, are of no assistance to Mr Buis, as in each of those cases the interest entitlement still ran only from 1 July 1992. In this Court, Mr Buis relied on s 390 of the 2001 Act, arguing that the 2007 interest decisions were not new decisions, but revisions of earlier interest decisions. However, the statutory provisions and authorities do not support Mr Buis' approach. A person's entitlement to weekly compensation arrears payments and interest on those payments are separate matters. Under the statutory provisions, there is no express "backstop" for the payment of weekly compensation arrears as there is with the payment of interest (as a result of the modified s 72). In terms of the authorities, those referred to earlier in this judgment highlight the distinction between the payment of weekly compensation arrears and interest payable on those arrears. For example, in Robinson, weekly compensation backdated to 1986 was paid, but interest on that payment accrued only as of 1 July 1992. Similarly, in Kearney, weekly compensation arrears backdated to 1991 were paid, though interest on that arrears payment was only paid for the period from 1 July 1992 onwards. The application for special leave to appeal is declined.

Orders