Moir v IHC New Zealand Inc
[2018] NZHC 1360
•11 June 2018
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE
CIV 2017-485-463
[2018] NZHC 1360
BETWEEN JULIE MOIR
Plaintiff
AND
IHC NEW ZEALAND INC
First Defendant
AND
PAUL WILSON
Second Defendant
Hearing: 1 March 2018 Counsel:
A Beck for Plaintiff
P McBride and H van Druten for First Defendant B A Davies and N J G Smith for Second Defendant
Judgment:
11 June 2018
JUDGMENT OF ELLIS J
[1] Ms Moir was employed by IHC New Zealand Ltd (IHC) as a caregiver when, in March 2013, she suffered a workplace accident. She injured her back.
[2] IHC is an accredited employer in terms of s 181 of the Accident Compensation Act 2001 (the Act). That means that IHC stands in the shoes of the Accident Compensation Corporation (ACC) for all relevant intents and purposes. In turn, IHC has engaged WorkAon to manage ACC claims on its behalf.
[3] On 25 August 2015, WorkAon/IHC refused to continue paying Ms Moir weekly compensation for her back injury. She then sought to utilise the review procedures under the Act in relation to that decision. ACC has contracted out that review function to FairWay Resolution Ltd (FairWay). FairWay employs individual
MOIR v IHC NZ INC [2018] NZHC 1360 [11 June 2018]
reviewers, who are appointed under s 137 of the Act, to conduct the reviews. One of those reviewers is the second defendant, Mr Wilson.1
[4] Mr Wilson was assigned to Ms Moir’s case. In his capacity as the Reviewer he made various directions to facilitate its progress, including timetable directions relating to the filing of evidence. When Ms Moir did not comply with those directions Mr Wilson declined to let her file the evidence late; he proposed instead to proceed to determine the review without it. Ms Moir now seeks to have that decision judicially reviewed by this Court.
[5] Before turning to the merits of the application for review, it is necessary to say a little more about the factual and legal context in which it arises.
Background
Statutory context
[6] Part 3 of the Act deals with the claims process. Provisions within that Part that are of present moment include:
(a)s 53, which provides that:
(i)claimants have 12 months to file a claim for cover and/or
entitlements; but
(ii)where a claimant misses the 12-month deadline, ACC must not decline a claim lodged after the time limit on the ground that the claim was lodged late, unless the lateness prejudices ACC's ability to make decisions on the claim;
1 The evidence was that Mr Wilson is a very experienced and well-qualified reviewer. He has case managed over 8000 review processes for FairWay Resolution Ltd, and been responsible for 2000 reviews through to final resolution.
(b)s 54, which Provides:
The Corporation must make every decision on a claim on reasonable grounds, and in a timely manner, having regard to the requirements of this Act, the nature of the decision, and all the circumstances.
(c)ss 56 and 57, which require ACC to make decisions:
(i)on ordinary claims within 21 days, unless it decides it needs more information in order to do so;
(ii)on complicated claims within two months, unless it decides it needs further information to do so.
(d)s 58, which provides that where ACC fails to comply with a time limit for determining claims for cover, 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.
[7] Part 5 deals with dispute resolution. The right to a review by an independent reviewer is governed by ss 134–148. The following provisions are of particular note.
[8] Section 137, which provides that the Corporation must arrange for the allocation of a reviewer as soon as practicable after receiving an application for review.
[9] Section 140, which sets out the general principles that apply in relation to the conduct of reviews. It states:
The reviewer may conduct the review in any manner he or she thinks fit, but he or she must—
(a)comply with section 138;2 and
(b)comply with any other relevant provision of this Act and any regulations made under this Act; and
(c)comply with the principles of natural justice; and
2 Section 138 requires the reviewer to act independently.
(d)exercise due diligence in decision-making; and
(e)adopt an investigative approach with a view to conducting the review in an informal, timely, and practical manner.
[10] Section 141(1) requires a reviewer to hold a hearing unless the review application is withdrawn or the parties agree otherwise. The remainder of the section provides:
(2)The reviewer must hold the hearing at a time and place that are—
(a)agreed to by all persons who are parties to the application and the reviewer; or
(b)decided on by the reviewer if those persons do not agree.
