Kereama v Accident Compensation Corporation
[2017] NZHC 1466
•29 June 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2016-485-464 [2017] NZHC 1466
UNDER the Judicature Amendment Act 1972 and
the Declatory Judgments Act 1908
BETWEEN
MARGARET KEREAMA Applicant
AND
ACCIDENT COMPENSATION CORPORATION
First Respondent
AND
VICKI THOMSON Second Respondent
CIV-2017-485-97
UNDER the Accident Compensation Act 2001
BETWEEN MARGARET KEREAMA Applicant
ANDACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 29 May 2017 Appearances:
A Beck for Applicant
PA McBride for First Respondent
M Richards for Second RespondentJudgment:
29 June 2017
JUDGMENT OF WILLIAMS J
[1] Ms Kereama suffered an injury for which she had cover and specific entitlements under the Accident Compensation Act 1982. The detail and timing of
the injury is not relevant to the applications before me. She was found to have a
MARGARET KEREAMA v ACCIDENT COMPENSATION CORPORATION [2017] NZHC 1466 [29 June
2017]
15 per cent loss of bodily function and received a lump sum payment as was her entitlement under that Act.
[2] On 19 May 1999, Ms Kereama was reassessed for the purposes of an independence allowance under the Accident Rehabilitation and Compensation Insurance Act 1992. This was the relevant Act in force at the time and the allowance was a new entitlement.
[3] The Corporation found that Ms Kereama was not entitled to an independence allowance. The reassessment found her bodily function impairment had reduced to
10 per cent, and, since she had received (lump sum) compensation on the basis of
15 per cent impairment under the 1982 Act, she had no further entitlements under the new Act.
[4] Nearly 16 years later, in 2015, Ms Kereama sought a review of that 1999 determination. By then, the 1992 Act (under which, as I have said, the reassessment was done) had also been repealed. The new Act in force in 2015 was the Accident Compensation Act 2001. On receipt, the Corporation advised Ms Kereama that it could not accept her application for review because it had not been lodged within three months of the date of the reassessment as required by s 89 of the 1992 Act.
[5] The Corporation was nonetheless bound to give the application to a reviewer despite considering that there was no jurisdiction, pursuant to s 137 of the 2001 Act. It duly arranged for the second respondent to decide whether she had jurisdiction to hear the review. And on 3 September 2015, the second respondent affirmed the Corporation’s decision that there was no jurisdiction. That decision in turn was appealed under s 149 of the 2001 Act to the District Court, and that Court again confirmed that there was no jurisdiction to entertain a review on the merits of the
1999 decision because of the time limits in s 89 of the 1992 Act.1
[6] The matter has now come before me via two procedural pathways. The first is an application by Ms Kereama for special leave to appeal on a question of law, the
decision of the District Court (leave having already been declined in that Court);2 and the second is her collateral application for judicial review of the jurisdictional decisions of the Corporation and the independent reviewer (the first and second respondents in that proceeding respectively).
[7] As I will shortly explain, both proceedings in the end turn on the interpretation of s 391 of the 2001 Act set in the wider context of Part 11 of that Act. Rather than become caught up in procedural arguments over the availability of judicial review as a collateral attack procedure, I propose simply to address the primary question of law that arises.
[8] Part 11 of the 2001 Act contains all transitional provisions relating to entitlements provided by the Corporation where the original cover or entitlement decision was made under a prior Act. It includes provisions relating to review and appeal proceedings where the challenged decisions were made under former Acts (as the 19 May 1999 decision plainly was).
[9] The underlying question is whether the provision controlling time for lodging an application for review is that contained in s 89 of the 1992 Act (permitting of no extension of time for review applications) or s 135 of the 2001 Act (in which the Corporation has a discretion to accept a late application if it is satisfied that one of the three extenuating circumstances applies). The answer to this question depends on the meaning of s 391. Before turning to that section, I will briefly outline the competing review sections.
[10] Section 89 of the 1992 Act provides for review of decisions by the
Corporation. Section 89(5)(b) provides that an applications for review—
may be made within three months after the date on which notice in writing has been given of the decision in respect of which the review is sought[.]
