Moir v IHC New Zealand Incorporated
[2019] NZCA 92
•5 April 2019 at 9 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA377/2018 [2019] NZCA 92 |
| BETWEEN | JULIE MOIR |
| AND | IHC NEW ZEALAND INCORPORATED |
| AND | PAUL WILSON |
| Hearing: | 26 February 2019 |
Court: | French, Dobson and Brewer JJ |
Counsel: | A C Beck for Appellant |
Judgment: | 5 April 2019 at 9 am |
JUDGMENT OF THE COURT
AThe appeal is dismissed.
BWe make an order under s 45(5) of the Legal Services Act 2011 that had s 45 not affected the appellant’s liability to pay costs, the appellant would have been ordered to pay costs to the first respondent for a standard appeal on a band A basis with usual disbursements. We would not have certified for second counsel.
____________________________________________________________________
REASONS OF THE COURT
(Given by French J)
Introduction
Ms Moir invoked the review procedures under the Accident Compensation Act 2001 (the Act). The reviewer assigned to her case was the second respondent, Mr Wilson. He directed that certain medical evidence which Ms Moir wanted to adduce was to be filed by a specified date otherwise, in the absence of exceptional circumstances, it would not be admitted in evidence. Ms Moir failed to comply with that timetabling direction. Mr Wilson declined to admit the evidence and proposed instead to proceed to determine the review without it.
Ms Moir then sought judicial review of Mr Wilson’s decision to decline to admit the evidence.
The case was heard by Ellis J. The Judge found Mr Wilson’s decision was fair and dismissed the application for judicial review.[1]
[1]Moir v IHC New Zealand Inc [2018] NZHC 1360.
Dissatisfied with that outcome, Ms Moir brought this appeal.
Background
Events leading up to the Reviewer’s direction
Ms Moir was employed by the first respondent, IHC New Zealand Inc. In March 2013 she suffered a workplace accident. She injured her back and made a claim for accident compensation. IHC is an accredited employer under the Act.[2] As Ellis J noted, that means that for all relevant intents and purposes IHC stands in the shoes of the Accident Compensation Corporation (ACC).[3]
[2]See Accident Compensation Act 2001, s181. This provides that an accredited employer “means an employer who has entered into an accreditation agreement [with the Accident Compensation Corporation] and includes the Corporation while it is accredited under s 186”.
[3]Moir v IHC New Zealand Inc, above n 1, at [2].
The claim was managed on behalf of IHC by an organisation called WorkAon. On 25 August 2015, WorkAon determined that as at 27 March 2014 Ms Moir was no longer incapacitated for employment as a result of the accident. That determination ended her entitlement to weekly earnings compensation with effect from 27 March 2014.
Ms Moir consulted a lawyer, Mr Sara, and on 25 November 2015 he filed an application for review of the determination under s 134 of the Act.
ACC has contracted its review function to FairWay Resolution Ltd. FairWay employs individual reviewers who are appointed under s 137 of the Act to conduct the reviews. Mr Wilson is one of those reviewers.
On 29 January 2016, FairWay asked Mr Sara whether he intended to call any expert evidence, what steps were being taken to obtain that evidence, and when would it be available. This and two further communications from FairWay to Mr Sara about a hearing date did not elicit any response.
On 16 February 2016, FairWay issued a notice advising the review hearing would be held on 10 May 2016. On 6 May 2016, Mr Sara sought an adjournment on the grounds he wanted to seek an opinion from an orthopaedic surgeon about Ms Moir’s case. The adjournment was initially declined but when it transpired at the commencement of the hearing that Mr Sara did not have a copy of WorkAon’s file regarding the claim, Mr Wilson considered he had no choice but to adjourn. The file contained the complete record of Ms Moir’s medical history and correspondence.
At the appeal hearing before us, each party sought to put the blame on the other for the fact Mr Sara did not have the file. Ms Moir’s counsel, Mr Beck, submitted WorkAon should have disclosed it, while Mr McBride for IHC said that normal civil rules about discovery applied and it was incumbent on Mr Sara to have asked for it.
Returning to the narrative, very shortly after the adjournment, Mr Wilson emailed the parties on 12 May 2016 recording his concern about the delay and advising that he now intended to actively case manage the progression of the review.