(3)The reviewer must take all practicable steps to ensure that notice of the time and place of the hearing is given—
(a)to every person entitled to be present and heard at it; and
(b)at least 7 days before the date of the hearing.
(4)The reviewer may admit any relevant evidence at the hearing from any person who is entitled to be present and be heard at it, whether or not the evidence would be admissible in a court.
[11] Section 144 deals with certain formalities around review decisions, including that a reviewer is required to make a review decision within 28 days after—
(a)the day on which the hearing of the review finishes; or
(b)if there is no hearing,—
(i)the day that the parties and all persons entitled to be present and heard at the hearing specify; or
(ii)if no such date is specified, the day on which those persons agree not to have a hearing.
[12] Section 146 provides that a reviewer is deemed to have made a decision on a review in favour of the applicant if the date for the hearing has not been set within three months after the review application is received by ACC, provided the applicant did not cause, or contribute to, the delay.
[13] Lastly, it seems important to note that claimants who are dissatisfied with the substantive decision on an independent review may appeal that decision to the District Court. Such an appeal is by way of rehearing,3 but s 156 provides (inter alia) that the Court hearing the appeal may hear any evidence that it thinks fit, whether or not the evidence would be otherwise admissible in a court of law.
The Guidelines
[14] Section 328 of the Act empowers the promulgation of regulations which (inter alia) includes prescribing rules for the conduct of reviews. As I understand it, however, this power has not been exercised, other than in relation to the specific issue of costs awards. Instead, a document entitled Guidelines for ACC Reviews (the Guidelines) has recently been formulated by FairWay in conjunction with ACC and other stakeholders, including practitioners. Although the Guidelines are dated June 2017 (after the events presently in question) Mr Wilson deposed that they reflect accepted FairWay practice prior to their promulgation. In my view, however, the Guidelines add nothing of relevance to the statutory scheme I have already outlined.
Factual context
[15] An odd feature of the present application is that neither Ms Moir herself nor Mr Peter Sara (the lawyer acting for her at all relevant times) swore affidavits in support. The only affidavit filed on her behalf was sworn by Mr Sara’s secretary, Ms Blakely, who simply annexes documents contained on Mr Sara’s files. Even putting to one side my doubt that the annexures can properly be read as proof of their contents,4 the more important point is that Mr Sara’s absence from the witness box meant that:
3 Accident Compensation Act 2001, s 155.
4 Mr Beck relied on the “business records” exception but my own view is that it does not apply.
(a)certain potential criticisms of his conduct could not be put to him; and
(b)there was no proper evidentiary basis upon which Mr Beck could advance what may be the wider point here, namely that there is something wrong with the way the review procedures are operating under the Act and, in particular, there is a tension between the statutory emphasis on timeliness and the realities of engaging in the process.5
[16] The following account factual is therefore largely taken from an affidavit sworn by Mr Wilson. The timeline it discloses is supported by notes that are made in FairWay’s electronic case note system. Where there are any gaps or conflicts with the material referred to by Ms Blakely, these are noted.
[17] The application for review of IHC’s decision on Ms Moir’s work-related ACC claim was filed on her behalf by Mr Sara, on 25 November 2015. It may at this point usefully be observed that:
(a)this was the last day upon which an application for review could be made in terms of the timeframes stipulated in s 135(2)(f) of the Act; and
(b)the three-month deadline for setting a review hearing date in terms of s 146 was therefore 25 February 2016.
[18] On 29 January 2016, FairWay sent an email to Mr Sara asking, among other things:
(a)what, if any, expert evidence was being sought by the plaintiff;
(b)whether that evidence had already been sought;
(c)if not, when it would be sought; and
5 Mr Beck did, however, seek to introduce “expert” evidence about these matters and I deal with that below.
(d)when it was anticipated that the evidence would be available and disclosed.
[19] The email further stated that if no response was received by 5 February 2016, it would be assumed that there was nothing to preclude the allocation of a hearing date. Mr Sara did not respond to the email.
