Carter v Accident Compensation Corporation
[2016] NZHC 1140
•30 May 2016
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2015-485-602 [2016] NZHC 1140
UNDER the Accident Compensation Act 2001 IN THE MATTER OF
an appeal under section 162 of the Act
BETWEEN
JOHN HOWARD CARTER Appellant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 13 April 2016 Appearances:
Appellant in person
J B Orpin, Amicus
C J Hlavac for respondentJudgment:
30 May 2016
Reissued:
16 June 2016
RESERVED JUDGMENT OF DOBSON J
[1] Leave has been granted in this matter for a further appeal on questions of law and fact as to the obligations of the Accident Compensation Corporation (the Corporation) in categorising claims for cover, and the consequences of the Corporation allegedly failing to make a decision on a claim for cover within the required time limits.
[2] Mr Carter’s argument is that the Corporation failed to make a timely decision
on his claim so that he is deemed to have cover.
CARTER v ACCIDENT COMPENSATION CORPORATION [2016] NZHC 1140 [30 May 2016]
Factual circumstances
[3] In 1984, Mr Carter was an employee of the New Zealand Post Office. In circumstances apparently connected with the corporatisation of postal services in the mid 1980s, Mr Carter ceased to be employed by that entity. Since then, he has maintained a campaign claiming unlawful dismissal against successor entities of the New Zealand Post Office.
[4] In 1994, Mr Carter obtained a declaration from the High Court to the effect that the annulment of his employment was unlawful and that his dismissal had been wrongful.1 Because the employer had ceased to exist, reinstatement of Mr Carter’s employment was impossible and instead a declaration was made that he was entitled to damages. Mr Carter and the Crown completed a deed of discharge in settlement of claim in March 1999, which is said to have been in full and final settlement of all
matters relating directly or indirectly to his proceedings. Notwithstanding that, Mr Carter has continued to pursue his campaign against various government entities, seeking further vindication of his position as an employee of the former New Zealand Post Office.
[5] In August 2012, Mr Carter suffered a heart attack. He consulted his general practitioner, Dr Sukumaran on 11 February 2013.2 The notes of that consultation record that Mr Carter was convinced that his underlying ischaemic heart disease was a gradual process injury caused by his efforts in typing. Mr Carter was apparently adamant that the heart attack was a product of a work-related gradual process injury caused by the extensive typing involved in pursuit of his employment-related complaints. Dr Sukumaran took a different view, considering the symptoms reflected an acute myocardial infarction.
[6] Dr Sukumaran lodged an injury claim form on behalf of Mr Carter. The form
recorded the diagnosis as “acute myocardial infarction” together with a potentially inconsistent cause as claimed by Mr Carter:
1 Carter v Attorney-General HC Wellington CP781/87, 24 November 1994 at 15.
2 It appears that Mr Carter had a further heart attack in early February 2013.
[patient] says he got an ischaemic heart disease because he typed for
25 years – gradual process … Confirmed says it is gradual process injury.
[7] On 13 February 2013, the Corporation wrote to Mr Carter, acknowledging receipt of the claim form, and providing an information sheet “Assessing cover for your work-related gradual onset, disease or infection claim”. On 19 February 2013, Mr Carter completed the questionnaire that the Corporation had enclosed. He described his injury as “Coronary disease set off by OOS (typing).”
[8] On 27 February 2013, Dr Sukumaran completed the Medical practitioner cover questionnaire, which recorded the diagnosis as being acute myocardial infarction and noted Mr Carter’s opinion that it was a result of typing.
[9] On 22 March 2013, the Corporation wrote to Mr Carter advising that it was obtaining a medical opinion for his claim and advised an extension of time until
10 June 2013 at the latest. That is four months after the claim was lodged.
[10] On 11 April 2013, a specialist retained by the Corporation, Dr David Hartshorn, provided a report following an assessment of Mr Carter. His report concluded that Mr Carter’s ischaemic heart disease and subsequent myocardial infarction were most likely caused by identifiable risk factors including Mr Carter’s elevated body mass index, smoking history, elevated cholesterol and hypertension, rather than occupational risk factors.