On 8 June 2016, in response to an inquiry from FairWay about progress, Mr Sara advised that he had received a recommendation Ms Moir see Mr Bartle, an orthopaedic specialist. He would be writing to Dr Bartle shortly. Mr Sara did not respond to a further inquiry from FairWay as to when instructions had been sent. The evidence before Ellis J showed that instructions were sent to Mr Bartle on 16 June 2016 and that an appointment had been made for Ms Moir to see Mr Bartle on 8 August 2016.
Ms Moir failed to keep that appointment, and Mr Sara failed to respond to another request from FairWay on 25 August 2016 for an update on progress.
WorkAon made a further request for an update on 5 September 2016 and it and FairWay were then informed of the missed appointment and difficulties Mr Sara’s office had experienced in trying to contact Ms Moir.
On 9 September 2016 FairWay asked the parties how the review should be progressed in light of Ms Moir’s failure to attend the appointment. Mr Sara did not respond. He did reply to a further inquiry along similar lines, and advised that he had asked Mr Bartle to re-schedule the appointment. Mr Wilson sought further detail about the date and indicated he would allow one month after the appointment for the report to be produced.
On 22 September 2016, Mr Sara advised FairWay that Ms Moir had an appointment with Mr Bartle on 7 November 2016. Mr Sara made no comment about the feasibility of having the report available in December.
On 5 October 2016, Mr Wilson issued the following direction:
1.Any evidence from Dr Bartle is to be filed with Fairway and Aon no later than 5.00 pm on 19 December 2016.
2.Any response from Aon’s appointed expert to be filed with Fairway and Mr Sara no later than 5.00 pm on 30 January 2017.
3.Any final comment from Dr Bartle is to filed with Fairway and Aon no later than 5.00 pm on 14 February 2017.
4.The review is to be re-set for hearing on the first available date on or after 21 February 2017.
I note this review decision dates back to 25 August 2015. By the review hearing it will be around some 18 months old.
It does not, on the evidence before me at this time, involve an unusual or especially complex issue.
Evidence being provided significantly after the decision date will, as a general rule, (all other factors being equal) carry less weight than evidence contemporaneous to the decision date.
Having regard to that observation, the timely delay endorsed by the legislation, and the history of this review generally, I therefore put the parties on notice any evidence filed outside of the time limits set out above will not, save in the most exceptional circumstances, be admitted in evidence by me.
It would in my view be prudent for the advocates to ensure their respective experts are aware of that fact, however, this ultimately a matter for each advocate’s professional discretion.
Paul Wilson
The parties are to comply with the above instructions and deadlines. The Reviewer will only alter these instructions and deadlines for compelling reasons. The Reviewer’s instructions and deadlines will stay as they are unless you hear differently from us.
FairWay Resolution Limited will contact the parties to arrange a date for the reconvened hearing.
Rachel Atori, Fairway
For reasons that have never been properly explained, Ms Moir cancelled her 7 November 2016 appointment and a third appointment was re-scheduled for 19 December 2018. Mr Bartle’s rooms sent an email to Mr Sara advising of this development on 4 November 2016.
Mr Sara did not seek an extension of time for filing the report and was to later tell the reviewer that he was unaware at the time that the appointment had been cancelled.
The deadline of 19 December for filing the evidence having passed without compliance, Mr Wilson advised the parties on 12 January 2017 that although he was agreeable to hearing evidence from Ms Moir, he was not prepared to admit any new expert evidence.
Mr Sara replied by email on 16 January 2017 asking Mr Wilson to reconsider. Mr Sara advised that this was his first day back at work and that Mr Bartle’s report had been received in his office on 23 December 2016 but there had been no time to deal with it that day. Mr Sara forwarded a copy of the Bartle report.
Mr Wilson declined to re-consider his decision. This prompted Mr Sara to send a further email on 16 January informing him of the cancellation and rescheduling of the second appointment. The email also stated that neither Ms Moir nor Mr Bartle was aware of the deadlines (although Mr Wilson had earlier recommended Mr Bartle be advised) and ended by stating that, unless the report from Mr Bartle was admitted, the matter would be taken further, including possible judicial review proceedings.
On 17 January 2017, WorkAon notified its opposition to the evidence being admitted and on 20 January 2017, Mr Wilson confirmed his earlier decision in the following terms:
I have considered at length the whole history of this review including my previous direction as to filing of expert evidence.