[20] On 5 February 2016 FairWay emailed Mr Sara asking whether Ms Moir would prefer a hearing on 26 April 2016 or 10 May 2016. Again, no response was received. On 12 February 2016, FairWay sent a further emailed asking the same question. No response was forthcoming.
[21] On 16 February 2016, FairWay sent a letter to all parties allocating a hearing date of 10 May 2016. On 18 February 2016, FairWay sent an updated version of the initial letter, reiterating the hearing date, and including a pin code for a teleconference.6 Mr Sara raised no concerns at that time about the date allocated.7
[22] On 5 May 2016, FairWay emailed the parties enquiring as to their readiness for the upcoming hearing. The next day, Mr Sara asked for an adjournment on the basis that he wished to seek an opinion from an orthopaedic surgeon to advance Ms Moir’s review application.
[23] I interpolate at this point that Ms Blakely’s affidavit reveals that on 7 March 2016 an email had been sent by Mr Sara’s associate to Mr Andy MacDiarmid (an orthopaedic surgeon) asking for a general recommendation about a back specialist. A slightly more specific request (asking Mr McDiarmid to recommend as back specialist who might give expert evidence for Ms Moir) was the subject of a further email the day after the adjournment request.
6 Both letters were addressed to two WorkAon employees, Mr Sara and to Ms Moir (“c/-” Mr Sara).
7 Paragraph 11 of the Statement Claim of alleges that the hearing date was set “over the objection of the plaintiff” but there was no evidence to support this allegation.
[24] On 6 May 2016, WorkAon notified its opposition to the adjournment request on the grounds that it had been made some six months after the review application had been lodged, and (as WorkAon understood the position) steps had been taken to secure an expert opinion only two working days before the scheduled hearing.
[25]Mr Wilson refused to grant the adjournment, saying:
The decision in this review dates back to 25 August 2015.
The review has been set unagreed for hearing (after neither party responded to offered dates).
An application to adjourn has now been received some two working days prior to the review hearing on the basis that medical evidence is sought on behalf of the Applicant. I am not told when that evidence was sought.
I note Authority to Act has been provided by Mr Sara along with the request. However that document is dated 2 January 2014 however I note Mr Sara was provided with a copy of the actual hearing notice on 16 February 2016.
I therefore decline the application to adjourn.
[26] On 9 May 2016, WorkAon filed its submissions on IHC’s behalf and inquired of Mr Sara when Ms Moir’s submissions would be provided. Mr Sara did not file any submissions.
[27] At the commencement of the 10 May 2016 hearing, Mr Sara advised that he did not yet have a copy of the file relating to Ms Moir’s review.8 It seems that Mr Sara had not requested the file from WorkAon and WorkAon had not itself taken steps to provide it to him. Self-evidently, Mr Sara could not seek an expert opinion without providing the expert with Ms Moir’s medical history contained on the file. Mr Wilson then determined that, in these circumstances, he had no choice but to adjourn the hearing.
[28] On 12 May 2016, Mr Wilson emailed the parties expressing concern about the delays in the review to date, and advising that he now intended to actively case manage the progression of the review. He again expressed concern about the impact of the delays. He said:
8 The file contains the complete record of Ms Moir’s medical history and correspondence between a her and WorkAon.
…
I do however wish to express my concern that approaching 9 months since the issue of the decision and 6 months since the review application was lodged, this matter seems to still be a substantial way from being ready for hearing.
Given that the issue is Mrs Moir's capacity or incapacity as at March 2014 and that any medical evidence must focus on that retrospective point in time that concern is further exacerbated.
In light of these circumstances I propose to retain this matter to myself and actively case manage its progression to as expeditious as hearing as appropriate.
I anticipate both advocates will share my concerns and assist in that process.
[29] In the course of the next four to five months Mr Wilson contacted Mr Sara several times to check on progress. No specific dates or deadlines were set. I note the following:
(a)on 7 June 2016, there is an email to Mr Sara asking what was required to prepare the matter for hearing, and for a proposed timetable for such steps;
(b)Mr Sara responded the next day, advising that he had received a recommendation that Ms Moir see the Mr David Bartle (an orthopaedic surgeon), and that Mr Sara would be writing to Mr Bartle shortly;
(c)on 9 June 2016, Mr Sara was asked to advise when instructions had been sent to Mr Bartle;
(d)Mr Sara did not reply; and
(e)on 27 June 2016, Mr Sara was again asked whether Mr Bartle had been instructed. Mr Sara responded “yes” but provided no further detail.