[11] On 26 April 2013, the Corporation wrote to Mr Carter to advise of its decision to decline cover.
Challenges to the Corporation’s decision to decline cover
[12] Mr Carter initially sought a review of the Corporation’s substantive decision on his entitlement to cover. He argued that his heart disease was a work-related injury caused while performing an employment task. The review was heard on
29 October 2013. On 31 October 2013 the reviewer dismissed the application.3 The essence of the reviewer’s analysis was:4
… the only way a cardiovascular event can be covered by ACC is where it is caused by abnormal physical effort or strain while a person is performing their employment.
Mr Carter’s claim is that his event was caused by typing. That typing was, in his own words, from 29 years of an employment dispute and everything consequential to it. Therefore his own claim is that it was not caused while performing his employment. Rather, it relates to activities performed during an extended employment dispute.
[13] On his appeal in the District Court, Mr Carter (acting on his own behalf) changed tack.5 He argued that the Corporation had taken too long to decide on his claim, so that he was entitled to deemed cover under s 58 of the Accident Compensation Act 2001 (the Act).
The statutory provisions
[14] The provision most directly relevant to the manner in which the Corporation dealt with Mr Carter’s claim is s 57. It provides:
57 Steps Corporation takes to action complicated claims for cover
(1) This section applies to a claim for cover—
(a) for mental injury in the circumstances described in section
21 or 21B:
(b)
for personal injury caused by a work-related gradual process, disease, or infection:
(c)
for personal injury caused by treatment:
(d)
lodged outside the period stated in section 53.
(2)
The
Corporation must take the following steps as soon as
practicable, and no later than 2 months, after the claim is lodged:
(a) investigate the claim—
(i) at its own expense; and
3 ACC Review No 1617593. (The reviewer’s decision is dated 31 October 2014, but that must be
an error.)
4 At 3.
5 Carter v Accident Compensation Corporation [2014] NZACC 157.
(ii) to the extent reasonably necessary to enable it to take the following steps in this subsection; and
(b) either—
(i) make its decision on the claim and give notice of it under section 64; or
(ii) decide that it cannot make its decision on the claim, or any other decision, without additional information, and tell the person of the extension, which must not exceed 2 months, that will be required.
(3) The Corporation must take the following steps as soon as practicable, and no later than the expiry of the extension:
(a) make a reasonable request to the person, or decide to make a request to another person, for the additional information; and
(b) if the Corporation proposes to make a request to another person for the additional information, tell the person making the claim about the making of the request and its nature; and
(c) make its decision on the claim and give notice of it under section 64.
(4) The Corporation and the person making the claim may agree to further extensions after the extension referred to in subsection (3), and that subsection applies to any further extension, but the Corporation’s decision on the claim must be made within 9 months of the claim being lodged.
(5) If the Corporation finds that the claim is an uncomplicated claim under section 56, that section applies as if the claim were lodged on the date the Corporation made that finding.
[15] For all claims not covered by s 57, the Corporation has to proceed pursuant to s 56, which provides:
56 Steps Corporation takes to action claims for cover
(1) This section applies to a claim for cover that is not a claim described in section 57 (complicated claims).
(2) The Corporation must take the following steps as soon as practicable, and no later than 21 days, after the claim is lodged:
(a) investigate the claim—
(i) at its own expense; and
(ii) to the extent reasonably necessary to enable it to take the following steps in this subsection; and
(b) either—
(i) make its decision on the claim and give notice of it under section 64; or
(ii) decide that it cannot make its decision on the claim, or any other decision, without additional information, extend the time for making its decision, and tell the person making the claim about the extension.
(3) Except where it decides under subsection (2)(b)(ii) that it needs additional information, section 58 applies if the Corporation does not make its decision within 21 days after the claim was lodged.