I note that direction has not been complied with although it appears the applicant was in fact in receipt of the evidence now sought to be relied upon within the time scale set.
The admission of that evidence is now opposed by the Respondent.
In the circumstances given that history, the very clear direction, the fact that the evidence was available, no extension of time was sought and the objection to admission, I decline to allow its filing.
I would now appreciate comment from the parties as to whether they wish to reconvene an oral hearing or to conclude this review on the papers, allowing prior opportunity for any written submission either may wish to lodge.
This prompted a further email from Mr Sara pointing out that Mr Wilson was mistaken in saying Mr Sara had received the report prior to the deadline of 19 December. In fact, he had only received the report on 23 December 2016. Mr Sara also explained that 23 December was his last day of work for the year and in the usual last minute rush, he had overlooked seeking an extension of time. He again requested Mr Wilson reconsider the matter with the benefit of this new information and correction. In a later email, Mr Sara claimed he was not aware of the cancellation but accepted responsibility for the failure to apply for an extension of time which he described as an oversight.
On 1 February 2017, Mr Wilson issued a final direction on the issue.
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.
Ms Moir was not prepared to participate in a review without the evidence of Mr Bartle. Instead, she filed the current proceedings in the High Court on 31 May 2017. Due to what Ellis J described as “further noise occasioned by a wrangle over a fee waiver application”,[4] the hearing in the High Court did not take place until 1 March 2018.
High Court decision
[4]At [50]. Ms Moir sought a review of the decision of the High Court registrar who had required her to provide a copy of the Legal Services Agency letter granting her legal aid before the registrar would waive filing fees. Mallon J declined the application for a review. Ms Moir applied for Mallon J to rescind her decision. This too was declined as was another application by Ms Moir seeking leave to appeal Mallon J’s decision to this Court. This Court declined an application for special leave to appeal as well as an application to review a registry decision regarding refund of filing fees.
In her decision, Ellis J said she was prepared to proceed on the assumption that Mr Bartle’s report may be helpful to Ms Moir’s case although the Judge also observed that:[5]
a medical opinion of that kind is likely to be less valuable when some time has passed not only since the relevant accident (nearly four years) but the decision under review (one and a half years).
[5]Moir v IHC New Zealand Inc, above n 1, at [65].
The Judge noted that under the Act there is no absolute obligation on a reviewer to permit a party to call evidence, which in turn meant that a party did not have “a right” to call evidence. However, it was also clear, the Judge said, that the reviewer was bound by the rules of natural justice,[6] and natural justice might depending on the circumstances require a reviewer to afford a party the reasonable opportunity to call evidence.[7]
[6]At [62] citing the Accident Compensation Act, s 140.
[7]Moir v IHC New Zealand Inc, above n 1, at [63].
Justice Ellis characterised Ms Moir’s complaint against Mr Wilson as being essentially one of breach of natural justice.[8] Having reviewed the sequence of events leading up to Mr Wilson’s decision, the Judge said she was satisfied that Ms Moir had been given a reasonable opportunity to present her case on review including medical evidence “but failed to exercise it in a timely way”.[9] In the Judge’s view, there had been no vitiating breach of natural justice and the decision made by Mr Wilson was fair.
[8]At [55].
[9]At [74].
The Judge further noted that if the review were to proceed without Mr Bartle’s report, Ms Moir still had a remedy in the form of appeal rights to the District Court.[10] Mr Bartle’s report could be put in evidence on appeal and accordingly any prejudice occasioned by its absence at the review stage would be remedied.
Two further matters
[10]At [73]; Accident Compensation Act, s 149(1)(a).
Finally, for completeness in this summary of the background, we record two further matters. The first is that neither Mr Sara nor Ms Moir provided an affidavit for the purposes of the judicial review.[11] It may be that the absence of any affidavit from Mr Sara is explained by the fact he was the solicitor on the record for the judicial review proceedings. However, we would suggest the more appropriate course would have been for another independent solicitor to have issued the proceedings especially in circumstances where Mr Sara’s own role in events at issue was inevitably going to be under the spotlight.
[11]There was an affidavit from Mr Sara’s secretary.