[30] All not known to Mr Wilson at the time, the evidence filed on behalf of Ms Moir in these proceedings show that:
(a)The instructions to Mr Bartle were sent on 16 June 2016.
(b)On 5 July 2016, Mr Bartle advised Mr Sara that an appointment had been made for Ms Moir on 8 August 2016.
(c)A hand-written note on the letter from Mr Bartle’s office records what appears to have been a conversation with Mr Bartle’s practice manager, Angela Carter, as follows:
Appointment sent to Julie [Moir] on 5.7.16 she [Ms Carter] has requested Julie confirms availability. She will also be phoned 2 days prior to appointment.
(d)On 8 August, Ms Carter called Mr Sara’s office and advised that Ms Moir had not attended the appointment on that day.
[31] On 25 August 2016, Mr Sara was asked for an update on progress made with Mr Bartle. He did not reply. The request was repeated by WorkAon on 5 September 2016. On 8 September, Mr Sara’s associate advised that Ms Moir had missed her appointment with Mr Bartley and that there had been some difficulty contacting her.
[32] On 9 September, the parties were asked how the review should be progressed, in light of Ms Moir’s failure to attend the appointment. WorkAon suggested the matter should be concluded on the papers on the basis of the information already on file. Mr Sara did not reply.
[33] On 16 September 2016, FairWay emailed Mr Sara again, requesting an update. Mr Sara advised that:
Mrs Moir did not receive notice of her appointment from Mr Bartle so naturally she did not attend. To be fair to her, the PA for Mr Bartle was supposed to ring her 2 days before the appointment but failed to do so. I have asked Mr Bartle to reschedule the appointment.9
9 Ms Blakely’s affidavit indicates that this request was made by letter dated 13 September 2016.
[34] Mr Wilson immediately sought further detail from Mr Sara about the date of the appointment, and indicated that he would allow one month after the appointment for the report to be produced.
[35] On 22 September 2016, Mr Sara advised that the plaintiff had an appointment with Mr Bartle on 7 November 2016. He made no comment as to the feasibility of the timeframe indicated for the provision of the report.
[36] On 5 October 2016, Mr Wilson made directions timetabling the matter to a hearing, as follows:
(a)Ms Moir was to file any expert evidence from Mr Bartle by 5pm on 19 December 2016 (six weeks after the re-scheduled appointment with Mr Bartle);
(b)WorkAon was to file any response from its appointed expert by 5pm on 30 January 2017;
(c)Ms Moir was to file any response from Mr Bartle by 5pm on 14 February 2017; and
(d)the review was to be set down for hearing on the first available date on or after 21 February 2017.
[37]Mr Wilson made it clear in his directions that:
(a)any evidence filed outside the time limits would not, in the absence of exceptional circumstances, be received by him in evidence; and
(b)the timetable would only be amended for compelling reasons.
[38]He recommended that the parties advise their experts of the relevant deadlines.
[39]In making these directions, Mr Wilson also observed that:
(a)the review did not appear to involve any unusual or especially complex issues; and
(b)evidence provided significantly after the decision date will, as a general rule, carry less weight than more contemporaneous evidence.
[40] No evidence was filed on Ms Moir’s behalf by the 19 December 2016 deadline set by Mr Wilson. On 12 January 2017, Mr Wilson advised the parties that, because the deadline had come and gone, he was not prepared to admit any new expert evidence. He asked the parties whether they wished the proceed with an oral hearing or by way of teleconference.
[41] On 16 January 2017, Mr Sara emailed a (one and a half page) report by Mr Bartle dated 19 December 2016 to FairWay and WorkAon, saying simply:
Dr Bartle’s report was received on 23 December last. There was no time to deal with the matter that day and today is my first day back at work. … I request that the reviewer reconsider the ruling/direction that no new expert evidence be admitted.