(4) If subsection (2)(b)(ii) applies, the Corporation must take the following steps as soon as practicable:
(a) make a reasonable request to the person, or decide to make a request to another person, for the additional information; and
(b) if the Corporation makes a request to another person for the additional information, tell the person making the claim about the making of the request and its nature; and
(c) make its decision on the claim and give notice of it under section 64.
(5) In any case dealt with under subsection (4), the Corporation’s decision on the claim must be made within 4 months of the claim being lodged.
[16] The imperative for the Corporation to make decisions on claims within the time limits provided in these two sections is reflected in s 58, which provides:
58 Effect of failure to meet time limits
(1) When the Corporation fails to comply with a time limit under section
56 or section 57, whichever applies, the claimant is to be regarded as having a decision by the Corporation that he or she has cover for the personal injury in respect of which the claim was made.
(2) When subsection (1) applies, the Corporation must tell the person that—
(a) the time limit has expired without the Corporation having made a decision; and
(b) the effect is that the claimant has a decision that the claimant has cover; and
(c) the date of the decision is the date of the expiry of the time limit.
[17] The essence of Mr Carter’s argument in the District Court was that the Corporation incorrectly treated his claim as one coming under s 57, which the Corporation relied on to entitle it to extend the time within which it determined his claim, when in fact it was required to deal with Mr Carter’s claim under s 56. Accordingly, Mr Carter argued that because the Corporation’s decision was not made within the 21 day limit applying under s 56, s 58 was triggered and he was deemed to have cover for the personal injury in respect of which his claim was made.
[18] To understand the characteristics of claims that qualify as “complicated” for the purposes of s 57, one has to go (in Mr Carter’s case) to other provisions in the Act that define personal injury caused by a work-related gradual process (s 57(1)(b)).
[19] Section 26(2) contains a general exclusion from cover for personal injuries that are caused wholly or substantially by a gradual process disease or infection. There is an exception from that exclusion for cover if the personal injury is of a kind described in subss 20(2)(e) to (h).
[20] The categories of personal injuries that are put back into the scope of those for which cover exists relevantly include subs (2)(e):
Personal injury caused by a work-related gradual process, disease or infection suffered by the person.
[21] In addition, subs 20(2)(j) extends cover for personal injury that is a cardiovascular or cerebrovascular episode that is a personal injury suffered by the person to which s 28(3) applies.
[22] In turn, that section provides:
28 Work-related personal injury
…
(3) Work-related personal injury includes a cardiovascular or cerebrovascular episode suffered by a person, if the episode is caused by physical effort or physical strain, in performing his or her employment, that is abnormal in application or excessive in intensity for the person.
The District Court decision
[23] Judge Powell dealt succinctly with Mr Carter’s claim for deemed cover under s 58. The Judge found that the documentation presented by and on behalf of Mr Carter consistently represented that he was seeking cover for a work-related gradual process injury, which is one of the categories of complicated claims identified in s 57(1) of the Act. The Judge held that s 57 empowered the Corporation to extend the date for determination of Mr Carter’s claim by a maximum of a further two months from the date of the claim. The Judge noted that a relatively small part of the additional two months was taken up by the Corporation before it conveyed its decision.
[24] Judge Powell also dealt with the substantive merits of Mr Carter’s appeal. He excluded the prospect of an acute myocardial infarction constituting a work-related gradual process injury so as to exclude the circumstances of the claimed personal injury from those in s 20(2)(e).
[25] The Judge also found that Mr Carter could not bring himself within the terms of s 28(3) because employment was a pre-requisite to cover for a work-related personal injury as defined in that section. Mr Carter’s long-standing pursuit of a claim that he was still in an employment relationship with a successor of the New Zealand Post Office could not constitute activity that arose in the course of performing his employment.
[26] This last finding was made over Mr Carter’s protest that, if his argument for deemed cover under s 58 failed, then the balance of his appeal ought to have been adjourned until determination of another proceeding he had pending before the Employment Relations Authority. It appears that Mr Carter hoped that his other proceeding would advance his claim that an employment relationship with a successor of the New Zealand Post Office was still in existence. No reference was made to this on argument of the appeal.