The second matter is that Mr Wilson was represented at the High Court hearing and through counsel appears to have taken an active part in the hearing. The usual practice is for the decision maker to abide the decision of the Court and not to advocate their position.[12] No objection was however taken in the High Court. At the beginning of the appeal, we raised concerns that the submissions filed on behalf of Mr Wilson seemed to go further than simply providing information to assist the Court. In light of this indication from the panel, Ms Davies responsibly elected not to make any oral submissions.
The appeal
[12]Secretary for Internal Affairs v Pub Charity [2013] NZCA 627, [2014] NZAR 177; and Attorney‑General v Maori Land Court [1999] 1 NZLR 689 (CA).
Mr Beck emphasised that Mr Bartle’s report was relevant evidence and should have been admitted. He argued that Ellis J had erred in analysing the case solely in terms of the rules of natural justice and as a result had failed to fully appreciate and address the arguments raised on Ms Moir’s behalf.
When pressed by us to view the case through a judicial review lens and list the grounds of review other than breach of natural justice, Mr Beck however had some difficulty which may explain why the Judge took the approach she did.
The statement of claim pleaded three main grounds of review, namely that Mr Wilson’s decision:
(a)was not in accord with the statutory scheme;
(b)failed to take relevant matters into account; and
(c)was a disproportionate response to the situation.
In oral submissions, Mr Beck conceded — albeit reluctantly — that there is power under the Act for a reviewer to exclude relevant evidence. He also conceded there is power to make the type of “unless order” that was made by Mr Wilson in this case.
Mr Beck’s concession was an appropriate one. The Act confers a wide discretion on reviewers regarding the conduct and control of the review process, including what evidence (if any) is to be admitted. Timeliness and the expeditious disposal of issues are also strong imperatives under the Act. There are for example statutory time limits on the lodging of claims and reviews as well as time limits on the issuing of decisions.[13] Significantly for present purposes as regards reviews, s 140 specifically states that although a reviewer may conduct the review in any manner he or she thinks fit, they must (among other things) “adopt an investigative approach with a view to conducting the review in an informal, timely, and practical manner.”[14] Section 144 requires the reviewer to make a review decision within 28 days after the hearing of the review finishes,[15] while s 146 provides that a reviewer is deemed to have made a decision on the review in favour of the applicant if the date for the review hearing has not been set within three months following receipt of the review application.
[13]Accident Compensation Act, ss 53, 56–58.
[14]Section 140(e). Section 140 also requires the reviewer to comply with s 138; comply with any other relevant provision of the Act and any regulations made under the Act; comply with the principles of natural justice; and exercise due diligence in decision‑making.
[15]Section 144(1)(a). Section 144(1)(b) provides that if there is no hearing, the reviewer must make a review decision within 28 days after the day that the applicant, the Corporation, and all persons who would be entitled to be present and heard at the hearing specify for the purposes of this section in their agreement not to have a hearing; or if those persons do not specify a day, the day on which those persons agree not to have a hearing.
Contrary to a submission made at one point by Mr Beck, we do not accept that the time limits are only there for the benefit of a claimant. In our view, apart from anything else, the integrity of the process is also important.
The existence of the power which Mr Wilson purported to exercise not being disputed, we turn to the specific arguments about his exercise of the power in the particular circumstances of this case. For the reasons articulated by the Judge, we consider there was no breach of natural justice. That takes us to the other grounds of review pleaded in the statement of claim.
Although the word “disproportionate” is used in the statement of claim, we understand it to be an assertion that the decision was irrational.[16] In our view, having regard to the sequence of events which we have detailed above, there is no basis for contending the decision was irrational. The reasonableness of the decision must be assessed against the background of largely unexplained and unjustified inaction by an applicant over a significant period of time; the fact that the events at issue dated back to 2014 making timeliness even more important than usual; the fact it had been over a year since the review application was filed; the hearing had already been adjourned once; the reviewer had not received the level of co-operation he might reasonably be expected to have received from the applicant and her lawyer; his directions and the consequences of non-compliance had been made clear; he gave the parties an opportunity to be heard on whether he should enforce his direction; there would be further delay if the evidence was admitted; and the evidence was relevant but not pivotal, comprising as it did a retrospective medical assessment.
[16]See generally on unreasonableness Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (EWCA); Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 (CA); and Waitakere City Council v Lovelock [1997] 2 NZLR 385 (CA).