[11] There is, as I have said, no ability to extend this period.
[12] Section 135 of the 2001 Act is contained in Part 5. That section allows an application for review to be filed after the three month period specified in subs (2)(f) or 21 day period in subs (2)(g), but only if there are “extenuating circumstances” as described in subs (3). Subsection (3) provides as follows:
(3) Despite subsection (2)(f) and (g) … the Corporation must accept a late application if satisfied that there are extenuating circumstances that affected the ability of the claimant to meet the time limits, such as—
(a) where the claimant was so affected or traumatised by the personal injury giving rise to the review that he or she was unable to consider his or her review rights; or
(b) where the claimant made reasonable arrangements to have the application made on his or her behalf by an agent of the claimant, and the agent unreasonably failed to ensure that the application was made within the required time; or
(c) where the Corporation failed to notify the claimant of the obligations of persons making an application.
[13] Ms Kereama argues that s 135(3) is the controlling provision because that is the review path directed by s 391. The Corporation and the reviewer say s 391 does not apply to her case, so s 89 of the 1992 Act applies and she is out of time.
[14] Before turning to s 391, I should first mention s 355 because it directs that Part 11 controls cover and entitlements generally for those in Ms Kereama’s position. It provides:
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.
[15] Within that same Part, s 391 relates to reviews and appeals from pre-2001 Act decisions. It provides:
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 Injury Prevention, Rehabilitation, and Compensation Amendment Act 2003.
(4) Part 5 applies to any decision made by the Corporation under this Part, except a decision referred to in subsection (1), subsection (2), or subsection (3).
[16] The long and short of this provision is as follows:
(a) Appeal and review of any decision made under the 1972 or 1982 Act is dealt with under Part 9 of the 1982 Act.
(b)Any review or appeal against a decision under the 1992 Act is governed by Part 6 of that Act if the application for review was made or the appeal filed before 1 July 1999 (the commencement date of the
1998 Act).
(c) Any review or appeal in relation to a decision made under the 1998
Act is governed by Part 6 of that Act if the application was made or
the appeal filed before 1 April 2002 (the commencement date of the
2001 Act).
(d)But the provisions of Part 5 of the 2001 Act (including s 135 referred to above) contain the procedure for any decision in relation to pre-
2001 Act decisions the Corporation makes under Part 11.
[17] The essence of the case for Ms Kereama is that subs (4) is the controlling provision in her case and this says s 135 is the relevant review provision. Ms Kereama argued subs (4) should be read as a residual backstop which covers review and appeal procedure for every pre-2001 Act decision not otherwise dealt with in the preceding subsections. In Ms Kereama’s case, although the relevant decision was made under the 1992 Act, her review application was not filed before
1 July 1999. Subsection (2) therefore is not triggered making subs (4) the default. The Corporation argues that subs (2) does not apply because the application for review was not filed before 1 July 1999 and subs (4) has no application because it is designed to deal with quite different decisions. The Corporation, the reviewer, and the District Court were therefore all correct to conclude there is no jurisdiction to entertain a review at any stage after the expiry of three months from the decision, let alone nearly 16 years after that date.
[18] I agree with the interpretation adopted by the Corporation, the reviewer and the District Court. To succeed, Ms Kereama’s backstop argument runs up against the plain words of subs (4). The decisions it directs to Part 5 are only ones made by the Corporation under Part 11. No decision has been made by the Corporation under Part 11 in Ms Kereama’s case. It most certainly cannot be said that the May 1999 decision meets that description.
[19] Ms Kereama might have an argument if subs (4) had simply covered any decision “under this Part”. It might have been possible to argue that although the
1999 decision was made under the 1992 Act, the effect of s 355 was to bring it under the authority of Part 11. But subs (4) is a verbal sentence. It refers to decisions that are “made” under Part 11.
[20] Part 11 contains many provisions that require the Corporation to make contemporary decisions about historical entitlements that have been “grandfathered” in by virtue of that Part. These include treatment entitlements, the calculation of weekly compensation, rehabilitation decisions, calculations of compensation for pecuniary loss, entitlements to independence allowances, lump sum compensation and so forth. For the most part, these provisions declare that the prior law continues to apply, although occasionally this is with modifications.