[27] The District Court declined Mr Carter’s application for leave to appeal.6
6 Carter v Accident Compensation Corporation [2015] NZACC 202.
The questions on appeal
[28] Mr Carter sought special leave from the High Court. On 30 October 2015, Clifford J granted leave.7 Leave was granted in respect of the following questions:8
(a) Whether Judge Powell erred in law and in fact in deciding at paragraph [26] of his judgment that the appellant’s claim as originally filed was for a work related gradual process injury and the respondent was entitled to investigate the claim on that basis.
(b) Whether Judge Powell erred in law and in fact in failing to determine that Mr Carter had deemed cover under s 58.
[29] Paragraph [26] of Judge Powell’s decision was in the following terms:
I begin my analysis by considering whether the appellant has deemed cover for the acute myocardial infarction suffered in August 2012 and/or February
2013. Although the substantive issue in the appeal now turns on whether the appellant is able to show whether or not he comes within s 20(2)(j) of the
Act, on the facts before me the claim as originally filed was indeed for a work related gradual process injury and the respondent was entitled to investigate the claim on that basis.
[30] Judge Powell’s reasoning does not include a factual finding that the claim had been lodged for an acute or rapid onset heart attack, a characterisation that would have necessarily excluded it from the categories of claim coming within s 57(1) of the Act. The essence of the reasoning on the substantive appeal was that the only possible basis for cover was under s 20(2)(j), which in turn required s 28(3) to apply, and that required the cardiovascular episode to have been caused by physical effort or strain in performing the claimant’s employment. Mr Carter was found to be excluded from such a basis for claim because of the absence of relevant employment.
[31] However, the Judge found that the claim as originally filed was for a work- related gradual process injury. It was on that basis that the Judge found the Corporation was entitled to deal with the claim as if it fell under s 57.9
[32] Clifford J subsequently directed the Registry to appoint Mr Orpin as an amicus, and he took a full part in argument of the appeal. After hearing Mr Orpin, I
then afforded Mr Carter an opportunity to supplement the matters that had been
7 Carter v Accident Compensation Corporation [2015] NZHC 2692.
8 At [22].
9 Carter v Accident Compensation Corporation, above n 5, at [26], [28].
argued thoroughly in his interests by Mr Orpin. I am satisfied that all of the issues properly raised can be addressed as components of question (b), and I therefore consider the merits of those arguments in relation to it.
Did the Judge err in failing to determine that Mr Carter had deemed cover?
[33] Mr Orpin presented a thorough analysis of the relevant provisions of the Act, and provided a wide-ranging analysis of the possible arguments in support of Mr Carter’s claim that the Corporation had been required to decide on his claim within 21 days (s 56) rather than the longer time limits permitted under s 57.
[34] Mr Orpin’s progression through the various provisions that might apply to a decision on whether cover existed under the Act certainly demonstrated, if nothing else, the complexity of the analysis involved. This required a decision on whether a claim should be considered, either as a complicated one under s 57 or as the alternative form of claim (“uncomplicated”) under s 56. Mr Orpin’s proposition was that Mr Carter’s claim was not, as a matter of statutory definition, a complicated claim. The claim was for an injury diagnosed as acute myocardial infarction. For the purposes of s 26(3) of the Act, that would constitute a cardiovascular episode which could not be a personal injury unless, in Mr Carter’s case, it was of the type described in s 20(2)(j). That recognises as a personal injury a cardiovascular episode that comes within s 28(3). To qualify there, it needs to be a work-related personal injury that could include a cardiovascular episode caused by physical effort or physical strain performing employment that is abnormal in application or excessive in intensity for the claimant.