[42]Mr Wilson responded the same day, stating:
I issued very clear directions and timetabling at the review hearing. Those directions took into account the substantial history of this matter and were confirmed in writing so as to be clear to both parties. They were not complied with and no request for an extension of the time limits was made. In those circumstances I am satisfied the directions were made appropriately and will continue to apply. I decline to allow the additional evidence now sought to be relied upon to be admitted.
[43]Shortly afterwards, Mr Sara sent a further email in which he said:
Further information has come to light. My client was unable to attend the appointment on 7 November 2016 and so Mr Bartle rescheduled the appointment for 19 December. Neither she nor Mr Bartle was aware of Mr Wilson’s dictate [sic]. In my experience it is very rarely the case that medical experts will produce reports in accordance with reviewer’s [sic] expectations even when they are couched in peremptory terms. The experience in the District Court is similar.
I must insist that Mr Wilson admits the additional medical report from Dr Bartle. If he does not the matter will need to be taken further and this might include an application for judicial review in the High Court.
[44] On 17 January 2017, WorkAon notified its opposition to Mr Sara’s request and on 20 January Mr Wilson confirmed his earlier decision not to receive Mr Bartle’s report. Although at this point Mr Wilson appears to have been under a misapprehension that Mr Sara had received the report by 19 December 2016, this was corrected by Mr Sara that same day. Mr Sara advised that he had not received the report until after the deadline had passed and that “due to the usual last minute rush at the last half day of work the matter of seeking an extension of time was overlooked”.
[45]On 24 January 2017, Mr Wilson asked Mr Sara:
On what date was the report received please? Why given the cancellation of the 7 November 2016 appointment and with knowledge that this would impact on timetabling, an extension was not sought at that time?
[46]Mr Sara’s reply was that:
(a)the report was received at his office on the afternoon of 22 December;
(b)he was not aware of the cancellation of the appointment; and
(c)he accepted responsibility for the failure to apply for any extension, and that that was an oversight on his part.
[47] It is necessary to interrupt the narrative here to record that annexed to Ms Blakely’s affidavit is a copy of an email dated 4 November 2016 from Mr Bartle’s office advising that Ms Moir had rescheduled her appointment to 19 December 2016. The email was sent to Mr Sara’s own email address, which he forwarded to his associate within the hour. Mr Wilson was at no time told of this email.
[48] As noted earlier, Mr Sara did not himself give evidence in these proceedings and was not represented. That creates potential natural justice issues in terms of any adverse findings against him. But, subject to the qualification that it has not been possible to put these matters to him, there is an available inference to be drawn that he
did know about the rescheduling of the appointment but took no steps to advise Mr Wilson. The unfortunate documentary history of his rather cavalier dealings with FairWay throughout the review process does not stand him in good stead in that regard.
[49] In any event, on 1 February 2017 Mr Wilson confirmed again that he would not receive the evidence of Mr Bartle. He advised:
I note [Mr Sara's] comment. I have revisited my directions notice of 5 October 2016. I am satisfied that the directions provided were entirely unequivocal and that the requested evidence was to be filed no later than 5pm on 19 December 2016. That report was not filed until 16 January 2017 although it appears to be dated 19 December 2016. No extension of time for filing was sought. Aon has objected to the evidence being admitted in breach of directions. Should that evidence be admitted and in accordance with the earlier directions I will then have to allow Aon a response with a final response to the applicant. Realistically this means the review will not be ready to proceed for somewhere in the region of a further 3-4 months. By that point in time the original substantive decision will be approaching two years of age. Taking all these factors together I decline to admit the evidence of Dr Bartle. I would appreciate clarification from the advocates accordingly as to whether they wish to reconvene a hearing in person, by telephone or on the papers.
