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Cullen v Accident Compensation Corporation

Cullen v Accident Compensation Corporation

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA582/2013
[2014] NZCA 94

BETWEEN	TREVOR CULLEN Applicant
AND	ACCIDENT COMPENSATION CORPORATION Respondent

Hearing:	17 March 2014
Court:	Stevens, White and French JJ
Counsel:	P G Schmidt for Applicant D K L Tuiqereqere for Respondent
Judgment:	26 March 2014 at 10.30 am

JUDGMENT OF THE COURT

The application for special leave to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by White J)

The applicant, Mr Cullen, seeks special leave to appeal to this Court on the following question:
Is the [Accident Compensation] Corporation required to pay interest on the whole amount of retained weekly compensation [to which the applicant was entitled] notwithstanding any repayment to WINZ of income support benefit paid to the [applicant]?
The question arises because from October 1988 to 2006 Mr Cullen received income support from Work and Income New Zealand (WINZ) when he had been entitled in fact to continue to receive weekly compensation from the Accident Compensation Corporation (the Corporation). Arrears of compensation were calculated to be $198,288.07. $185,498.63 was paid as reimbursement by the Corporation to WINZ under the Accident Compensation Act 2001 (the Act). The difference between the compensation payable and the benefits WINZ had paid, $12,789.45, was then paid to Mr Cullen. Mr Cullen claimed interest on the total compensation arrears (from 1992 when the entitlement to interest was created), but the Corporation paid interest calculated on only the balance of $12,789.45 in arrears paid to Mr Cullen.
The question was answered in the negative first by the District Court on appeal from the Corporation.[1] That Court then declined Mr Cullen’s application for leave to appeal to the High Court on the question.[2]
[1]Cullen v Accident Compensation Corp [2011] NZACC 206.
[2]Cullen v Accident Compensation Corp [2012] NZACC 306.
The High Court granted Mr Cullen special leave to appeal, but then also answered the question in the negative.[3] The High Court declined Mr Cullen’s application for leave to appeal to this Court.[4]
[3]Cullen v Accident Compensation Corp [2013] NZHC 941.
[4]Cullen v Accident Compensation Corp [2013] NZHC 2067.
This Court has power to grant special leave to appeal under s 163(2) of the Act. The principles applicable to an application for leave under s 67 Judicature Act 1908 apply equally to an application under s 163 of the Act.[5] The Court will exercise this power if satisfied that there is a serious question of law capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal.[6] Other relevant considerations include the desirability of finality of litigation and the overall interests of justice.[7] The primary focus is on whether the question of law is worthy of consideration.[8]
[5]Knight v Accident Compensation Corp HC Christchurch CIV-2005-485-1582, 6 April 2006 at [18].
[6]Impact Manufacturing Ltd v Accident Rehabilitation and Compensation Insurance Corp HC Wellington AP266/00, 6 July 2001; Khan…

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: [2014] NZCA 94
Decision Date: 26 March 2014 at 10.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Mr. Trevor Cullen sought special leave to appeal against the Accident Compensation Corporation (ACC) regarding the calculation of interest on compensation arrears. Mr. Cullen claimed that ACC should have paid interest on the entire amount of retained weekly compensation, regardless of the repayment made to WINZ for income support benefits. The Court of Appeal considered whether ACC was required to pay interest on the whole amount of retained weekly compensation to which Mr. Cullen was entitled, notwithstanding any repayment to WINZ of income support benefit paid to him.

The Court reviewed the statutory provisions governing compensation and interest payments, particularly sections 114 and 252 of the Accident Compensation Act 2001. Section 114 requires ACC to pay interest on any payment of weekly compensation if payment is not made within the stipulated period. Section 252 deals with situations where a claimant receives income-tested benefits and establishes a claim to compensation in respect of the same period. The Court interpreted these sections to mean that interest under section 114 is only payable on late payments of weekly compensation received by the claimant, and not on refunds made to WINZ under section 252.

The Court found that Mr. Cullen was entitled to interest on the late payment of arrears of compensation of $12,789.45, which he received. However, he was not entitled to interest on the refund of $185,498.63 made by ACC to WINZ under section 252. This conclusion was based on the interpretation that interest is only payable on late payments actually received by the claimant. The Court rejected arguments that this outcome resulted in a windfall for ACC or that it was inconsistent with Mr. Cullen’s entitlement to the gross amount of compensation.

The Court of Appeal declined Mr. Cullen's application for special leave to appeal, finding that the question of law was not capable of serious argument. The Court emphasized that the statutory scheme ensures that claimants do not retain benefits from both schemes and that ACC has met its obligations by making the appropriate refunds to WINZ.

Orders