[35] On Mr Orpin’s analysis, if the potential basis for a claim proceeded through the sequence of provisions I have just described, then the claim falls outside the types of injury recognised as founding a complicated claim in s 57(1) of the Act. In effect, Mr Orpin’s argument was that if a claimant has suffered a cardiovascular episode caused by physical effort or physical strain in performing employment that is abnormal in application or excessive in intensity for the claimant, then it could not be a personal injury that has been caused by a work-related gradual process.
[36] Less persuasively than on other points made on behalf of Mr Carter, Mr Orpin submitted that this analysis merely followed the statutory scheme and ought to have been apparent to the Corporation from the outset, without the need to apply hindsight. Mr Orprin argued that from the time the Corporation received the original claim, or perhaps from the time it received the general practitioner’s response to the questionnaire, the Corporation was on notice that it was dealing with an uncomplicated claim, which it was required to determine within 21 days.
[37] Mr Orpin supported this analysis by arguing that the Act imposes no obligation on a claimant to correctly characterise his or her own claim and rather that the obligation is on the Corporation to correctly categorise claims on their receipt. Mr Orpin cited the decision in Rangiwhetu v Accident Compensation Corporation to the effect that the Corporation is to take a generous and unniggardly approach to interpreting claims because “… all claimants cannot be expected to know what they
are entitled to and how they must proceed if they are to receive those entitlements”.10
[38] Mr Orpin argued that there is nothing in the language of ss 56 and 57 to indicate that their application depends on the description of a claim provided by the claimant, and there is no other requirement under the Act that a claimant has to describe or specify the statutory basis for his or her claim. Arguably, there is no good reason, in terms of the statutory framework, why the timeframes in ss 56 and
57 should turn on the wording of a claim rather than its substance.
[39] I did not take Mr Hlavac to resist the proposition that the Corporation does have a statutory responsibility to correctly categorise claims received by it and cannot, for example, adhere to a claimant’s own obviously incorrect categorisation. The Corporation bears the risk of error in this regard, particularly the financial consequences provided in s 58 of the Act, of being deemed to have accepted the
claim.
10 Rangiwhetu v Accident Compensation Corporation HC Wellington CIV-2006-485-1402,
19 April 2007 at [48].
[40] The safety net for the Corporation in this regard is s 65, which entitles the Corporation to revisit a deemed decision to grant cover under s 58, subject to paying appropriate compensation in the meantime. Section 65 provides:
65 Corporation may revise decisions
(1) If the Corporation considers it made a decision in error, it may revise the decision at any time, whatever the reason for the error.
(2) The Corporation may revise a decision deemed by section 58 to have been made in respect of any claim for cover, but may not recover from the claimant any payments made by it, in respect of the claim, before the date of the revision unless the claimant has made statements or provided information to the Corporation that are, in the opinion of the Corporation, intentionally misleading.
(3) A revision may—
(a) amend the original decision; or
(b) revoke the original decision and substitute a new decision.
(4) Every amendment to a decision, and every substituted decision, is a fresh decision.
(5) Sections 19 to 23 of the Crown Entities Act 2004 do not limit this section.
[41] However, the obligation on the Corporation to categorise all claims received cannot be an unqualified one applying in all circumstances. Parliament can never have intended that a liability would be triggered to pay compensation where deemed cover arises because the Corporation missed a deadline applying to a claimant who has made a claim in perverse, obtuse or misleading terms. It is quite a different matter from relieving claimants of any obligation to correctly categorise claims made, to then cast on the Corporation an absolute obligation to identify, in every case where a claim is presented as a complicated one, that it should in fact be treated as an uncomplicated one and proceed to an adequately considered decision within 21 days.
[42] Parliament has recognised in s 57(5) the prospect that, after investigation, the Corporation might re-categorise a claim initially treated as a complicated one, if it is found to fall outside the four categories of claim identified in s 57(1). From that point, the claim is treated as an uncomplicated one with the time limit under s 56 running from the date the Corporation makes that finding. That is consistent with
Parliament recognising the prospect of the Corporation misapprehending the character of a claim when first presented, without that misapprehension having adverse consequences for the Corporation in its subsequent consideration on the alternative basis.