[50] These proceedings were filed on 31 May 2017. Further noise was occasioned by a wrangle over a fee waiver application, which resulted in the following:
(a)a judgment of Mallon J dated 26 May 2017;10
(b)an application asking Mallon J to rescind that decision (dealt with by Mallon J in a minute dated 20 June 2017);
(c)an application for leave to appeal the 26 September decision which was declined by Mallon J on 8 September 2017;11
(d)a further application for leave to appeal being made to the Court of Appeal;
10 Moir v IHC New Zealand Inc HC Wellington CIV 2017-485-463, 26 May 2017.
11 Moir v IHC New Zealand Inc [2017] NZHC 2189.
(e)an application for a review of the decision by the Registrar of the Court of Appeal refusing to grant a refund of the filing fee in that Court, which was declined on 14 March 2018;12 and
(f)the application for leave to appeal being declined by the Court of Appeal on 30 April 2018.13
The application for review
[51] The statement of claim alleges that Mr Wilson’s decision not to accept Dr Bartle’s report:
(a)was not in accordance with the statutory scheme;
(b)failed to take relevant matters into account; and
(c)was disproportionate.
[52] The particular statutory provisions relied on in relation to the first allegation are ss 140, 142 and 145. The specific ways in which Mr Wilson is said to have acted inconsistently with them is by:
(a)following an adversarial rather than an investigative approach;
(b)restricting Ms Moir’s right to be heard at the review hearing;
(c)precluding the possibility of a decision being made that was based on all relevant material; and
(d)preventing a decision being made only on the basis of the substantive merits of the case.
12 Moir v IHC New Zealand Inc [2018] NZCA 48
13 Moir v IHC New Zealand Ltd [2018] NZCA 130.
[53] In terms of the relevant factors said to have wrongly been ignored by Mr Wilson, the specific pleading is that:14
28.At the time the report from Mr Bartle was received, it was not possible for the plaintiff to comply with the timetable directions made by the second defendant.
29.There was no substantial prejudice flowing from the provision of the report on 16 January 2017.
30.In reaching his decision, the second defendant failed to take into account:
30.1.That compliance with the directions was not possible.
30.2.That there was no substantial prejudice.
[54]And as to disproportionality, it is said:
32.The second defendant’s decision was founded on a failure to comply with timetable directions.
33.The effect of the second defendant's decision was to deprive the plaintiff of the ability to prevent cogent and relevant material in support of her application.
34.The second defendant's decision was a grossly disproportionate response to the situation.
[55] Reduced to its most fundamental, however, it seems to me that the pleading is really concerned with a breach of natural justice. In essence, Mr Beck says for Ms Moir that Mr Wilson’s decision deprived her of an appropriate opportunity to present her case on review. I consider that the matters said to have been overlooked and issues about proportionality are better regarded as relevant to that inquiry, rather than as discrete grounds for review. I propose to proceed on that basis.
Further evidence
[56] Before turning to the merits of the natural justice issue it is necessary to mention again that, at the hearing of the review application Mr Beck, sought leave to file further expert evidence by way of an affidavit in support of Ms Moir’s position.
14 Other matters which were also said to be relevant were referred to in Mr Beck’s submissions.
The deponent was Mr Warren Forster, a barrister and researcher with particular interest in the operation of the ACC system. In his own words, his affidavit addressed:
a.Recent research into access to justice issues in the Part 5 dispute resolution process under the Accident Compensation Act 2001 …;
b.the problem with injured people's access to expert evidence in disputes under Part 5 of the Act;
c.the problems with access to representation in disputes under Part 5 of the Act;
d.the problems with procedure at review hearings and the lack of legal mechanisms to address these procedural issues; and
e.how I consider those issues have impacted on the events in this case.
[57] The admission of Mr Foster’s affidavit was opposed and I declined to accept it. While its contents may well be of some wider interest it is not substantially helpful here. Any problems with the way in which the review system is operating are only relevant if they can be shown to have a bearing on Ms Moir’s case. In the absence of factual evidence from either Ms Moir or Mr Sara about particular difficulties experienced by them in the conduct of her review, the critical connection is missing.
[58] Accordingly, and regardless of whether wider issues of the kind referred to by Mr Forster exist (and some, if not all, of these would be disputed) they cannot assist in determining Ms Moir’s claim. Her claim falls to be determined by reference to its own unique facts, measured against orthodox administrative law principles. So, it is to that exercise that I now turn.
Was there a breach of natural justice here?
[59] Before turning to the specific natural justice issues raised by this case it is necessary to begin by saying something about reviewers’ powers to control the conduct of review proceedings under the Act.