As for the claim that the decision failed to take into account relevant matters, we note that on the face of the final decision of 1 February 2017, Mr Wilson took five factors into account:
(a)The direction that the evidence must be filed no later than 5pm on 19 December 2016 was entirely unequivocal.
(b)The report dated 19 December 2016 was not filed until 16 January 2017.
(c)No extension of time for filing was sought.
(d)WorkAon objected to the evidence being admitted in breach of directions.
(e)The review would be delayed for a further three to four months, by which time the substantive decision would be almost two years old.
We note that of the five factors, two appear on the basis of the evidence to have been the fault of Ms Moir’s lawyer. We think it distinctly arguable that Mr Wilson should have taken that into account and considered whether Ms Moir should be disadvantaged as a result of something her lawyer did or omitted to do. However, we cannot take that point any further. It was not pleaded. Moreover, because Ms Moir chose not to provide an affidavit there is uncertainty as to the extent of her personal contribution to the delay. There is no doubt she did personally contribute.
The statement of claim does plead two relevant factors which it alleges Mr Wilson did not take into account. The first is that he failed to take into account that compliance with the directions was not possible (the report only being received after the deadline) and the second that he failed to take into account there was no substantial prejudice flowing from the provision of the report on 16 January 2017.
As to the first of these, we do not accept that Mr Wilson should have taken into account that it was impossible to comply with the direction. That would be for Ms Moir to take advantage of her own wrong.
We do however consider there is merit in the second point. The only prejudice to WorkAon in having the review adjourned to allow further evidence to be called was the prejudice that is inherent in any delay. There was no specific prejudice to WorkAon over and above that. In our view, Mr Wilson should have taken the absence of specific prejudice into account. He did not.
Ms Moir’s aim in bringing these proceedings however is to have the Bartle evidence admitted and our conclusion that the decision to exclude it was reached without reference to a relevant factor will not avail her. If we were to grant her a remedy on account of Mr Wilson failing to take the absence of specific prejudice into account, it would not be to direct Mr Wilson to admit the evidence. Rather the remedy would be to quash his decision to exclude it and require him to reconsider the matter afresh taking all aspects of prejudice into account.
Not only would re-consideration cause yet more delay it would not in our assessment result in a different outcome. In our view, even if all aspects of prejudice were to be taken into account, the outcome would be unlikely to change. Mr Wilson would be entitled to focus on general delay and place more weight on the prejudice inherent in that delay.
As for the prejudice to Ms Moir in having the evidence excluded, we consider this has been significantly overstated both because of the nature of the evidence (a retrospective medical assessment) and also because of Ms Moir’s right to an appeal in the District Court.[17] Mr Beck says there is no guarantee the District Court would admit the Bartle report but we consider that an unrealistic submission. Further in the highly unlikely event the District Court were to refuse to entertain admitting the Bartle report, that would be grounds for a further appeal on a question of law. As Ellis J also noted, any argument that Ms Moir would be automatically prejudiced due to the extra cost and delay involved in the appeal process is necessarily diminished by her own contribution to the delays during the review process.[18]
[17]Accident Compensation Act, s 149(1)(a).
[18]Moir v IHC New Zealand Inc, above n 1, at [73] n 19.
For all these reasons, we decline to quash Mr Wilson’s direction.
The parties should now respond forthwith to the inquiry made of them by Mr Wilson in the last sentence of his direction of 1 February 2017. The review can then proceed as soon as possible.
Outcome
The appeal is dismissed.
Normally costs would follow the event and Ms Moir being the losing party would be liable to pay costs to IHC. However, Ms Moir is legally aided and we are not persuaded there are exceptional circumstances under s 45(2) of the Legal Services Act 2011 that would justify an award of costs against Ms Moir. We therefore make no award of costs against her.
However, Mr McBride requested that we make an order specifying for the purposes of s 45(5) of the Legal Services Act what costs order would have been made against Ms Moir if s 45 had not affected her liability for costs.
We therefore order that but for s 45 of the Legal Services Act Ms Moir would have been liable to pay costs to the first respondent for a standard appeal on a band A basis with usual disbursements. We would not have certified for second counsel.
Solicitors:
Peter Sara, Dunedin for Appellant
McBride Davenport James, Wellington for First Respondent
Minter Ellison Rudd Watts, Wellington for Second Respondent
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