[43] From the outset, Mr Carter’s claim was potentially pursued on two bases, namely:
· the assessment of his general practitioner that the claim was for an acute myocardial infarction (which by definition is the antithesis of a gradual process); and
· Mr Carter’s own insistence that his claim was for a gradual process injury. (The notes of Mr Carter’s consultation with his general practitioner on 11 February 2013 include the doctor’s observation that “… I have tried to explain to him that the ischaemic heart disease is not gradual process injury due to typing but patient is insisting on putting a ACC 45 form for this”. That form relates to gradual process injuries.)
[44] The history of Mr Carter’s dealings with his general practitioner, and the dealings by both of them with the Corporation, make it abundantly clear that Mr Carter did not accept the medical advice he obtained. He was determined to claim that his heart problems were a form of personal injury that, for the purposes of cover under the Act, he attributed to stress caused by his former employment. It is safe to infer that this focus on Mr Carter’s part was influenced by his long-running determination to attribute some further responsibility to someone in some way related to his former employer. Although his motive is not relevant, the intention evident from his claim form and terms of responses to the Corporation are directly relevant to the reasonableness of the way in which the Corporation processed it.
[45] As Mr Hlavac submitted, had Mr Carter been able to establish that he had indeed developed ischaemic heart disease as a result of his employment (including the requirement that it developed in the course of that employment), then he could
have come within the definition in s 3011 and been entitled to cover for that condition. The claim would appropriately have been assessed as a complicated one. It is entirely predictable that had the Corporation rejected this prospect from the outset, they would have faced a complaint from Mr Carter that they did not consider the basis (or at least a basis) for his claim for cover. In the arrangements made with Mr Carter to be assessed by Dr Hartshorn, it was abundantly clear that the Corporation was responding to his wishes as to how he wanted his claim assessed.
[46] Mr Orpin argued that Judge Powell’s finding that the claim was originally lodged for a work-related gradual process injury was wrong. I do not accept that the Judge was wrong on this point. Mr Carter stuck to his characterisation of the claim until after the Corporation had made its decision, and continued to assert it in his argument before the Corporation’s reviewer. If important factual elements had been different, he may have made out an entitlement to cover on that basis. Mr Carter’s own contribution to the argument on the appeal included an acknowledgement that he has changed the way in which he would categorise his own claim since receiving the Corporation’s decisions.
[47] I am satisfied that in this case there was no breach by the Corporation of the obligation on it to correctly categorise claims as coming either within s 57 or s 56.
[48] An additional component of Mr Orpin’s arguments raised the prospect of a single claim containing components that were to be dealt with under s 57, and separately under s 56.
[49] If a claim is presented with separate components that are treated by the Corporation as falling respectively within ss 57 and 56, then the Corporation may be obliged to deal promptly with each component, subject to the time limits in each section. The same considerations apply to require a timely decision from the Corporation. In the same way, that obligation has to take into account the extent to which the true character of the claim being made cannot reasonably be discerned on
the material available to the Corporation.
11 Section 30 relates to personal injury caused by work-related gradual process.
[50] On all the information provided to the Corporation in this case, the primary or predominant type of claim to be considered was that for a gradual process injury, to which s 57 of the Act applied. Mr Hlavac argued that there was no point in attempting to distinguish between components of the claim to be dealt with respectively under ss 57 and 56. The Corporation had to investigate the gradual onset injury claim to be in a position to assess both that and the acute myocardial infarction claim that might otherwise have been dealt with separately under s 56. I accept the Corporation’s position on this. Where there is no utility in a partial answer to the claim (to the extent it is to be dealt with under s 56) before the Corporation has been able to make a decision on the complicated component of the claim (under s 57), then the complicated part of the determination should dictate the time limit within which it is to be made.
Additional argument: Corporation’s decision to extend time was ultra vires
[51] In Mr Orpin’s submissions, he identified an additional argument which he suggested was available to Mr Carter, and which ought to be considered by the Court on appeal. It is not an issue that came within the questions on which leave was granted, and there had been no suggestion of the point in Mr Carter’s appeal in the District Court.