[60] Notwithstanding that the Act does not appear to confer on reviewers the usual power to determine or regulate their own procedure, an implied power of that kind must exist. In other words, reviewers must possess the powers that are necessary in order for them to fulfil their statutory functions. Here, I have no hesitation in
concluding that such powers would include powers to make timetable directions and (within limits) to impose consequences for non-compliance. Again, the importance placed by the Act on timeliness and expedition unarguably supports this.
[61] The question that arises, however, relates to the appropriate interaction between such powers and Ms Moir’s natural justice rights.
[62] There is no dispute that reviewers are bound to observe the principles of natural justice. Section 140 says as much. But what natural justice requires will vary, depending on the circumstances. As Elias J said in Ali v Deportation Review Tribunal:15
The place of the principles of natural justice in the New Zealand legal system, is affirmed by s 27 of the New Zealand Bill of Rights Act 1990. They are principles established before the adoption of that Act by the common law. Fundamental to the principles of natural justice is the requirement that where the circumstances of decision making require that someone affected by it be given an opportunity to be heard, that person must have reasonable opportunity to present his case and reasonable notice of the case he has to meet. The more significant the decision the higher the standards of disclosure and fair treatment. In cases involving immigration status, high standards of fairness are required by natural justice because of the profound implications for the lives of those affected.
[63] Here, the relevant statutory provisions make it plain that natural justice may require a reviewer to afford a party to a review the opportunity to present evidence. That is clear from ss 141(4) and 143, although s 141(3) makes it clear that such “evidence” need not be admissible in a court of law. As well, the statutory emphasis on timeliness and informality suggests that any evidentiary process will not necessarily be akin to that of a Court. And the investigative nature of the review process also suggests that a reviewer may make his own inquiries.16 He may, presumably, take into account any relevant material that such a process uncovers, subject (again) to the requirements of natural justice. The short point is, however, that there is no absolute obligation on a reviewer to permit a party to call evidence.
[64] Next, a decision by a reviewer that evidence will be useful and appropriate in a particular case does not mean that the parties then have a right to call evidence.
15 Ali v Deportation Review Tribunal [1997] NZAR 208 (HC) at 220 (emphasis added).
16 Accident Compensation Act, s 140.
Rather, as the quotation above makes clear, the most that natural justice can require is a right to be given a reasonable opportunity to do so. And what a “reasonable opportunity” might look like will depend on the particular circumstances of each case. Here, the following matters seem relevant to the inquiry.
[65] First, I necessarily proceed on the assumption that Mr Bartle’s report may be somewhat helpful to Ms Moir’s case. That was not the subject of much discussion before me and I do no more than note that, on its face, it appears to provide some support for her position. That said, a medical opinion of that kind is likely to be less valuable when some time has passed since not only the relevant accident (nearly four years) but the decision under review (one and a half years). That point was made by Mr Wilson and it appears to be self-evidently correct. And I am of course unaware of what other material might be before the reviewer as to the cause of Ms Moir’s ongoing back issues.
[66] The absence of both wider evidentiary context and any definitive assessment of the importance of Mr Bartle’s report to Ms Moir’s case makes it difficult to engage in any meaningful proportionality assessment difficult. In the end, I can only assume that there might be some prejudice to Ms Moir if the report is not considered and taken into account by the reviewer. But I would put it no higher than that.
[67] Secondly, on the face of the documentary record, and in the absence of explanatory evidence from Mr Sara or Ms Moir, it is impossible not to have considerable sympathy for the position in which Mr Wilson found himself in late 2016. That progress on Ms Moir’s application had been dilatory seems an understatement. The record shows that Mr Sara was often unresponsive to requests for information. The delays, which appear to have been occasioned largely by him or by Ms Moir, were considerable. Mr Wilson was, of course, statutorily required to keep the matter moving. The fact that the review process is intended to be relative informal does not affect that conclusion. Such informality is intended to promote expedition, not impede it. In the face of largely unexplained and unjustified inaction by an applicant, a reviewer must be able to take steps to progress matters.
[68] So, in my view Mr Wilson was entitled to make the directions he did in October 2016. And those directions could not have been clearer as to the consequences of further delay.