[21] It does not matter that in many (but not all) cases, the relevant Part 11 provisions empowering today’s officials to make decisions about historical entitlements refer to those repealed acts as the controlling law.3 They are still decisions made under Part 11 to the extent that if it were not for Part 11, there would be no power to make them at all. But the key point, it seems to me, is that subs (4) is referring to contemporary decisions not historical ones. That is to first instance
decisions, as it were, that are able to be made today because of the enactment of Part 11. It cannot therefore relate to decisions that pre-date the enactment of that Part. They cannot logically have been made “under” Part 11.
[22] This reasoning is found in a line of District Court cases beginning with Ward v Accident Compensation Corporation,4 and is consistent with the recent Court of Appeal decision in Hawke v Accident Compensation Corporation.5
[23] This interpretation is reflected in the purpose of Part 11 recorded in s 352. It relevantly provides 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:
3 Interestingly the independence allowance provisions in s 377 to s 379 which generally apply the
1998 Act, contain specific modifications as to how contemporary entitlements ought to be calculated. See for example s 377(3). So even if the argument advanced was correct, it would not apply to independence allowance decisions, because the old law is modified in this Act.
4 Ward v Accident Compensation Corporation DC Auckland 64/2003, 15 April 2003 at [8]-[10].
5 Hawke v Accident Compensation Corporation [2015] NZCA 189, [2015] NZAR 897 at [36].
(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[.]
[24] Paragraph (a) provides that the modern Corporation must “determine” whether there is cover for a pre-2001 Act injury, and paragraph (b) provides that entitlements must be calculated whether under Part 11 or other provisions in the Act. Paragraph (c) is a reference to s 391. It refers not to decisions under this Part, but to old decisions under former acts. In s 391, as I have already set out, the historical decisions in subs (1), (2) and (3) are specifically excluded from the subs (4) category “any decision made by the Corporation under this part” to which Part 5 (particularly s 135) applies.
[25] Mr Beck, for Ms Kereama, argued that a wide and generous construction of the relevant provisions should be adopted in accordance with often expressed dicta in relation to Accident Compensation legislation, for example Harrild v Director of Proceedings.6 While I agree with that sentiment if the interpretation is reasonably available, that cannot provide a basis for effectively amending the legislation to a meaning that the words do not themselves carry.
[26] In any event, there is no particular reason to read subs (4) as if it is a comprehensive backstop in the manner suggested. Section 391 makes sense if it is simply read as requiring applications for review and appeals to be filed in accordance with the procedures contained in the legislation under which the challenged decision was made. Subsections (1) through to (3) make sense if they are read as providing the only procedural gateways through which decisions made prior to April 2002 may be challenged. As the Corporation argues, to read subs (4) in the manner argued for by Mr Beck would create a whole new set of procedural rights that were not contained in the original applicable Acts. It seems most unlikely that this was Parliament’s intention. Rather, subs (4) plainly applies to decisions made
post-April 2002 in respect of earlier injuries.
6 Harrild v Director of Proceedings [2003] 3 NZLR 289 (CA).
[27] It must follow therefore that the application for judicial review is dismissed. Because of my clear view on the construction of s 391, it is unnecessary for me to address the other arguments raised by the respondents as to the availability of judicial review. In particular I express no view on Ms Richards’ argument that even if the cases that the reviewer applied were wrong, she was bound to apply them and doing so cannot amount to an error of law.
[28] The application for leave to appeal on a question of law is also dismissed. Special leave is not lightly granted. There must usually be an issue of principle at stake and a reasonable prospect of success. In this case, although the question raised is one of principle and of general interest, it is, as I have discussed, insufficiently arguable to warrant a grant of leave.
Williams J
Solicitors:
Hazel Armstrong Law, Wellington for Plaintiff
McBride Davenport James, Barristers & Solicitors, Wellington for First Respondent
Minter Ellison Rudd Watts, Wellington for Second Respondent
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