[52] Mr Hlavac opposed the new point being considered, essentially because the appeal had to be confined to the grounds on which special leave had been granted, and that, in precedential terms, it was prejudicial to the Corporation to have to incur costs in preparing for and responding to additional grounds of challenge. In any event, Mr Hlavac argued that there was nothing in the point.
[53] I have considerable sympathy for the position of the Corporation. Dealing with second appeals challenging its decisions requires reasonably substantial resources. The statutory structure confines what can be argued to questions on which leave has been granted either by the District Court, or by this Court. Permitting any material broadening of the scope of second appeals within the statutory context should be exceptional, such as in circumstances where the failure to
address an additional question gives rise to a real prospect of a miscarriage of justice.12
[54] In the event that this approach confining argument to the questions on which leave has been granted is wrong, I indicate briefly the reasons why I agree with Mr Hlavac that the additional issue could not avail Mr Carter.
[55] Mr Orpin’s argument focused on the point in time from which a two month extension permitted under s 57(2)(b)(ii) would run, where the Corporation decided it required more information.13 That provision requires the Corporation, as soon as practicable after a claim is lodged and no later than two months, to decide (as one of two options open to it) that it cannot make its decision on the claim without additional information, to extend the time that will be required to make its decision,
and tell the claimant of that extension. Any such extension must not exceed two months.
[56] Mr Orpin argued that, in circumstances where the Corporation is required to make that timing decision as soon as practicable, the extension of up to two months can only apply from the date the timing decision is made, and not from the end of the standard initial period of two months. In this case, the Corporation’s decision that it required an extension of time was treated as triggering an extension of a further two months after the initial two month period had expired. Mr Orpin’s argument was that the Corporation could only lawfully consider and grant itself an extension for a maximum of two months from the date it made the decision, and that the wrong premise on which the Corporation considered granting itself a longer extension rendered its decision ultra vires. If the basis on which the Corporation granted itself an extension was unlawful, the subsequent decision fell with it and Mr Carter had the benefit of deemed cover under s 58.
[57] I would not accept that analysis of the effect of s 57(2)(b)(ii). The scheme of this part of the Act, and s 57 in particular, works better in the administrative sense,
and limits any prejudice to a claimant, if the period of extension under s 57(2)(b)
12 See, for example, O’Neill v Accident Compensation Corporation (No 2) HC Auckland
CIV-2008-404-8482, 31 March 2010 at [15].
13 Section 57 is set out at [14] above.
runs consistently from the end of the initial two month period for responding to the claim, irrespective of when the Corporation decides that it needs to obtain further information, triggering the need for an extension of time. That is an interpretation clearly open on the terms of the section and which I am satisfied reflects the Parliamentary intention. Mr Orpin’s alternative would introduce perverse pressures for the Corporation to delay communicating to a claimant the need for an extension of time, so as to gain the largest possible part of the initial two month period before the two month extension period began to run.
[58] Even if Mr Orpin’s interpretation of the statutory provision were correct, I would not accept that a misconception by the Corporation on this aspect of its powers and obligations rendered its subsequent decision to dismiss Mr Carter’s claim as ultra vires its powers. The practical position is that the Corporation’s advice that it required an extension was conveyed to Mr Carter on 22 March 2013. Two months from that date would give the Corporation until 22 May 2013, well after the decision to decline his claim was conveyed on 26 April 2013.
Outcome
[59] The outcome is accordingly that Judge Powell did not err in fact and law in any of the respects posed in the questions set out at [28] above. The practical effect is that the appeal is dismissed.
Costs
[60] The Corporation is entitled to costs which I certify for on a 2B basis. It is over to the Corporation as to whether it enforces its order or not.
Dobson J
Solicitors:
Young Hunter, Christchurch for respondent
Counsel:
J B Orpin, Wellington
Copy to: Appellant
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