[69] As to the impugned decision itself, it is indisputable that Mr Bartle’s report was provided late. The reasons for the lateness proffered by Mr Sara were not particularly compelling. While the closure of his office over the Christmas vacation may be both expected and unexceptionable, the reality seems to be that he:
(a)knew about the deadline;
(b)knew or should have known of the rescheduled appointment;
(c)did not inform the reviewer of this; and
(d)did not seek an extension of time.
[70] Whatever may be the frustrations and exigencies of the review process (and again, I have no admissible evidence about those) there appears to be a lack of courtesy at the heart of this matter that does not favour Ms Moir’s position. As well, accepting the report late would inevitably cause further delays and would necessarily cause prejudice to WorkAon.17 Although the specific delay was relatively short, it must be viewed in its wider context; by January 2017 it had been well over a year since the filing of the application for review, the hearing had been adjourned once and, ostensibly, little or no progress had been made.
17 As the reviewer noted, if the report was admitted he would (in accordance with his earlier directions) have had to allow WorkAon the opportunity to respond and to provide Ms Moir with a right of reply. Those steps would result in a further delay of between three and four months, by which time two years would have passed since the making of the decision under review.
[71] All that being said, it should in fairness be noted that there is no obvious, collateral, reason for Ms Moir’s delays and non-compliance. While this is not a point in favour of receiving the report, it does at least differentiate her case from those in which a party seeks, through delay, to game the system or deliberately to disadvantage the other side. On the contrary, one would think that Ms Moir’s interests would lie in moving matters on.
[72] Lastly, I return to the question of prejudice to Ms Moir herself. I have already noted the difficulty in this Court attempting to assess the value of Mr Bartle’s report to Ms Moir’s case. But what is not contentious is that its exclusion does not prevent her from progressing her application for review; indeed, she might prevail even without it. In that sense, the directions made were not like “unless orders” properly so-called and their consequence was less severe than in the cases referred to by Mr Beck.18
[73] Even if that were not so, in the event that the review proceeded without the evidence of Mr Bartle, and Ms Moir did not prevail, she would have appeal rights available to her. An appeal could, no doubt, be advanced on the ground that the evidence had wrongly been excluded. But perhaps more important is the point that Mr Bartle’s report could have been put in evidence on the appeal. So, to the extent there was real prejudice to Ms Moir flowing from the decision, it is not prejudice that is incapable of remedy.19
Conclusion: substantive grounds of review
[74] On balance, I do not consider that there has been a vitiating breach of natural justice here. What was required was that Ms Moir be given a reasonable opportunity to present her case on review which, I accept, included the ability to file expert evidence. She was undoubtedly given that opportunity but failed to exercise it in a timely way. In light of the competing considerations at play here, I am unable to
18 McEvoy v Dallison [1997] 3 NZLR 11 (CA) and Bevan-Smith v Reed Publishing (NZ) Ltd (2006) 18 PRNZ 310 (CA).
19 Any argument that Ms Moir would, nonetheless, be prejudiced by the extra cost and delay involved in the appeal process is necessarily diminished by her own contribution to the delays during the review process.
conclude that the reviewer’s decision not to accept Mr Bartle’s report was unfair. The application for review is, accordingly dismissed.
Discretion
[75] I end by recording that, even if I had found a breach of natural justice here, I would have exercised my discretion against the grant of relief. The filing of these proceedings has only exacerbated what was already an unwarranted and quite unacceptable delay. That delay runs directly contrary to the relevant statutory provisions and is clearly contrary to Ms Moir’s interests. I, for one, regret my own contribution to it.
[76] More importantly however, Ms Moir had (and still has) other, more appropriate avenues available to her. While I acknowledge that the existence of appeal rights do not operate to preclude a successful application for judicial review, they are potentially relevant to the Court’s discretion. And as I have said, the exercise of those rights in the present case may well be capable of remedying any substantive prejudice that Ms Moir may have suffered, or may yet suffer.
Result
[77]The application for judicial review is dismissed.
[78] My assumption is that Ms Moir is legally aided and no costs order should be made. Memoranda may be filed if I am wrong about that.
Rebecca Ellis J
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